Proctor v. State
| Decision Date | 09 November 1960 |
| Docket Number | No. 21,21 |
| Citation | 223 Md. 394,164 A.2d 708 |
| Parties | William Roger PROCTOR v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Leo William Dunn, Jr., Hyattsville, for appellant.
Mary Arabian, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., William L. Kahler, and Frank P. Flury, State's Atty. and Deputy State's Atty., respectively, of Prince Georges County, Upper Marlboro, on the brief), for appellee.
Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
The appellant, Proctor, was indicted along with two others, Swann and Carle, on charges of assault with a deadly weapon with intent to rob, of assault with intent to rob and simple assault and battery. Each offense was charged in a separate count in the indictment and they were set forth in the order stated. Proctor was found not guilty on the first count, but guilty on the second and was sentenced to ten years' imprisonment. On this appeal he raises two questions growing out of an extra-judicial identification of himself. He claims that testimony of a police officer as to an identification made by the victim of the assault, one Martin, was improperly admitted and calls for a reversal (a) because the circumstances of the examination were not such as to preclude all suspicion of unfairness and unreliability, and (b) because the party making the identification did not testify to it himself. The State opposes both of these contentions and further contends that even if this evidence was erroneously admitted, there was no prejudicial error, since this testimony was not vital and there was ample other evidence to sustain the conviction.
One of Proctor's co-defendants, Carle, pleaded guilty and testified for the State. The other, Swann, a brother-in-law of Carle, was tried with Proctor. A motion for a directed verdict of not guilty was granted as to Swann at the conclusion of the State's case on the ground that the case against him rested entirely upon the uncorroborated testimony or statements of accomplices. After Swann had thus been acquitted, he was called as a witness by Proctor. Neither side has included his testimony in its appendix, and the jury does not appear to have believed his account of the events occurring on the night of the crime for which Proctor was convicted. Swann sought to establish an alibi.
The victim of the attack, Mr. Martin, testified that he was at his gasoline filling station on the Indian Head Highway in Prince George's County six miles from the District of Columbia line on the night of November 15, 1959, that at about 11:10 p. m. he observed a car first parked near his service station and then cruising slowly by it, that he saw two men, whom he identified in court as Proctor and Carle coming up from the side (not along the driveway) towards the filling station, that he got a glimpse of them before they reached the Coca Cola machine, that at about that time he put his gun in his pocket, that the two men paused briefly at the Coca Cola machine and then entered the office where he (Martin) was then standing, that the two were walking one behind the other, that Proctor walked up right in front of Martin, that the other man (Carle) who was behind Proctor had a gun pointed at Martin's head and said, 'This is a hold up.' Martin and Carle both fired, Carle first. (Carle says Martin shot first.) Martin fired three shots and the robbers both started out of the door at the same time. Carle got out first. Proctor fell about ten or fifteen feet from the door, the other man helped him to get up and away, and they went down the driveway. Martin was wounded in the face. He thought at the time that he had hit the man who slumped to the floor, but on the stand said he didn't think so. Some of his testimony, however, tends to show that Martin did short the man who fell (and Carle's tends strongly to do so).
As his attackers went off, Martin called the police, and an ambulance was summoned. He was taken to Hadley Memorial Hospital, in Washington, where a bullet was removed from his cheek. He was released from that hospital after about an hour and was then taken by Sergeant Nalley, of the Prince George's County Police Department, to Casualty Hospital, also in Washington, where they arrived at about 12:45 a. m., November 16th. The purpose of this visit was to see if Martin could identify two suspects, who were there. One was Proctor, who had arrived at about 11:35 p. m., November 15th, and was being operated on for a gunshot wound. The other was Carle who had accompanied Proctor to the hospital.
Martin testified that at the Casualty Hospital, in speaking to Sergeant Nalley, he said: 'That man is exactly the same height and he is slender, he's got a mustache, and he looks like the man that was in my station.' Martin admits that he did not identify him positively at that time. The Police Sergeant testified that Martin could not then identify either of the men (Proctor or Carle).
