Wethington v. State, 242

• Decision Date: 23 May 1969
• Docket Number: No. 242,242
• Citation: 253 A.2d 523,7 Md.App. 79
• Parties: Bruce Allen WETHINGTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 79

7 Md.App. 79

253 A.2d 523

Bruce Allen WETHINGTON v. STATE of Maryland.

No. 242.

Court of Special Appeals of Maryland.

May 23, 1969.

Charles T. Finley, Mt. Rainier, for appellant.

John J. Garrity, Asst. Atty. Gen., Baltimore, with whom were on brief: Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty. for Prince George's County, Benjamin R. Wolman, Asst. State's Atty. for Prince George's County, for appellee.

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

PER CURIAM.

This is an appeal from convictions by a jury in the Circuit Court for Prince George's County of indecent exposure and assault with intent to maim. The pertinent facts are set forth in Chief Judge Murphy's opinion in Wethington v. State, 3 Md.App. 237, 238 A.2d 581, where this Court reversed Wethington's prior convictions on the same charges and granted a new trial. The present appeal is from convictions entered upon retrial.

It is first contended that the extra-judicial identification of the appellant was so unfair and unreliable that it amounted to a denial of due process and, accordingly, the appellant's pretrial motion to suppress should have been granted. Appellant does not rely upon 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, since the identification was prior to June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Instead he relies upon the basic proposition that evidence of an extra-judicial lineup or confrontation is inadmissible if conducted under conditions of unfairness or unreliability. Stovall v. Denno, supra; see Palmer v. State, 5 Md.App. 691, 249 A.2d 482 (filed January 22, 1969); Reeves v. State, 3 Md.App. 195, 238 A.2d 307.

At the hearing on the motion to suppress, Lieutenant Bryan of the Prince George's County Police testified that on June 13, 1966, three days after the commission of the criminal acts, the three victims of the indecent exposure and assaults were requested to be present at the Oxon Hill Police Substation, sit in the lobby of the station, and see if they could identify any individual entering or leaving the premises as the perpetrator of the offenses. In making the request, Lieutenant Bryan was aware that the tag number of the vehicle involved in the assault incident which had been furnished the police by the victims was the same as the tag number on a vehicle recently reported stolen and that the registered owner of the vehicle had been told to come to the stations at 5:00 p. m. that day to reclaim it.

The victims, according to Bryan, arrived at the substation and, after remaining in the lobby for some time, observed the appellant on the sidewalk just outside the entrance as he was about to enter the station. Bryan also stated that there was a substantial volume of pedestrian traffic in the substation at this time of evening; that appellant was unaccompanied by any police officers; that none of the police officers had any personal knowledge of appellant's physical appearance prior to the identification by the witnesses; and that the substation was in a semi-commercial area.

Subsequent to the identification, Bryan stated that he took the appellant to an upstairs room within the station after giving him the requisite warnings and had each witness come up singly, confront the appellant and accuse him.

The appellant testified that he came to the station to sign a release for his car, which he had earlier reported stolen. He entered the station but did not see the victims. When advised by the desk sergeant that he would have to wait since Lieutenant Bryan wanted to talk with him, he returned to the parking lot to tell his mother and stepfather that he would be detained. As he returned to the building, he heard the desk sergeant say to the witness that 'I was the owner of the Dodge and * * *.' He further stated that he was then taken upstairs by Lieutenant Bryan and confronted by each witness, 'after they sat outside the door for almost an hour.' He also asserted that the witnesses could hear and observe each other as they made their identification before Lieutenant Bryan.

The appellant points out that the Supreme Court in Stovall v. Denno, supra, stated that 'The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.' He asserts that the identification procedure here was clearly unfair and unreliable. If the identification had been made at the time the appellant was confronted by the witnesses upstairs in the substation in the presence of Lieutenant Bryan there would be real substance to his contention. But the evidence clearly shows, as indicated in the excerpt...