Palmer v. State
Decision Date | 22 January 1969 |
Docket Number | No. 162,162 |
Citation | 5 Md.App. 691,249 A.2d 482 |
Parties | James C. PALMER v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Karl H. Goodman, Baltimore, for appellant.
Dickee M. Howard, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr. and C. Allan Herndon, Jr., State's Atty. and Asst. State's Atty. for Baltimore City, respectively, Baltimore, on the brief, for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
The questions presented on this appeal involve the application of the rules of law enunciated or construed in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, to the admission of evidence with respect to the identification of the appellant. The appellant was charged with the crime of robbery with a deadly weapon in each of two indictments, the indictments were tried together by the court in the Criminal Court of Baltimore, he was convicted of the offense under each indictment and a 20 year sentence was imposed on each conviction, the sentences to run consecutively.
The basic principle enunciated in Wade 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. The Court in Wade and Gilbert then went on to 'fashion 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, 388 U.S. at 297, 87 S.Ct. at 1970. As we understand Wade, Gilbert and Stovall, when a post-indictment lineup is conducted for identification purposes without notice to and in the absence of the accused's appointed counsel 1:
1) The incourt identifications of the accused by witnesses who viewed such lineup are to be excluded unless the prosecution establishes 'by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification,' that is that they had an 'independent source. 2 Wade, 388 U.S. at 240 and 242, 87 S.Ct. at 1939 2) Evidence that witnesses identified the accused at such lineup is per se to be excluded. Gilbert, 388 U.S. at 272-274, 87 S.Ct. 1951. 3
3) The admission of evidence, to be excluded under 1) and 2) is prejudicial error unless, in any event, its introduction was harmless error beyond a reasonable doubt, applying Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 2d 705; Wade, 388 U.S. at 242, 87 S.Ct. 1926; Gilbert, 388 U.S. at 274, 87 S.Ct. at 1957.
4) '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).' Stovall, 388 U.S. at 296, 87 S.Ct. at 1969. 4
5) Independent of any right to counsel claim, a confrontation may be 'so unnecessarily suggestive and conductive to irreparable mistaken identification' as to be a denial of due process of law. 'However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it * * *.' Stovall, at 301-302, 87 S.Ct. at 1972.
The precise holdings in Wade and Gilbert apply only to a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused's appointed counsel. See Tender v. State, 2 Md.App. 692, 237 A.2d 65. But the Court said in Wade, 388 U.S. at 227, 87 S.Ct. at 1932:
And it stated, Wade, at 229, 87 S.Ct. at 1933:
5
7 We think it necessarily follows that the rules of Wade and Gilbert apply also to a lineup conducted before indictment and to other pretrial confrontations within the meaning of Tyler. We again note that in Stovall, 388 U.S. at 300, 87 S.Ct. at 1969, the Court said that Wade and Gilbert affect '* * * all future cases which involve confrontations for identification purposes conducted in the absence of counsel * * *.' (Emphasis supplied.) It did not limit their effect to 'post-indictment lineups.' And we think also that Wade and Gilbert contemplate that if an accused is to be so confronted by identifying witnesses before his trial and is not represented by counsel and cannot afford to employ counsel 6, counsel must be provided for him unless he intelligently waives the right. Although in Wade and Gilbert counsel had already been appointed and no argument was made in either case that notice to counsel would have prejudicially delayed the confrontations, the Court appeared to recognize that in some circumstances notice to and the presence of the accused's own counsel would result in prejudicial delay. Wade, 388 U.S. at 237, 87 S.Ct. 1926. And even though the Court did not specifically so state, we think it logically follows that where counsel had not been already appointed, the time necessary to have counsel appointed and assure his presence would, in some circumstances, result in delay prejudicial to the prosecution. But the Court expressly left open the question 'whether the presence of substitute counsel might not suffice where notification and presence of the suspect's own counsel would result in prejudicial delay,' noting (note 27 at 237, 87 S.Ct. at 1938): 'Although the right to counsel usually means a right to the suspect's own counsel, provision for substitute counsel may be justified on the ground that the substitute counsel's presence may eliminate the hazards which render a lineup a critical stage for the presence of the suspect's own counsel.'
In the instant case there was an in-court identification of the appellant at the guilt stage of the trial by each of the robbery victims. One of the victims, David Watson, had previously identified the appellant at a confrontation in the courtroom at the Western Police Station. The other victim, Sidney Lipman, had previously identified the appellant at a lineup at Central Police Headquarters. Both the confrontation at Western and the lineup were after 12 June 1967 but were before the appellant was indicted. Prior to trial the appellant filed a motion to suppress evidence. He moved that 'any evidence obtained by the State in consequence of the lineup in which he appeared following his arrest be suppressed as said evidence was obtained in violation of his rights guaranteed by the Sixth Amendment of the United States Constitution.' He alleged as reasons that he had not been advised of his right to private or appointed counsel for representation during the lineup and that he was not represented by counsel, thereat. When the cases came up for trial defense counsel brought to the court's attention that the motion had been filed. The State said that its first witness, Watson, had not attended the lineup so that the motion was not addressed to the case in which he was involved. The court said that it would take Watson's testimony and As Watson began his testimony defense counsel said to the court that although Watson had not attended a lineup he had confronted the appellant who 'was just hustled into the courtroom, and Mr. Watson was brought in moments later.' Watson at that time identified the appellant. Counsel claimed 'This certainly would be even worse' than an identification at a lineup. The court said that this would have to be developed on cross-examination and it would have to decide whether it went to the weight or to the motion to suppress at that time. During the course of his testimony, Watson identified the appellant as the man who had robbed him. Timely objection was made and overruled. Thereafter it was brought out by the State that the witness had gone to the Western Police Station at the request of the police. A Lieutenant Etheridge The appellant was brought in by himself; no other people had been brought in-'he was the first case.' Watson was seated in the rear of the courtroom in the company of an Officer Sullivan. 'I had orders that if I recognized him, I was to stand up and say, 'that's the man." When the appellant was brought in 'I picked the man out. I...
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