Smith v. State

• Decision Date: 10 February 1969
• Docket Number: No. 226,226
• Citation: 250 A.2d 285,6 Md.App. 59
• Parties: George Sanders SMITH v. STATE of Maryland. Jesse SAMUELS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 59

6 Md.App. 59

250 A.2d 285

George Sanders SMITH v. STATE of Maryland.

Jesse SAMUELS v. STATE of Maryland.

No. 226.

Court of Special Appeals of Maryland.

Feb. 10, 1969.

Reginald D. Malloy, Ellicott City, and James J. Casey, Hyattsville, for appellants.

William E. Brannan, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Richard J. Kinlein and Charles E. Wehland, State's Atty. and Asst. State's Atty. for Howard County, respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

These cases before us on appeal present questions with regard to evidence of the identification of an accused at trial and prior to trial, in substance as to the admissibility of such evidence and procedurally as to the manner in which it is presented.

THE ADMISSIBILITY OF IDENTIFICATION EVIDENCE

At the time Wade-Gilbert-Stovall triology of opinions were decided by the Supreme Court of the United States ¹ it was the general rule in this State that a judicial identification of the accused, made under the impartial eye of the court, was admissible. It was also the general rule that a witness' testimony as to a prior extra-judicial identification 'should be admitted for the purpose of corroborating the witness and bolstering his credibility * * *.' Judy v. State, 218 Md. 168, 174, 146 A.2d 29, 32. And testimony by a police officer or some third party as to an extrajudicial identification by an eye-witness was admissible when made under circumstances precluding the suspicion of unfairness or unreliability, Walters v. State, 242 Md. 235, 239, 218 A.2d 678, where the out of court declarant was present at the trial and We discussed Wade, Gilbert and Stovall at length in Palmer v. State, Md.App., 249 A.2d 482, filed 22 January 1968 and Tyler v. State, 5 Md.App. 265, 246 A.2d 634. We found that the rules of Wade and Gilbert apply to lineups, both pre-indictment and post-indictment, and to other pre-trial confrontations 'that are not subject to fair and meaningful objective review later at the trial.' ³ In Baldwin v. State, 5 Md.App. 22, 245 A.2d 98, we found that they do not apply to identifications made from protographs. See also Barnes v. State, supra. Wade and Gilbert were founded on the constitutional right to counsel and they held that a confrontation within their meaning was a critical stage of the proceedings. Therefore, absent a waiver of the right, such confrontation without the presence of counsel for the accused was illegal. They then fashioned exclusionary '1) The in-court identification of the accused by witnesses at such confrontation 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 confrontation identifications,' that is that they had an 'independent source.' Wade at 240 and 242 (87 S.Ct. 1926, 18 L.Ed.2d 1149).

                subject to cross-examination, Johnson v. State, 237 Md. 283, 206 A.2d 138.  It was admissible whether or not the out of court declarant made a positive in-court identification, and thus was admissible not only as corroboration of a judicial identification but as substantive evidence.  2  Johnson v. State, supra, 289, 206 A.2d 138.  See also Proctor v. State, 223 Md. 394, 164 A.2d 708; Basoff v. State, 208 Md. 643, 119 A.2d 917; Wilkins v. State, 5 Md.App. 8, 245 A.2d 80; Crumb v. State, 1 Md.App. 98, 227 A.2d 369.  The weight to be given a judicial or extra-judicial identification was a matter for the trier of fact.  Barnes v. State, 5 Md.App. 144, 245 A.2d 626; Crosby v. State, 2 Md.App. 578, 236 A.2d 33.  An extra-judicial identification is usually made either by a personal confrontation between the witness and the accused or by a viewing of photographs by the witness and the rules [250 A.2d 289] above discussed were applicable to both.  See Austin v. State, 3 Md.App. 231, 238 A.2d 569.  But neither a personal confrontation between the witness and the accused nor the viewing of photographs by the witness is a testimonial or communicative act of the accused and is not within the ambit of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Barnes v. State, supra
                rules as to evidence of identification made at an illegal confrontation.  They are
                

2) Evidence that witnesses identified the accused at such confrontation is per se to be excluded. Gilbert at 272-274 (87 S.Ct. 1951, 18 L.Ed.2d 1178).

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 at 242 (87 S.Ct. 1926, 18 LEd.2d 1149); Gilbert at 274 (87 S.Ct. 1951, 18 L.Ed.2d 1178)'.

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. at 296, 87 S.Ct. 1967, 18 L.Ed.2d 1199. And Stovall also recognized that independent of any 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.

Wade and Gilbert, therefore, affect the rules previously followed in this State with respect to the admissibility of evidence as to a judicial or extra-judicial identification only as to personal confrontations between the witness and the accused declared by those opinion to be illegal by the absence of counsel. It is only then that the exclusionary rules would apply in determinaing the admissibility of such evidence.

In Stovall the challenged confrontation was prior to 12 June 1967 and thus Wade and Gilbert were not applicable. But the Court said that it was a recognized ground of attack upon a conviction, independent of any right to counsel claim, that a pre-trial confrontation was 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to be a deble of due process of law. Such a claimed violation of due process A viewing of photographs by a witness is not rendered illegal by the absence of counsel for the accused, as there is no constitutional requirement that counsel be then present. Barnes v. State, supra. As to the admissibility of evidence of identity by photograph, the rationale of Stovall applies. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Supreme Court, after discussing the hazards of initial identification by photograph, said, at 384, at 971 of 88 S.Ct.:

of law depends on the totality of the circumstances surrounding it. Although the Court recognized that the circumstances of a confrontation may result in a denial of due process of law, it found, on the totality of the circumstances surrounding the confrontation [250 A.2d 290] there, that due process had not been denied. It did not enunciate exclusionary rules applicable when there is such a denial, but we think it follows that when a confrontation is illegal, whether by the denial of the constitutional right to counsel or the constitutional right to due process of law, the same exclusionary rules would apply. We hold that when a pre-trial confrontation is found to be illegal by the denial of due process of law, the exclusionary rules, enunciated in Wade and Gilbert, as hereinbefore set out, are applicable. Thus the admission of evidence of identification at the illegal confrontation and the admissibility of an incourt identification, as substantive, independent evidence of identity, is to the determined in accordance with those rules.

'Despite the hazards of the initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the the ignominy of arrest by allowing eyewitnesses of exonerate them through scrutiny of photographs. The danger that use of the technique any result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be Thus when it is shown that a pre-trial identification by photograph, on the totallity of the circumstances surrounding it, was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification, the admission of evidence of such identification or an in-court identification, as substantive independent evidence of identity, is determined, as when a pre-trial confrontation is shown to be illegal by denied of due process of law, pursuant to the exclusionary reles of Wade and Gilbert. ⁴ We note that the rules of law of this State relating to identification evidence existing prior to Wade and Gilbert are still effective as qualified by the exclusionary rules enunciated in those opinions.

considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, (18 L.Ed.2d 1199) and with decisions of other courts on the question of identification by photograph.'

THE PROCEDURE UPON CHALLENGE OF EVIDENCE

OF IDENTIFICATION

Evidence of the identity of the defendant may be challenged by a motion to exclude or suppress such evidence made before or during trial or by an objection to...