Sergeant Nalley, who testified after Mr. Martin, further testified that on November 24, 1959, he placed Proctor, who is a Negro, and twelve other Negroes whose appearances he could not remember, in the (magistrate's) court room at Hyattsville, that he then asked Martin to go into the court room and see if he could tell whether Proctor was there, and that Martin 'went back and identified Proctor as being the man he had seen that night at the robbery.' This testimony was objected to, and both of the appellant's contentions are based upon its admission.
Carle's testimony contained a full admission of his own part in the attempted robbery, and he testified to Proctor's active participation with him in the attempt. Carle's account of what occurred was substantially the same as Martin's. Carle's testimony also identified Swann as the driver of the car in which he and Proctor both arrived at and departed from Martin's filling station. His testimony against Proctor is corroborated in many material respects by Martin's testimony.
The evidence against Proctor as a whole, excluding, however, that relating to Martin's identification of him at the Hyattsville line-up, would be ample to sustain his conviction on the charge of attempted robbery. The case might, therefore, be decided on the ground that if there was any error, it was not prejudicial; but because of some possible doubt as to whether or not the testimony in question had any material bearing upon the jury's determination of the vital issue of identity, we shall not rest our decision on that ground.
We shall take up the appellant's contentions in the reverse order from that in which he has stated them, and will turn first to the admissibility of the police officer's testimony that Martin did make an extrajudicial identification of Proctor at Hyattsville. We may note at this point that Martin's tentative identification of Proctor at the Casualty Hospital to which he testified on direct examination, had been strongly attacked on cross-examination. (This was later followed up by cross-examination of Sergeant Nalley at the end of his testimony, when he stated that Martin could not identify either of the men at the hospital).
The evidence under attack (assuming that the identification was made under proper circumstances) was admissible at least for the purpose of corroborating Martin's testimony with regard to his tentative identification of Proctor at the Casualty Hospital and his identification of Proctor at the trial. Basoff v. State, 208 Md. 643, 119 A.2d 917; Judy v. State, 218 Md. 168, 146 A.2d 29; Bulluck v. State, 219 Md. 67, 148 A.2d 433. None of those cases is precisely on all fours with the present case in every respect, but we think that the differences are not such as to prevent the operation of the rule. Thus, in Basoff, the testimony of a policewoman that the complaining witness had identified a photograph of the defendant was held admissible. Here the complaining witness identified the defendant himself. In Judy, the witness was permitted to testify with regard to his own identification of a photograph of the defendant. In Bulluck, a police officer was permitted to testify concerning an identification made by the complaining witness and...
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Webster v. State
...of a judicial identification but as substantive evidence of criminal agency. Johnson at 289, 206 A.2d 138. See Proctor v. State, 223 Md. 394, 398-400, 164 A.2d 708 (1960); Basoff v. State, 208 Md. 643, 650-651, 119 A.2d 917 (1956). This was all set out in Smith and Samuels v. State, 6 Md.Ap......
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...suspicion of unfairness or unreliability.' See also Johnson v. State, 237 Md. 283, 289, 206 A.2d 138 (1965); Proctor v. State, 223 Md. 394, 164 A.2d 708 (1960); Judy v. State, 218 Md. 168, 146 A.2d 29 (1958). See also Annot., 71 A.L.R.2d 449 In 1967 the United States Supreme Court in a tril......
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Tyler v. State
...... . Page 556 . In Judy v. State, 218 Md. 168, 146 A.2d 29 (1958), the admissible evidence of the extrajudicial identification was of the defendant as the criminal agent who attempted to commit an armed robbery. In Proctor v. State, 223 Md. 394, 164 A.2d 708 [660 A.2d 1016] (1960), the admissible evidence of the pretrial identification was also of the defendant as one who assaulted the victim with intent to rob. In Johnson v. State, 237 Md. 283, 206 A.2d 138 (1965), the evidence of extrajudicial identifications was ......
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United States v. Wade, 334
...v. State, 237 Md. 283, 206 A.2d 138 (1965). 16. An instructive example of the defendant's predicament may be found in Proctor v. State, 223 Md. 394, 164 A.2d 708 (1960). A prior identification is admissible in Maryland only under the salutary rule that it cannot have been made 'under condit......