Webster v. State

• Decision Date: 25 May 1984
• Docket Number: Nos. 116,s. 116
• Parties: Bernard WEBSTER v. STATE of Maryland. Victor Salvadore JOHNSON, a/k/a Salvadore Victor Johnson v. STATE of Maryland. Sept. Term 1983 and 128 Sept. Term 1983.
• Court: Maryland Court of Appeals

Page 581

299 Md. 581

474 A.2d 1305

Bernard WEBSTER v. STATE of Maryland.

Victor Salvadore JOHNSON, a/k/a Salvadore Victor Johnson v. STATE of Maryland.

Nos. 116 Sept. Term 1983 and 128 Sept. Term 1983.

Court of Appeals of Maryland.

May 25, 1984.

Gerald W. Vahle, Towson (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Deborah K. Chasanow, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen. and Bernard A. Penner, Asst. Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty., and Jonathan Scott Smith, Asst. State's Atty., for Baltimore Co., Towson, on the brief), for appellee.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY, and COUCH, JJ., and CHARLES E. ORTH, Jr., Retired, Specially Assigned Judge.

Charles E. ORTH, Judge, Retired, specially assigned.

These appeals are concerned with lineups. A lineup, also known as an "identification parade" or "showup," is arranged by the police investigating the commission of a crime. It is a confrontation between a suspect and prospective identifying witnesses, and its purpose is to obtain evidence establishing that the suspect is the criminal agent. It is usually conducted at a police station under carefully controlled conditions. The suspect is exhibited amidst other persons similar to him in appearance, and the assemblage is viewed by the various witnesses in turn. The position of the suspect in the line may be changed between viewings. Frequently, lights or one-way windows and microphones are so utilized that the witnesses can see and hear the persons exhibited, but the persons exhibited cannot see or hear the witnesses.

An identification made at a lineup is referred to as an extra-judicial or out-of-court identification. At the trial, the prosecution may seek to have evidence of an identification made at a lineup admitted, and, under the impartial eye of the presiding judge, may also call upon a witness to identify the suspect (now an accused) in the courtroom. This latter identification is referred to as a judicial or in-court identification. The admissibility of evidence of such judicial and extra-judicial identifications is the crux of these appeals.

I

THE LAW RELATING TO LINEUPS

(a)

The Maryland Law Prior to Wade--Gilbert--Stovall

At the time the Wade--Gilbert--Stovall trilogy of opinions was 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 was admissible. It was also the general rule that the testimony of a witness that he had made 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 (1958). Testimony by a police officer or some third party as to an extra-judicial identification was admissible when made under circumstances precluding the suspicion of unfairness and unreliability, provided that the out-of-court identifier was present at trial and subject to cross-examination. Walters v. State, 242 Md. 235, 239, 218 A.2d 678 (1966); Johnson v. State, 237 Md. 283, 289-291, 206 A.2d 138 (1965). Such testimony was admissible whether or not the out-of-court declarant made a judicial identification, and thus was admissible not only as corroboration 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.App. 59 63-64, 250 A.2d 285, cert. denied, Smith v. State, 254 Md. 720, cert. denied, Samuels v. State, 255 Md. 743 (1969), cert. denied, Samuels v. Maryland, 397 U.S. 1057, 90 S.Ct. 1402, 25 L.Ed.2d 674 (1970).

(b)

Constitutional Rights As To A Lineup

(1)

The Fifth Amendment Privilege Against Self-Incrimination

The Fifth Amendment privilege against self-incrimination ²

"offers no protection against compulsion to submit to fingerprinting, photographing, 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." Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966).

"None of these activities becomes testimonial within the scope of the privilege because required of the accused in a pre-trial lineup." United States v. Wade, 388 U.S. 218, 223, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967).

