MURPHY, C.J., delivered the opinion of the Court.
On the night of June 27, 1967, Meade's Liquor Store in Prince George's County was held up by two men, one of whom held a gun on Francis Krahling, the store manager, directed him
The day following the robbery, Krahling was shown eight to ten photographs of Negro males from which he picked out the appellant as the man who held the gun on him during the robbery. Appellant was arrested on June 30, 1967 in the District of Columbia and after his request for counsel was denied by that jurisdiction, he was promptly transported to Prince George's County where he made two more requests for immediate appointment of counsel, both of which were also denied. On July 3, 1967, a preliminary hearing was held in the People's Court for Prince George's County at which appellant was not represented by counsel. Francis Krahling attended the preliminary hearing and identified appellant as one of the men who had robbed him. Appellant was subsequently indicted on August 7, 1967 and charged with robbery with a deadly weapon and related offenses, all in connection with the liquor store robbery on June 27. Counsel on behalf of appellant thereafter entered his appearance and the case came on for trial on September 14, 1967 before a jury in the Circuit Court for Prince George's County.
At the trial, the State on direct examination established the corpus delicti through the testimony of Francis Krahling, who also made an in-court identification of the appellant as the person who had robbed him. No objection was interposed at that time by the appellant to the in-court identification. On cross-examination, however, it was brought out that Krahling had made an extrajudicial identification of appellant by photograph and had also identified him at the preliminary hearing. It was Krahling's testimony that he was in the courtroom for the preliminary hearing when the appellant, dressed in blue denim, was brought through a side door with another man, after which he stood with other men whom he believed to be "officers of the court." Krahling testified that he knew at that time that he was to be a witness in a case involving James Tyler (the appellant);
Appellant moved to strike the identification evidence resulting from the confrontation at the preliminary hearing on the ground (a) that his right to counsel at the preliminary hearing was denied in violation of the sixth amendment to the federal constitution, and (b) that the in-court identification was inadmissible as it was tainted by the illegal extrajudicial identification made at the preliminary hearing. The motion was denied and appellant was subsequently convicted by the jury of robbery with a deadly weapon and sentenced by the court to ten years imprisonment.
Appellant contends on this appeal, as he did in substance below; that the State's failure to provide counsel for him as an indigent accused at the preliminary hearing was a denial of his constitutional right to counsel in that he was denied the right to adequately cross-examine the State's witness and consequently was denied the right to discovery of the State's case. More specifically, he maintains that where an accused has counsel to represent him at the preliminary hearing, he is thereby afforded an opportunity, through cross-examination of the State's witnesses, to learn more of the State's case and is thus better enabled to prepare a more intelligent defense — one which includes the opportunity to use testimony of the State's witnesses at the preliminary hearing for impeachment purposes at the trial. Appellant urges that as these rights and advantages accrue to the accused who is financially able to employ counsel
That an indigent accused in a serious State criminal prosecution has an absolute constitutional right to have counsel appointed for his defense at his trial is settled beyond question. Gideon v. Wainwright, 372 U.S. 335; Manning v. State, 237 Md. 349; Wayne v. State, 4 Md.App. 424. The right is one which extends only to "critical" stages of the proceedings against the accused. McClelland v. State, 4 Md.App. 18; Blake v. State, 2 Md.App. 492. It has been repeatedly held that the preliminary hearing under Maryland law is not of itself such a critical stage in the judicial process. DeToro v. Pepersack, 332 F.2d 341, cert. den. 379 U.S. 909; Pressley v. Warden, 242 Md. 405; Hannah v. State, 3 Md.App. 325; State v. Hardy, 2 Md.App. 150; Crumb v. State, 1 Md.App. 98. In Timbers v. State, 2 Md.App. 672, we specifically held that the preliminary hearing was not a critical stage in the proceeding merely because, in the absence of counsel, the accused's ability to discover the State's case and to cross-examine the State's witnesses would be more limited than if he had counsel representing him at the hearing. We pointed out in Timbers that it is not the purpose of the preliminary hearing to provide a forum for discovery and that while it does afford, as an incidental by-product, some opportunity for discovery, the Constitution does not require, for that reason, that counsel be appointed at such a non-critical stage of the proceeding. See also Mason v. State, 2 Md.App. 768. Adhering to these views, we conclude that appellant was not for the reasons asserted by him denied his constitutional right to counsel at a critical stage of the proceedings against him.
Appellant next contends that even though the preliminary hearing may not always constitute a critical stage of the proceedings, when events transpire there that are likely to prejudice the ensuing trial, then the preliminary hearing does become "critical" and the accused who is subjected to such a proceeding in the absence of counsel is denied his constitutional right
We hold that nothing in Wade or Gilbert guarantees the right to counsel at a preliminary hearing whether or not an identification of the accused is made. In Tender v. State, 2 Md.App. 692, we said that the precise holdings in Wade and Gilbert were that a post indictment lineup held after June 12, 1967, at which the accused was exhibited to identifying witnesses, was a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of counsel denied the accused his sixth amendment right to counsel and called in question the admissibility at trial of the in-court identification of the accused by witnesses who attended the illegal lineup; and that for such testimony to be admissible, it must be established by clear and convincing evidence that the in-court identification was based upon observations of the accused other than the lineup identification.
We think it evident that Wade does not hold that all pretrial confrontations between the accused and the victim or other identifying witnesses are thereby deemed to be critical stages of the criminal prosecution. In our opinion, Wade indicates that only those pretrial confrontations that are not subject to fair and meaningful objective review later at the trial fall within its strictures, so that where the circumstances of the confrontation can be fully developed at the trial by cross-examination of the State's witnesses, or by presentation of witnesses on behalf of the defendant, the right to counsel does not attach. Specifically, we hold that the rationale of Wade and Gilbert is not applicable to confrontations at a public pretrial judicial hearing presided over, as here, by a judicial officer since what occurred there is not only the antithesis of the "privacy results in secrecy" element highlighted in Wade, but the accused has the opportunity for "a meaningful confrontation" of the State's case at the trial through the ordinary process of cross-examination of the State's witnesses and the presentation of the evidence of his own witnesses, including, if necessary, the judicial officer who presided
Finally, appellant urges that the trial court erred in any event in admitting the in-court (trial) identification of the appellant by Krahling since it was the product of the tainted pretrial identification at the preliminary hearing. He maintains that the fairness of this confrontation must be analyzed in light of the totality of the circumstances and that, so viewed, it was manifestly prejudicially inspired. He particularly points out that as Krahling initially identified him from police photographs, Krahling knew that he was a criminal and that the conditions under which he was seen by Krahling at the preliminary hearing were obviously prejudicially suggestive and unfair. Under such conditions, appellant contends that his exhibition at the preliminary hearing was illegal and that the subsequent in-court (trial) identification "was come at by exploitation of that illegality" within the meaning of Wong Sun v. United States, 371 U.S. 471; and that, as such, the trial identification must be wholly excluded from evidence without affording the State an opportunity to show that the in-court identification had an independent source.
It has long been a recognized ground of attack upon a criminal conviction that the accused was subjected to a pretrial confrontation with the victim under conditions so unnecessarily suggestive and conducive to irreparable mistaken identification as to amount to a denial of due process of law. Stovall v. Denno, 388 U.S. 293; United States v. Gilmore, 398 F.2d 679 (7th Cir.). 3 Cr.L. 2399; Palmer v. Peyton, 359 F.2d 199 (4th Cir.). While the identification procedure at the preliminary hearing in this case leaves much to be desired, it is clear from the evidence that Krahling had previously made a photographic identification of the appellant as one of the robbers. The police practice of showing pictures of suspects to victims of crime, so