State v. Boyd

• Citation: 294 A.2d 459
• Parties: STATE of Maine v. Paul BOYD.
• Decision Date: 07 September 1972
• Court: Supreme Judicial Court of Maine (US)

Page 459

294 A.2d 459

STATE of Maine v. Paul BOYD.

Supreme Judicial Court of Maine.

Sept. 7, 1972.

Joseph E. Brennan, County Atty., Portland, for plaintiff.

Caroline Glassman, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WEATHERBEE, Justice.

On September 11, 1970 the Defendant, a young black man, was found guilty by a jury of the crime of rape from which this appeal is taken.

The testimony reveals that the jury could properly have found that about 9:30 P.M. on the night of June 22, 1970 the victim of the assault, a 17 year old girl, was walking up Congress Street in Portland approaching Longfellow Square from the west. A short way above the Sportsman's Grill, and on the opposite side of the street, the girl overtook a man who was also walking on the sidewalk.

As the girl started to pass this man he asked her directions to the Westfield Hotel. She pointed out the direction of the hotel but because of a bend in the street it could not be seen from where they were conversing and she started to walk back down Congress Street towards where the hotel could be seen.

Suddenly, the man pulled her into the bushes, dragged her into a vacant lot on the hillside, threatened her with death and brutally beat her. During the next hour and a half or two hours her assailant moved the girl to several areas around the hillside between the Maine Medical Center and Congress Street, and forced her to have sexual intercourse with him on several occasions until he finally left the area.

The girl thereupon made her way up the field to the Maine Medical Center where she was given medical assistance at the emergency clinic. She testified that her parents met her at the hospital and accompanied her to the police station where she gave a description of her assailant. There is nothing in the testimony as to how she described the assailant to the police except that he wore a blue blazer and light trousers. At trial she said only that he was 'a man' wearing 'a blue shirt, blue colored windbreaker, light pants and white sneakers'.

During the evening of June 23, 1971 the police went to the room of the Defendant at the Westfield Hotel. They requested the Defendant, along with two other black men, to come to the police station for the purpose of an identification. At the request of the police, the victim and her father came to the police station that evening. She was told by an officer that she was to observe three men, one of whom was possibly her assailant, and to take her time and look them over and identify him if she could.

The three black men were in one room with a police officer. The victim, her father and another policeman were in the next room and the victim observed them through a one-way mirror which permitted her to see them but not to be seen by them, although they knew they were being viewed. The men were of only slightly different heights and there were no significant variations in their clothing except that the Defendant, alone, wore white sneakers. The record discloses no verbal suggestions to the girl by the police or her father. The girl identified the Defendant as soon as he turned facing her.

The police then brought the Defendant into the room where the girl waited and she again identified him. The Defendant said, 'You don't know me.' At this time the Defendant was placed under arrest and advised of his constitutional rights.

At trial the victim of the rape made an in-court identification of the Defendant as her assailant. After the State had finished its direct examination of the girl, the Presiding Justice inquired of the prosecuting attorney if he didn't think 'it would be helpful to develop when she next saw this Defendant after the occasion in the field'. The State thereupon introduced testimony from the girl and from Officer Giobbi of the Portland Police Department as to the out-of-court identification of June 23, 1971.

The Defendant first argues that the evidence was not sufficient to establish Defendant's guilt beyond a reasonable doubt. We find no merit to this contention. There was evidence presented to the jury which, after evaluation by them, fully justified their finding that the girl had been raped and that the Defendant was her assailant. It is not the sufficiency of the evidence as to the identification which disturbs us but the possibly unfair circumstances of its presentation.

The Defendant contends that the in-court identification should have been excluded from the evidence as it was tainted by what Defendant contends was a prejudicial out-of-court identification.

No objection was made by Defendant's counsel to the in-court identification of the Defendant by the victim, nor to the later testimony as to her earlier out-of-court identification.

We said recently:

'It has been a long standing procedure in Maine that if a party has an objection to the introduction of evidence at trial he must state the same to the court specifying at the time his grounds for the objection. Rule 51, M.R.Crim.P., gives it the force of law. Where no objections to the admission of the identification evidence were registered at the trial, the defendant must be deemed to have waived the same. Brine v. State, 1970, Me., 264 A.2d 530, 535. Constitutional rights, like other rights, must be protected at trial within the format of trial procedures and court rules and are subject to recognized principles of waiver. Brine, supra. It is only when the evidence complained of admitted without objection is so highly prejudicial and so taints the proceeding as virtually to deprive the aggrieved party of a fair trial that an appellate court may consider the propriety of its admissibility when raised for the first time on appeal.' State v. Levesque, Me., 281 A.2d 570, 576-577 (1971).

We realize that counsel's failure to object to the in-court identification may have resulted from his being unaware of the out-of-court identification and that both counsel were doubtless unprepared for the Court's interjection of the out-of-court identification into the victim's testimony.

Because identification procedures are relatively new to our bench and bar and because of the unusual manner in which the present evidentiary problem came about and the inherent possibility of highly prejudicial results, we feel we should examine this claim of error.

The Defendant argues that the extrajudicial identification by the victim on June 23, 1970 was inadmissible since he was entitled to have a lawyer present at the lineup and none was provided. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) the United States Supreme Court considered the question of the application of the Sixth Amendment right to counsel to out-of-court identifications in view of the potential for improper influence present in a police-arranged out-of-court identification procedure. In Wade it was held that courtroom identification of an accused who was exhibited to witnesses before trial in a post-indictment lineup without notice to and in the absence of Defendant's counsel must be excluded unless it is determined that the trial identification is based on observations independent of the lineup identification. In Gilbert the Court applied a per se exclusionary rule to evidence of post-indictment lineup identifications conducted in absence of counsel. It was decided in Stovall that although Wade did not have retroactive application, an out-of-court identification procedure which in the light of the totality of circumstances 'was so unnecessarily suggestive and conducive to irreparable mistaken identification' as to amount to a denial of due process of law would be excluded.

After studying the significance of these decisions we concluded in State v. LeBlanc, Me., 290 A.2d 193 (1972) that the presentation of a subject singly to witnesses for identification-expecially if at a police station and if Defendant is unaware that he is being observed-is prima facie a violation of due process and demands affirmative explanation by the State to justify or excuse the use of the procedure or to mitigate the effects of its suggestiveness.

Since argument of this case, the United States Supreme Court has refused to extend further the Wade-Gilbert provisions for presence of counsel at identification, holding that the Sixth Amendment right to counsel did not apply to a police-arranged investigatory confrontation between the victim and suspect held before any formal charges had been brought. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

'The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the Government has committed itself to prosecute, and only then that the adverse positions of Government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. . . .

. . . Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: 'The rationale of those cases was that an accused is entitled to counsel at any 'critical stage of the prosecution,' and that a post-indictment line-up is such a 'critical stage'.' . . . We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.' Kirby v. Illinois, supra.

The Kirby decis...