White v. State

• Decision Date: 01 September 1985
• Docket Number: No. 457,457
• Citation: 502 A.2d 1084,66 Md. App. 100
• Parties: Robert Armstrong WHITE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 100

66 Md.App. 100

502 A.2d 1084

Robert Armstrong WHITE v.STATE of Maryland.

No. 457, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Jan. 14, 1986.

Michael R. Braudes, Asst. Public Defender(Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Jillyn K. Schulze, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. for Montgomery County, and Robert L. Dean, Asst. State's Atty. for Montgomery County, on brief), Rockville, for appellee.

Submitted before WEANT, BISHOP and GARRITY, JJ.

BISHOP, Judge.

AppellantRobert Armstrong White was convicted by a jury in the Circuit Court for Montgomery County, of first degree rape, robbery with a deadly weapon, burglary, and carrying a concealed weapon.He was sentenced for these convictions and an unrelated arson conviction to a term of life plus fifty years.

Appellant raises the following issues:

I.Did the trial court err by:

A.Failing to suppress introduction of the pre-trial voice identification because appellant and his counsel were not present at an audio tape replay of the voice line-up;

B.Limiting appellant's cross-examination with reference to police visual line-up guidelines;

C.Not allowing appellant to introduce the remainder of an article written by appellant's voice identification expert, a portion of which the State read in the voir dire; and

D.Limiting the scope of appellant's voice identification expert's testimony?

II.Did the trial court err in permitting a State rebuttal expert witness to testify after the expert was present in the courtroom during prior testimony, despite a general witness exclusion order?

III.Did the trial court err in allowing the prosecutor to read to the jury during closing argument from reported opinions of Maryland appellate courts?

FACTS

On May 15, 1984 the victim was accosted in her bedroom by an intruder who held a sharp object to her neck and ordered her to keep her head down.The intruder proceeded to rob and rape the victim who was not able to see the intruder's face during the approximately twenty minute ordeal, but did hear him speak extensively and was able to notice that he was wearing red sweat pants and white tennis shoes.

Shortly after the victim reported the incident, appellant, wearing red sweat pants and white tennis shoes, was apprehended by police officers in the vicinity of the victim's home.When he was approached by the police appellant gave his brother's name, and, in a subsequent search, the police recovered a razor, a nail clipper, and a nunchaku ¹ from appellant's person.On May 22, 1984 the police held a "live" voice line-up during which the victim narrowed her selection down to appellant and one other individual.Over two months later, on July 30, 1984, after listening to an audio tape of the voice line-up, the victim identified appellant's voice as that of her assailant.Neither appellant nor his attorney was present at the audio tape replay.

Pretrial, appellant unsuccessfully moved to suppress the results of the voice identification.At trial, the State presented an audio-video tape of the voice line-up to the jury.Appellant presented a voice identification expert witness who was allowed to testify as to general standards to measure accuracy in voice identification.Appellant also presented an expert who testified that a sperm sample taken from the victim did not match a sperm sample given by appellant.The State presented expert rebuttal testimony on this issue.

I.Voice Identification

Four issues are raised related to the pretrial voice identification.Appellant first asserts a right to counsel violation; second he alleges error in the trial court's limitation of the scope of defense counsel's cross-examination with reference to police visual line-up guidelines; third he claims the court erred in preventing the reading of a portion of an article read by the prosecutor during the voir dire of his voice identification expert; and fourth he alleges error in the trial court's limitation of his voice identification expert's testimony.

A.Presence of Appellant and Counsel at Voice Line-up

At the first of the two voice line-ups, with both appellant and his attorney present, five police officers and appellant stood behind the victim and each in turn read a series of threats which the assailant had used.Each participant also read a passage taken from the WashingtonPost.The victim chose as possibilities the voices of appellant and one other participant.On July 30, 1984 at the audio tape replay, appellant or counsel not being present, the victim identified appellant's voice as that of her assailant.

Appellant, analogizing to post-indictment line-up cases, asserts that the absence of his attorney at the audio tape replay violated the right to counsel and further argues that the lack of his presence at the "critical stage" of the replay violates fundamental fairness.For these reasons, appellant contends that the trial court should have suppressed the results of the voice identification procedure.

