McChan v. State

• Decision Date: 14 April 1970
• Docket Number: No. 267,267
• Citation: 264 A.2d 133,9 Md.App. 317
• Parties: George McCHAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 317

9 Md.App. 317

264 A.2d 133

George McCHAN v. STATE of Maryland.

No. 267.

Court of Special Appeals of Maryland.

April 14, 1970.

David B. Allen, with Milton B. Allen, Baltimore, on brief, for appellant.

T. Joseph Touhey, Asst. State's Atty., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. and Robert C. Ozer, Asst, State's Atty., for Baltimore City respectively and Julian B. Stevens, Jr., State's Atty. for Anne Arundel County, on beief, for appellee.

Argued before MORTON, ORTH and THOMPSON, JJ., and WILLIAM J. McWILLIAMS, Special Judge.

ORTH, Judge.

George McChan (appellant), charged with the murder of Albert Poland Polotsky, was tried by a jury in the Circuit Court for Anne Arundel County. ¹ The jury rendered a verdict of guilty of murder in the first degree, adding thereto the words 'without capital punishment.' See Code, Art. 27, § 413. The two questions presented on appeal involve the admissibility of evidence of identifications of appellant, judicial and extra-judicial.

The basic principle enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 is that a lineup is a critical stage of the prosecution at which the accused is as much entitled to aid of counsel as at the trial itself. 388 U.S. 236, 87 S.Ct. 1926, Wade and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 fashioned exclusionary rules 'to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel.' Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199. The precise holdings in Wade and Gilbert apply only to a post-indictment lineup conducted for identification purposes without notice to and in absence of the accused's appointed counsel, see Tender v. State, 2 Md.App. 692, 237 A.2d 65, but we have found other pre-trial confrontations to be within the contemplation of those opinions. See Palmer v. State, 5 Md.App. 691, 249 A.2d 482; Smith and Samuels v. State, 6 Md.App. 59, 250 A.2d 285. Stovall held that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after 12 June 1967. 388 U.S. 296, 87 S.Ct. 1967. But Stovall also recognized that independent of the right to counsel claim, a confrontation may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law. In Smith and Samuels we held that when a pretrial confrontation is so held to be illegal as violating due process of law, the same exclusionary rules would be applicable as when such confrontation was found to be illegal by absence of counsel. 6 Md.App. 66, 250 A.2d 285.

I

Appellant appeared in a post-indictment lineup conducted on 28 December 1966. Prior to trial appellant filed a motion 'to exclude from consideration as evidence any identification testimony and evidence.' The grounds were that a lineup at which identification was made was conducted in derogation of appellant's constitutional right to counsel and was thus illegal and that the identification of such illegal lineup 'contributed substantially to the proposed courtroom identification and is so intertwined thereon that it is impossible for the Court to distinguish the extent to which said lineup identification influenced or affected or will effect the proposed courtroom identification.' Upon hearing the motion was denied. Appellant contends the denial was error.

We accept for the purpose of decision that appellant did not have the assistance of counsel at the lineup in question and did not effectively waive the right. Even so he was not entitled to the application of the exclusionary rules of Wade and Gilbert because the lineup was conducted prior to 12 June 1967. Appellant argues that the lineup here was illegal due to the absence of counsel despite that it was pre-entitled to the assistance of counsel at the and Gilbert. He urges that he was lineup under the dictates of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We do not agree. Massiah, Escobedo and Miranda apply the right to assistance of counsel when the right against self-incrimination is involved. See Dixon v. State, 1 Md.App. 623, 626, 232 A.2d 538. The constitutional right against self-incrimination 'protects and accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature * * *.' Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908. The mere appearance of an accused in a lineup does not involve self-incrimination. 'We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.' United States v. Wade, supra, 388 U.S. at 222, 87 S.Ct. at 1930. Massiah, Escobedo and Miranda are simply not applicable to the viewing of a suspect for the purpose of identification.

Since at the time the lineup here challenged was conducted, mere absence of counsel did not render it illegal, the exclusionary rules of Wade and Gilbert were not applicable. We hold that within the frame of reference of the question presented the lower court did not err in denying the motion for judgment of acquittal.

II

Appellant contends that aside from the right to counsel claim the lineup was so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process of law. On this premise also he now ascribes error to the denial of the pretrial motion. But this point was tried and decided below in connection with that motion. Defense counsel made a abundantly clear to the hearing court that they were relying only on the lack of counsel at the lineup. The transcript reads:

'THE COURT: Is it your argument the line-up itself was unfair?

MR. CARROLL (defense counsel); Doesn't make any difference whether the line-up was fair or not.

THE COURT: Do you contend it was an unfair line-up?

MR. CARROLL: I contend the man was denied his Sixth Amendment right to have counsel at a critical stage of the proceedings. Whether the line-up was fair or unfair, we don't know. * * *.'

Counsel said that 'the point is simple, basic. Mr. McChan was denied his Sixth Amendment rights' to assistance of counsel. And after extensive argument counsel said: 'We are not, for purposes of this argument, concerned about whether the lineup was fair or not.' Just before the court ruled it said: 'The whole thrust of your argument is Mr. McChan was denied counsel at a crucial point in the proceedings.' Defense counsel answered, 'Correct.'

The right to counsel claim was the only point presented by the pretrial motion with respect to the issue of the legality of the lineup. We have disposed of it and no other question is properly before us. Rule 1085.

III

When the case came on for trial in the Circuit Court for Anne Arundel County, defense counsel called the court's attention to the fact that a motion to suppress the identification evidence had been filed in the Criminal Court of Baltimore and determined prior to the suggestion of removal. He filed the motion again in the Circuit Court for Anne Arundel County-'The same motion for exclusion of testimony, and on which a ruling was made.' He said, '(O)f course, if the Court feels that we have tried this motion already been ruled by a Court of competent jurisdiction and that this Court is bound by it and we are bound by it, then we would submit to such a ruling.' The court found that the motion had been ruled on by a court of competent jurisidiction and that it would not entertain the motion because 'the matter has already been ruled on.' We agree that the trial court was not obliged to hear and determine the motion to suppress the identification evidence which had already been fully heard and determined. We find no error in the refusal to do so, particularly in view of defense counsel's submission to the action of the trial court.

Viola Forrester the victim of the assault with intent to murder, made a positive judicial identification of appellant. This evidence came in without objection. Also without objection she testified that she had identified appellant from a group of five photographs shown her while she was hospitalized as a result of her injuries received in the robbery and that she had identified appellant at a lineup. See Rules 522 d 2, 725 f. She was cross-examined at length with regard to the extra-judicial identifications. It was elicited that she 'got a glimpse' of appellant once thereafter when 'we were supposed to be going to court' and that she had also seen him on the morning of the trial. It appeared that she and another witness named Willie Clark were driven to Annapolis from Baltimore by the police. They were in the back seat of the automobile at the Baltimore City jail, waiting for the police to bring appellant out. A car came out of the jail gate and stopped beside the car she was in. Appellant was seated in the car and she saw him. The two cars were led to Annapolis by an officer on a motorcycle. The State then adduced testimony from police officers as to the extra-judicial identifications and the description of the robbers given by Viola Forrester. When trial resumed the next morning appellant filed a motion to exclude the courtroom identification of him made by Viola Forrester and to be made by Willie Clark. The ground stated was that the confrontations...