Smith v. State
Decision Date | 04 February 1969 |
Docket Number | No. 206,206 |
Citation | 6 Md.App. 23,249 A.2d 732 |
Parties | Paul SMITH v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Leroy W. Carroll, Baltimore, on brief, for appellant.
Dickee M. Howard, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., Hilary D. Caplan and Sandra A. Furtig, State's Atty. and Asst. State's Attys. for Baltimore City, respectively, on brief, for appellee.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
The questions presented on this appeal from the appellant's conviction of robbery with a deadly weapon by a jury in the Criminal Court of Baltimore and sentence of 12 years pertain to the admissibility of an in-court identification of him by the victim.
When the case came on for trial defense counsel requested the trial court, as a preliminary matter, to rule on a pretrial 'confrontation of the accused with the witness at the Police Station.' It seems that what counsel desired was the exclusion of an in-court identification but he did not submit such a motion in writing (see Md. Rule 725 c). The court ordered that the point be deferred for determination at the trial of the general issue. Md. Rule 725 d. At the trial of the general issue the victim, James Saunders, a bus driver, after he described how he had been robbed by two men, was asked by the State if he saw either of the robbers in the courtroom. Defense counsel said, 'Your Honor, I would like, at this time, to make a motion to-' and was interrupted by the court saying it overruled the objection since the question was whether the witness saw either of the men in the courtroom. The transcript then reads:
'By Miss Furtig (Assistant State's Attorney) Do you see either of the persons that were on the bus that night-
A. Yes-this young man was one of them (indicating).
Q. -in the courtroom today? Indicating the defendant, Paul Smith, for the record. Where was this-
Mr. Karceski (defense counsel): Excuse me-Your Honor, again I would like to renew my motion on the basis that I feel the identification, according to the recent decisions, may be tainted and-'
The court said it understood that the only thing before it was the question whether the witness saw either of the men in the courtroom and overruled the objection. It is clear from the record that despite the understanding of the trial court there was before the jury the in-court identification of the appellant as one of the robbers and that the evidence was received over objection. We think that the court properly should not have admitted the testimony as to the identification until it had made a determination of its admissibility out of the presence of the jury as defense counsel had made known he desired. See Md. Rules 522 b and 725 f. The examination of the witness then continued as to occurrences during and following the robbery until he said that while making out his report for his employer 'the dispatcher that is always on duty, he told me, say they had picked up a few fellows, and would I go down and identify them.' He went down to the Western Police Station. At this point the court said that it would have to make an inquiry in connection with counsel's objection and the jury was excluded. Out of the presence of the jury, testimony as to the viewing of the appellant by the victim at the police station was received from the victim, a police sergeant and the appellant. The substance of the testimony offered by the State was that when Saunders arrived at the police station he asked directions of the desk sergeant; he was directed to a room down a corridor; a supervisor of the witness, standing by the door to the room told him to look through a small window in the door; he looked through the window and saw men in the room, some in police uniform, others in plain clothes; the appellant and the other robber were among them and the witness identified them. No polict officer was present when he first made the identification and he recognized the robbers by their features and clothing. The court denied the 'motion to strike from the evidence all the evidence concerning identification of the defendant; that is identification made in the courtroom on the basis of identification made at the Police Station.' It said:
'* * * (H)ere is a case where Mr. Saunders was told by his supervisor that they have arrested some people down at the Western Police Station, and you go down there and see if the people they have arrested are the people who held you up, or words to that effect. There is no evidence, whatsoever-that is, credible evidence-of any collusion on the part of the Police Department to stage this viewing or this confrontation.
I accept Sgt. Vogelsang's testimony that he had had no conversation, whatsoever, with Mr. Saunders before Mr. Saunders told him that he saw behind the door the people, or, at least, the defendant among the persons in the room. So, we have no complicity here, we have no aiding and abetting, we have no flagging of the defendant.
The defendant says he was in handcuffs. Sgt. Vogelsang wasn't asked about that by either counsel. Mr. Saunders says he doesn't think he was, but he is not certain. But, it seems to me it would make little or no difference whether he was in handcuffs or not, because, certainly, he was in police custody. There were police in the room, and other people in the room. Mr. Saunders says there were people in the room in civilian clothes, in addition to those in uniform.
There is no evidence about how many other people in the room were either white or black, or Caucasian or Negro. But, in any event, Mr. Saunders, I am satisfied from the credible evidence, was not aided, abetted, or assisted by anybody in looking through the window, and I am satisfied it was the window in the door and not a picture-type window described by the defendant. And seeing the defendant, whom he said he identified not only from his face, but from his wearing apparel-the light color-I believe he said the yellow jacket which the man was wearing.
We must further note that this takes place approximately two and a half hours after Mr. Saunders has been held up, while all these facts are fresh in his mind. It seems to me that this case is no different from the case where a man, as has sometimes happened, as the courts have noted, been in a police station even making out a report of the crime that has been committed upon him when the man who has committed that crime is brought into the Police Station in his presence on a charge of some other crime, and the complainant says, 'Why, there's the man, there, who did it.' I cannot see how, under these circumstances, there was a necessity that counsel be appointed for Mr. Smith at the Police Station. I find that the police were no party to this. There were no steps taken at all to flag out Mr. Smith by the police as one of the perpetrators, but that Mr. Saunders was merely asked to go and look in the window and to see-he was asked, And he says he looked in that window, and he saw that two men-and this is within two and a half hours after he was robbed-and he says he identified them by face and by apparel. * * *
Under the circumstances as they have been related to the Court, and the credible evidence in connection therewith, I find that there was no unfairness which would preclude the evidence of the identification in court; that this was not, in fact, a lineup; that it was not staged by the police for the benefit of Mr. Saunders; that the police were not a party to it. There was not evidence of any aiding and abetting or any hinting or suggesting that Mr. Smith was the perpetrator.' 2
After the ruling of the court the State presented to the jury through the testimony of Saunders the fact of the identification at the police station and the circumstances under which it was made. The testimony came into evidence without objection after a suggestion by the trial judge: 'It would seem to me * * * that this evidence which I have taken out of the presence of the jury would now be admissible in the presence of the jury.'
Two questions are presented for review by the appellant. He asks whether the pre-trial identification procedure denied him due process of law and whether he had the right to the presence of counsel when the identification was made. He answers both in the affirmative. But that these...
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