Reeves v. State

• Decision Date: 19 February 1968
• Docket Number: No. 24,24
• Citation: 3 Md.App. 195,238 A.2d 307
• Parties: Charles James REEVES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 195

3 Md.App. 195

238 A.2d 307

Charles James REEVES v. STATE of Maryland.

No. 24.

Court of Special Appeals of Maryland.

Feb. 19, 1968.

Morton P. Fisher, Jr., Baltimore, for appellant.

Bernard L. Silbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Charles E. Moylan, Jr., State's Atty., for Baltimore City, Baltimore, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MORTON, Judge.

The Appellant, Charles James Reeves, was convicted of rape, without capital punishment, by a jury in the Criminal Court of Baltimore on April 27, 1966. This was Reeves' second trial and conviction, his first conviction having been vitiated as a result of Habeas Corpus proceedings in the United States Fourth Circuit Court of Appeals. (See Reeves v. Warden, 346 F.2d 915). In his first trial, Reeves had been convicted of rape ¹ and sentenced to life imprisonment. In his second trial the presiding judge sentenced him on June 10, 1966, to twenty years imprisonment (the maximum allowed by the statute under the jury's verdict) but no credit was allowed for the prison time served by Reeves under the first sentence, namely, from April 8, 1960 to the date of his second sentencing.

The record indicates that on July 24, 1959, shortly after midnight, the Baltimore Police received a complaint from the prosecuting witness that she had been raped by a Negro male in her apartment located on Charles Street in the City of Baltimore. She told the police, and testified at the trial, that her attacker held a broken Vodka bottle to her throat, forced her to bed and attacked her. She escaped some forty-five minutes later, and as she ran down the stairs, the Vodka bottle was thrown at her, breaking on the stairs. The police arrived at the scene within minutes and, after questioning, sent her to be examined by a doctor.

The next morning she was shown a number of photographs by the police and identified Reeves as the man who had attacked her. Reeves was then arrested at his sister's home, without a warrant, placed in a lineup and again identified by the victim.

1.

In this appeal, it is first contended by Reeves that his rights were violated by the admission of testimony of the victim and the police relating to identifications made at the lineup and at a subsequent confrontation with the victim during which Reeves was required to speak, it appearing that she had purposely engaged her attacker in conversation so that later she could identify him. It is contended that the failure of the police to advise the Appellant of his right to counsel and his right to remain silent made the pretrial identifications illegal; that subsequent identifications at trial were tainted; and that all testimony relating thereto was inadmissible.

In support of this contention, reliance is placed upon the holdings in Wade v. United States, 358 F.2d 557 (5th Cir. 1966) and People v. Gilbert, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365 (1965), the decisions of the Supreme Court of the United States in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, not having been announced at the time Appellant's Brief was filed. Appellant's reliance on Wade and Gilbert is, however, misplaced.

It is true that the Supreme Court in Wade and Gilbert held that 'a post indictment pre-trial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.' Gilbert, supra, p. 272, 87 S.Ct. p. 1956. However, in Stoval v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Court specifically 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 this date (June 12, 1967)'. Thus, the new standards governing the conduct by the police of an identification lineup are not available to Reeves. Tender v. State, 2 Md.App. 692, 237 A.2d 65 (filed 1-19-68). In this State, at the time of Reeves' lineup, evidence of an extra-judicial lineup was admissible if conducted under conditions of fairness and reliability; and the absence of counsel at such lineup did not, per se, create a condition of unfairness or unreliability. Johnson v. State, 237 Md. 283, 289, 206 A.2d 138; Proctor v. State, 223 Md. 394, 164 A.2d 708. Nadolski v. State, 1 Md.App. 304, 229 A.2d 598; Crumb v. State, 1 Md.App. 98, 227 A.2d 369. There has been no showing by the Appellant that his lineup identification was otherwise conducted under conditions of unfairness or unreliability.

The Appellant's assertion that his Fifth Amendment rights were violated when he was required to utter certain words as a part of the lineup procedure and the confrontation is without merit. In Wade, supra, the Supreme Court said:

'* * * compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a 'testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt. We held in Schmerber, supra (Schmerber v. State of California, 384 U.S. 757), at 761, 86 S.Ct. 1826, 16 L.Ed.2d 908, that the distinction to be drawn under the Fifth Amendment privilege against self-incrimination is one between an accused's 'communications' in whatever form, vocal or physical, and 'compulsion which makes a suspect or accused the source of 'real or physical evidence," Schmerber, supra, at 764, 86 S.Ct. at 1832. We recognize that 'both federal and state courts have usually held that * * * (the privilege) offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.' Id., at 764. None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pretrial lineup.'

2.

The Appellant next contends that certain statements made by him to the police officers regarding his whereabouts at the time of the commission of the crime and introduced in rebuttal were, per se, involuntary because the statements were obtained without advising him of his right to counsel and were elicited as fruits of an illegal arrest. He cites the holdings in 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, in support of his contention that the statements were involuntary, per se, Escobedo, however, has no application since there is no showing that Reeves requested and was denied counsel prior to making the statements; nor is Reeves within the reach of Miranda since his trial was begun prior to June 13, 1966, its effective date. Carrington v. State, 1 Md.App. 353, 357, 230 A.2d 112. There is no showing that the statements were otherwise involuntary and, accordingly, there was no error in their admission.

Likewise, the statements were not rendered inadmissible even assuming the arrest was illegal, since they were not the fruits of an unreasonable search. Nadolski v. State, 1 Md.App. 304, 229 A.2d 598; Howard v. State, 1 Md.App. 379, 230 A.2d 115; Fisher v. State, 1 Md.App. 505, 231 A.2d 720. The Appellant's reliance on Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, is misplaced since that case 'does not control prosecutions in State courts * * *.' Crowe and Williston v. State, 240 Md. 144, 213 A.2d 558.

3.

The Appellant also contends that the trial judge committed prejudicial error in advising the jury during the course of his instructions that it had 'a certain prerogative not normally enjoyed by a criminal jury,' indicating that in the event of a guilty verdict it could prevent the imposition of the death sentence by accompanying its verdict with the words 'without capital punishment'. He argues 'that thinking it had control over punishment, the jury was more likely to bring in the compromise verdict of guilty, without capital punishment, and that the defendant's chances for acquittal were gravely prejudiced.' We find this contention to be without merit. The trial judge included in his instructions a clear admonition that 'the imposition of sentence is purely within the province of the trial judge.' In Shoemaker v. State, 228 Md. 462, 180 A.2d 682, cited by the Appellant, references by the State's Attorney in closing argument were condemned by the Court of Appeals since 'the jurors 'were likely to have been * * * influenced to the prejudice of the accused." The facts and rationale of that case, in our opinion, are inapposite here.

Also we find no merit in the contention that the trial court's instruction that 'the jury is judge of the law (as well as of the facts) was in violation of the defendant's rights under the United States Constitution.' The Court of Appeals of Maryland and this Court have ruled many times that this contention is without merit. See Giles v. State of Maryland, 229 Md. 370, 183 A.2d 359, appeal dism. 372 U.S. 767; Avey v. State, 1 Md.App. 178, 187, 228 A.2d 614; Lewis v. State, 2 Md.App. 678, 237 A.2d 73 (filed 1-5-68).

4.

The Appellant next complains that the trial judge committed prejudicial error in refusing to permit testimony offered by the Appellant which would have shown that clothes taken from the person of the Appellant and from his home were tested for semen stains and subjected to spectographic analysis against paint and dirt scrapings taken from the fire escape leading to the prosecuting...