Branch v. State

502 A.2d 496, 305 Md. 177, 1986 Md. LEXIS 179

• Court: Court of Appeals of Maryland
• Decided: January 9, 1986
• Docket: 53, September Term, 1985
• Status: Published

Opinions

SMITH, Judge.

Because of a substantial variation between the description initially given of a robber and that of the actual description of the defendant it is here contended that there was insufficient evidence to convict. We shall hold to the contrary. Hence, we shall affirm the judgment of the Court of Special Appeals.

Beatrice Mudge was robbed by two black males at approximately 7:15 a.m. on April 14,1983, while enroute to her employment at The Johns Hopkins Hospital. She immediately reported the incident to security at the hospital who called the Baltimore City Police. At approximately 8:30 a.m. she advised the police that the individual who held the gun on her was a black male, approximately 5 feet 7 inches tall, 15 to' 16 years of age, weighing 110-125 pounds, wearing a dark jacket, and carrying a silver handgun.

Miss Mudge was later interviewed by yet another police officer, unacquainted with the description given by her earlier, who asked her to look through two books containing a total of approximately 600 photographs. She was unable to identify any of those photographs as being' of her assailant. Thereupon the police officer showed her three additional photographs. At about 10:45 a.m. she identified a picture of Larry Andre Branch as the individual who held the gun on her.¹ This photograph had on it no indication of height and weight.

Branch at the time in question was 19 years of age, 6 feet 3 inches tall, and weighed 185 pounds. Miss Mudge is approximately 5 feet 6 inches in height. Branch is said to have two missing front teeth. Miss Mudge did not note such a feature. The photograph which she selected does not show missing front teeth.

At trial Miss Mudge testified that there was no question in her mind when she saw Branch’s photograph that he was the individual that had robbed her and that this was the same individual she saw as the defendant in the trial court. She said her assailant was taller than she, that they “were on a slant, too.” In court she was asked on cross-examination if she remembered saying that her assailant weighed 110 to 125 pounds and was 15 to 16 years of age. The record then is:

“A Well, wait—

“Q Go on. Finish. Excuse me.

“A When somebody asked me how much did he weigh I said oh, God, are you asking me that? I don’t know how much people — I mean, you think weight is — I’m not sure how much people weigh.

“Q I understand.

“A I mean, weight is — I would think you’d weigh something and it would probably be completely different.

“Q Just don’t say. But, you do recall giving a weight description, is that right?

“A Yeah.”

On the issue of teeth Miss Mudge said she “didn’t see anything specifically about his teeth.”

At trial she was pressed on the issue of height and whether she had given a wrong description. The record then is:

“THE WITNESS: Well, all that — you know, all I can remember back then is that he was tall. I looked at his face and he was taller than I am. Now, was he five foot seven or five foot nine? I wish I had my tape measure with me because I—

“MR. PURPURA [Counsel for Branch]: I wish you did, too.

“THE WITNESS: How much taller was he and how much — you know, if I had my heels I could have been, you know, just a little taller.”

On cross-examination of Miss Mudge the issue of the height of Branch was before the jury in the following manner:

“Q . And, so you basically know the difference between someone who is five foot seven and someone who is six foot three or four, is that correct?

“A Yes, I do.

“MR. PURPURA: At this time I would like to have the publication before the Jury of my client standing next to Miss Mudge.

“THE COURT: Well, I don’t know how close you can get.

“MR: PURPURA: Stand up.

“THE COURT: Do you want to stand up to just where you are by the witness?

“MR. PURPURA: So that the Jury can see also— “MR. TICKNOR: Hold it.

“MR. PURPURA: Okay. Fine. Could you just turn towards her, please?

“THE WITNESS: That’s him.

“BY MR. PURPURA:

“Q Now, Miss Mudge, when you turned and you said that’s the man in the Courtroom you pointed right to Mr. Branch, is that right?

“A Uh-huh. Yes.

“Q And, you were sure you didn’t point to anybody else, right?

“A No.

“Q As a matter of fact, you didn’t look around the Courtroom to see if anyone else could possibly be the person, is that right?

“A Well, I looked at him when I came in. I sat down here. I mean, he was here all day. I’ve seen him. I mean, looking at him — ”

The above demonstration was immediately followed up on redirect examination:

“Q Having just stood very close to the Defendant in this case is his height consistent with the person that robbed you?

“A You’re asking me—

“Q Is his height consistent with the person that robbed you?

“A Yes. Yeah. Yes.

“Q Now, it doesn’t surprise you that he’s tall or anything like that?

“A No.”

Branch claimed to have an alibi which was corroborated by his girlfriend, his aunt, and a ticket from a pawn shop for the day in question for a television set which he claimed to have pawned for his aunt at her request.

