Mills v. State, 268

• Decision Date: 04 January 1974
• Docket Number: No. 268,268
• Citation: 19 Md.App. 614,313 A.2d 560
• Parties: James MILLS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 614

19 Md.App. 614

313 A.2d 560

James MILLS v. STATE of Maryland.

No. 268.

Court of Special Appeals of Maryland.

Jan. 4, 1974.

Alexander R. Martick, Baltimore, for appellant.

David B. Allen, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen State's Atty., Mark Van Bavel, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before MORTON, MOYLAN and GILBERT, JJ.

GILBERT, Judge.

James Mills, appellant, was convicted by a jury in the Criminal Court of Baltimore of robbery and was sentenced to incarceration for a period of six years.

In this Court appellant avers that the judgment of the Criminal Court of Baltimore should be reversed because, (1) the trial judge erred in refusing to strike the in-court identification of the appellant by the prosecuting witness on the ground that the identification was tainted by an impermissibly suggestive confrontation, and (2) that the trial judge should have granted a motion for judgment of acquittal.

The record reveals that Stanley Jenkins, at approximately 1:45 A.M. on March 24, 1972, was driving a Checker Cab. He picked up two passengers at the intersection of Pennsylvania Avenue and Gold Street and drove them to the corner of McCulloh and Bloom Streets. Appellant was identified by Jenkins as one of the two passengers. According to Jenkins, appellant was seated on the front seat on the right-hand side of the cab. The second passenger was seated on the back seat on the left-hand side of the cab. Jenkins said the appellant originally told him that he wanted to go somewhere in East Baltimore. When the cab approached McCulloh and Bloom, appellant told Jenkins to pull up. Appellant, who had his hand in his pocket, indicated to Jenkins that he would 'blow' Jenkins's 'brains out'. Appellant asked for cash, and Jenkins gave a money bag to the appellant. The passenger on the back seat, who was not otherwise identified, exited the cab and opened the leftfront door, at which time the interior lights on the cab became lighted. He then took twenty-five dollars ($25.00) from Jenkins's 'left-hand pocket'. Both passengers then fled, and Jenkins, using the taxi-cab radio, broadcast an emergency call for the police. Subsequently, appellant was apprehended in the area while he was hiding or lying under a parked motor vehicle. Jenkins went to the Central Police Station approximately one-half hour after the hold up and while there he saw the appellant. During cross-examination Jenkins stated that the appellant, who was in police custody and was the only other person in the room besides the police, was brought to Jenkins, and 'They asked me was this the man'. Jenkins said that the readily identified appellant as one of the robbers. As a result of the evidence adduced on cross-examination that there had been a one-on-one confrontation between Jenkins and the appellant, appellant's counsel, upon the completion of Jenkins's testimony, moved to strike the identification on the ground that it was impermissibly suggestive and thus tainted the in-court identification. The trial judge took the position that the appellant's motion was tardy because counsel had waited until the completion of the cross-examination. The judge also opined that the motion was denied because the State had not introduced the evidence of the confrontation but that it had first arisen on cross-examination. Furthermore, the trial judge said that there was an independent source to the identification. The trial judge was wrong.

The record is clear that neither the State for the defense was aware of a possibly illegal confrontation until that fact was established on cross-examination. When the appellant moved to strike the identification the trial judge should have treated the motion as a motion to suppress the evidence and then conducted a hearing outside of the presence of the jury on the question of illegality of the confrontation, and whether or not the identification had an independent source. Smith v. State, 6 Md.App. 59, 250 A.2d 285 (1969), cert. denied, 397 U.S. 1057, 90 S.Ct. 1402, 25 L.Ed.2d 674 (1970). Illegality of confrontation, whether shown by the State through its evidence or by the defense, is measured by the same yardstick. The fact that the defense and not the State demonstrates that a confrontation is illegal does not excuse the confrontation. We are unable to accept the trial judge's reasoning that because the defense and...