In our review of the denial of a pretrial suppression motion under Rule 4-252, we must consider the record of the suppression hearing only and not the record of the trial itself.Jackson v. State, 52 Md.App. 327, n. 5, 449 A.2d 438, cert. denied, 294 Md. 652(1982).The State asserts that the absence of the defendant and the lack of counsel at the audio replay were not raised in the trial court.The State is partially correct.Neither point was raised at the suppression hearing itself, but lack of counsel was raised in the written suppression motion.Although we will not consider the issue of whether appellant had a right to be present at the playing of the tape, Rule 1085, we will consider the right to counsel issue.

Although appellant was not indicted before the "live" voice line-up he was indicted before the tape replay.The Sixth Amendment right to counsel attached at that time.Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411(1972).The issue is whether the Sixth Amendment requires counsel to be present at the replaying of a taped voice line-up.Appellant cites out of state authority holding that a criminal defendant has a right to counsel during a voice line-up.Appellant also analogizes to post-indictment visual line-up cases which clearly set forth the rule that the Sixth Amendment requires counsel to be present at a visual line-up.SeeGilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178(1967);United States v. Wade, 388 U.S. 218, 236-37, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149(1967).The State analogizes to photo array cases where it is equally clear that there is no right to have counsel present at that pretrial procedure.SeeUnited States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 2579, 37 L.Ed.2d 619(1973).

Two factors compelled the Supreme Court to require counsel's presence at a visual line-up.First, the trial-like confrontation between the victim and the defendant, Ash, 413 U.S. at 314, 93 S.Ct. at 2576;Wade, 388 U.S. at 228-30, 87 S.Ct. at 1932-34, and second, line-up procedures could not be reproduced at trial for defense counsel to challenge them adequately, so counsel needed to be present to observe the actual procedure.Ash, 413 U.S. at 316, 93 S.Ct. at 2577;Wade, 388 U.S. at 236-37, 87 S.Ct. at 1937.The absence of these two problems in the photo array context caused the Supreme Court not to require defense counsel's presence in a post-indictment photo identification procedure.Ash, 413 U.S. at 317-21, 93 S.Ct. at 2577-79.

There are no post-Gilbert/Wade Marylandcases which deal with the right to counsel at a voice identification procedure.²A majority of other states and the federal courts have held that a criminal defendant has no right to have counsel present at a voice line-up procedure.³The issue presented to us here is not the right to counsel at the "live" voice line-up, but rather at the taped replay.The "live" voice line-up situation is arguably analogous to a "live" visual line-up.The taped replay of the voice line-up, however, is more analogous to a photo-array identification.SeeUnited States v. Otero-Hernandez, 418 F.Supp. 572 574-75(M.D.Fl.1976).As in photo-array cases, the defendant is not present, so confrontation is not a problem, and the procedure is capable of exact repetition, so that defense counsel can later review it.Otero-Hernandez, 418 F.Supp. at 574-75.SeeAsh, 413 U.S. at 317-18, 93 S.Ct. at 2577.As stated in United States v. Otero-Hernandez,

The court observes that a tape recording, [of a voice line-up], like a photograph, has a degree of permanence which would permit counsel to effectively reconstruct the out-of-court session during a trial confrontation.Any indication that the out-of-court procedure was suggestive of defendant or was otherwise conducted in an improper manner can be tested and resolved by adversary proceedings at trial.

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Accordingly, this court concludes that a voice spread is functionally equivalent to a photo spread rather than a line-up.Therefore, there is no constitutionally mandated requirement that defendant's counsel be present or invited at the time such an out-of-court identification is made.

418 F.Supp. at 575(citations omitted).

We adopt the reasoning of United States v. Otero-Hernandez and hold that a criminal defendant has no right to have counsel present at a replay of a voice line-up.

B.Exclusion of Evidence of Visual Line-Up Guidelines

Montgomery County DetectiveWayne Grant testified at trial about the procedure utilized in the pretrial voice identification.During cross-examination appellant's trial counsel asked:

If you have been setting up a photographic line-up, do your regulations or training materials, in-service training materials indicate the number of individuals that should be in one of those line-ups?

The trial court...