Branch appealed his conviction to the Court of Special Appeals. The intermediate appellate court affirmed in an unreported opinion (No. 351, September Term, 1984, decided Dec. 4, 1984). We granted a writ of certiorari to address the issue framed in the petition:

“Whether the Court of Special Appeals erred in affirming a blatant case of misidentification in that the victim had described the robber as being 5'7", 110-125 pounds, 15-16 years old, with no unusual facial features — when the evidence revealed that Petitioner, convicted of this crime, was 6'3" tall, 185 pounds, 21 years old, with missing front teeth.” ²

We point out that Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and its holding that an accused “is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt,” 443 U.S. at 324, 99 S.Ct. at 2791-92, in no way changed the standard in effect in Maryland. In Williams and McClelland v. State, 5 Md.App. 450, 247 A.2d 731 (1968), cert. denied, 252 Md. 731, 734 (1969), Judge Orth carefully reviewed for the Court of Special Appeals a number of the prior cases of this Court such as Gibson v. State, 238 Md. 414, 209 A.2d 242 (1965); Shelton v. State, 198 Md. 405, 84 A.2d 76 (1951); Edwards v. State, 198 Md. 132, 81 A.2d 631, 83 A.2d 578 (1951); and Lambert v. State, 196 Md. 57, 75 A.2d 327 (1950). All of those cases arose subsequent to the constitutional amendment now embodied in Maryland Declaration of Rights, Art. 23 which provides that a trial court “may pass upon the sufficiency of the evidence to sustain a conviction,” and, hence, that this was open to appellate review. Judge Orth then said for the Court of Special Appeals:

“Once the question of the sufficiency of the evidence is properly before us, we believe that the criteria used to determine the question is the same, be the verdict rendered by the court or a jury. Whether the test applicable to jury cases is stated in the affirmative — the judgment will be affirmed if there is any relevant evidence before the jury to sustain a conviction — or in the negative — to overturn a judgment there must be no legally sufficient evidence on which the defendant could be found guilty beyond a reasonable doubt — it is inherent that to be sufficient in law to justify the conviction within the intent of [Maryland Code (1957, 1967 Repl.Vol., 1967 Cum. Supp.) ] Art. 27, § 593 the admissible evidence adduced must show directly or support a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” 5 Md.App. at 458-59, 247 A.2d at 737 (emphasis added).

Applying this standard under Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, Chief Judge Murphy said for the Court in State v. Rusk, 289 Md. 230, 240, 424 A.2d 720, 725 (1981), “[T]he applicable standard is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ 443 U.S. at 319 [99 S.Ct. at 2789] (emphasis in original).” Accord Tichnell v. State, 287 Md. 695, 717, 415 A.2d 830, 842 (1980).³

This Court said in Walters v. State, 242 Md. 235, 218 A.2d 678 (1966):

“Identification by the victim is ample evidence to sustain a conviction. Davis v. Warden, 235 Md. 637, 201 A.2d 672 (1964); Rakes v. State, 227 Md. 172, 175 A.2d 579 (1961) and cases cited therein. The testimony of a victim, unlike that of an accomplice, needs no corroboration. Gregoire v. State, 211 Md. 514, 128 A.2d 243 (1957); Basoff v. State, 208 Md. 643, 119 A.2d 917 (1956). The testimony of Mrs. Mollinary was legally sufficient to convict.” 242 Md. at 237-38, 218 A.2d at 680.

For a more recent application of the rule see Mobley and King v. State, 270 Md. 76, 89, 310 A.2d 803, 811 (1973), cert. denied, 416 U.S. 975, 94 S.Ct. 2003, 40 L.Ed.2d 564 (1974); Kirby v. State, 48 Md.App. 205, 211, 426 A.2d 423, 427, cert. denied, 291 Md. 777 (1981).

No useful purpose would be served by reviewing the numerous cases dealing with identification cited by both sides. In the final analysis the responsibility is ours to determine whether there was sufficient evidence to permit a rational trier of fact to find beyond a reasonable doubt there was sufficient evidence to establish the essential elements of the crime and that Branch was the criminal agent. The issue of credibility, of course, is one for the trier of fact.

Admittedly we have here a substantial discrepancy between the description given by the victim of the crime almost immediately after the incident and the actual description of the accused. We view this as going to the weight and not to the sufficiency of the evidence. It was while the facts were still fresh in the victim’s mind, approximately three and a half hours after the incident, that she selected a picture of the accused as being of her assailant. In the courtroom she positively identified the accused as being the perpetrator of the robbery. We hold that this was enough for a rational trier of fact to conclude beyond a reasonable doubt that Branch was the culprit.

JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.

1 . No contention is made here that this photo identification was in any way suggestive.

2 . At oral argument counsel for Branch conceded that the age of Branch at the time of the incident was 19.

3 . We dropped a footnote in Bedford v. State, 293 Md. 172, 176, 443 A.2d 78, 80 (1982), in which we quoted from L. Hochheimer, Criminal Law § 157 (2d ed.1904), a work much used by Maryland attorneys, and said we regarded it as “being basically in accord with that enunciated by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)."