(2)

The Sixth Amendment Right To Assistance Of Counsel

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) held "that a post-indictment pretrial 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 [and Fourteenth] Amendment right to counsel ..." ³ and, that absent a waiver of the right, the confrontation is illegal. Gilbert at 272, 87 S.Ct. at 1956. Wade and Gilbert then fashioned exclusionary rules regarding identifying evidence if its source was a lineup tainted by the absence of counsel, as follows:

1) The in-court identifications of the accused at such confrontations 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, 388 U.S. at 240 and 242, 87 S.Ct. at 1939.

2) Evidence that witnesses identified the accused at such a confrontation is per se to be excluded. Gilbert, 388 U.S. at 272-274, 87 S.Ct. at 1956-1957.

3) The admission of evidence to be excluded under 1) and 2) is prejudicial error unless, in any event, its introduction was harmless error. Wade, 388 U.S. at 242, 87 S.Ct. at 1940; Gilbert, 388 U.S. at 274, 87 S.Ct. at 1957. ⁴

See Smith and Samuels, 6 Md.App. at 65, 250 A.2d 285.

The rule set out in (1) above, with respect to the admission of evidence of in-court identifications, applies the test quoted in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Wade, 388 U.S. at 241, 87 S.Ct. at 1939. See Smith and Samuels, 6 Md.App. at 65, 250 A.2d 285. The Supreme Court gave examples of the various factors which must be considered in the application of the Wong Sun test:

"[T]he prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup." Wade, 388 U.S. at 241, 87 S.Ct. at 1940.

The Court of Special Appeals discussed Wade and Gilbert at length in Tyler v. State, 5 Md.App. 265, 246 A.2d 634 (1968), cert. denied, 252 Md. 733 (1969), cert. denied, 405 U.S. 1039, 92 S.Ct. 1317, 31 L.Ed.2d 579 (1972); in Palmer v. State, 5 Md.App. 691, 249 A.2d 482 (1969); and in Smith and Samuels, 6 Md.App. 59, 250 A.2d 285.

It recognized that the precise holdings of Wade and Gilbert went only to post-indictment lineups, Tyler, 246 A.2d at 638, but it believed that the rationale of the holdings, for reasons set out in Palmer, 5 Md.App. at 695-696, 249 A.2d 482, mandated that the exclusionary rules applied also to pre-indictment lineups and to other pre-trial confrontations, before or after indictment, which violated constitutional standards and which were not subject to fair and meaningful objective review later at trial. Smith and Samuels, 6 Md.App. at 64, 250 A.2d 285. The intermediate appellate court saw in Wade and Gilbert indication, implicit at the least, that their holdings were not to be limited to post-indictment lineups. It so held. Palmer, 5 Md.App. at 696, 249 A.2d 482. Thereafter, in this jurisdiction for a period of some four years, the Wade-Gilbert holdings were consistently applied without regard to whether the confrontation was post-indictment or pre-indictment. Jackson v. State, 17 Md.App. 167, 169, 300 A.2d 430, cert. denied, 268 Md. 749 (1973). Then on 7 June 1972 the Supreme Court decided Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Kirby made clear that Wade and Gilbert did not mean what the Court of Special Appeals thought those cases meant. ⁵

Kirby was decided on these facts. Two police officers stopped Thomas Kirby and a companion, Ralph Bean, on a Chicago street. ⁶ Kirby and Bean had certain articles in their possession bearing the name of Willie Shard. When no satisfactory explanation for the possession of these articles was forthcoming, the officers arrested Kirby and Bean and took them to the police station. The officers then learned that Shard had reported that he had been robbed. A police car was dispatched to pick up Shard, and he was brought to the police station. "Immediately upon entering the room in the police station where [Kirby ] and Bean were seated at a table, Shard positively identified them as the men who had robbed him two days earlier." Kirby, 406 U.S. at 684-685, 92 S.Ct. at 1879-1880. No lawyer was present and neither Kirby nor Bean had been advised of any right to the presence of counsel. More than six weeks later Kirby and Bean were indicted for the robbery of Shard. A pretrial motion to suppress Shard's identification testimony was denied, and at the trial Shard described his identifications at the police station and made an in-court identification of Kirby and Bean as the men who had robbed...