Conyers v. State

MOYLAN, Judge. This appeal is an occasion for a stroll down Memory Lane. The appellant, Tremaine Conyers, was convicted by a Baltimore City jury, presided over by Judge Kenneth L. Johnson, of attempted murder, armed robbery, and other related offenses. The only contested issue at trial was the identification of the appellant as the criminal agent.

That contest, in turn, has given rise to the two appellate contentions: 1. that Judge Johnson erroneously failed to suppress an extrajudicial photographic identification of the appellant by Ms. Trineka English; and 2. that Judge Johnson erroneously permitted an in-court identification of the appellant by Adam Harding. During the early morning hours of July 20, 1995, Adam Harding, Trineka English, and Otis Taylor were standing on the corner of Lafayette Street and Myrtle Avenue in Baltimore City. They were approached by two individuals whom Harding knew as “Juice” and “Black.” The two men initially asked to speak to Harding. At some point thereafter, “Juice” suddenly and unexpectedly grabbed Harding around the neck, placing him in a headlock.

While “Juice” held Harding, “Black” pointed a gun at Harding’s head and demanded his ¹¹⁶ keys and wallet. After complying with “Black’s” demands, Harding was dragged into a nearby alley by both assailants. He was then shot in the head by “Black.” Harding, although severely injured, survived. At trial, both Harding and Ms. English identified the appellant as the individual whom they knew by the name of “Black.” With respect to Ms. English, the appellant moved, pretrial, to have her extrajudicial photographic identification of him suppressed on the ground that the identification procedure had been impermissibly suggestive.

Had the appellant prevailed, any subsequent in-court identification of him by Ms. English would have been presumed to have been the tainted fruit of the poisoned tree and would, therefore, have been inadmissible, unless the State could show an independent source for the identification. In raising this first contention, the appellant invokes a body of Supreme Court law, dealing with taint hearings for allegedly unconstitutional extrajudicial identifications, that flourished luxuriantly for the decade 1967-1977 but has since then largely withered on the vine. It was a short spurt of furious constitutional litigation that began in the activistic heyday of the Warren Court and essentially ended as the neo-conserva-tive “Burger-Nixon Court” came of age. The decade began with a roar with the much heralded Wade-Gilbert-Stovall trilogy — United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967).

Identification procedures, which had theretofore been treated as a purely factual matter left largely for lay jurors to handle, for the first time took on constitutional dimensions. The catalyst for the constitutionalization of identification procedures was the determination that a police lineup was deemed to be a “critical stage,” thereby entitling an accused who was forced to stand in a lineup to the Sixth Amendment right to the assistance of counsel. ¹¹⁷ The apparent significance of that right to counsel was soon diminished, as a practical matter, as subsequent cases pointed out some crippling doctrinal limits on the right. Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972), made it clear that there is no Sixth Amendment right to counsel at a lineup, notwithstanding the fact that it may be a critical stage, for one who has not yet been indicted or who has not otherwise qualified as an “accused” within the contemplation of the Sixth Amendment. Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968), dealt with the converse limitation that even for an “accused,” there is no right to the assistance of counsel to monitor a photographic identification, for instance, because such a procedure is not a “critical stage.” One must first be an “accused” and then be placed at a “critical stage” to qualify.

Neither situation alone will suffice. In short order, the police adjusted their identification procedures so as to avoid almost entirely any Sixth Amendment problems. They either 1) used some identification modality, such as a photographic array, that was not a critical stage, instead of a live police lineup or 2) made sure that a police lineup was used only for a suspect who was not yet an “accused.” As the Sixth Amendment aspect of the new constitutional phenomenon dramatically waned within the first half decade, the Supreme Court did point out that there remained a residual Fourteenth Amendment reliability issue even for some of those who did not enjoy a Sixth Amendment right to counsel. Stovall v. Denno established that a pretrial identification procedure could violate the Due Process Clause of the Fourteenth Amendment if it were impermissibly (unnecessarily) suggestive.

It is not enough for exclusionary purposes, however, that the procedure be suggestive if the police have no choice in the matter. It is required that the procedure be not only 1) suggestive but also 2) impermissibly so. The due process criterion was more fully fleshed out in Simmons v. United States and reached full flower in Neil v. ¹¹⁸ Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977). The final definition for an excludable pretrial identification became “one that was so [1] impermissibly [2] suggestive [3] as to give rise to a very substantial likelihood of irreparable misidentification.” The third requirement massively curtailed the applicability of the first two and effectively returned identification law to where it had been before the Wade-Gilbert-Stovall trilogy enjoyed its brief moment in the sun.

With Manson v. Brathwaite in 1977, the constitutional phase of identification law had largely run its course. The Supreme Court pointed out that inflexible rules of exclusion, that may frustrate rather than promote justice, have not been viewed recently by this Court with unlimited enthusiasm. 432 U.S. at 113 , 97 S.Ct. at 2252 . Except in extreme cases, the Supreme Court was content to let the trustworthiness of an identification be left to a commonsense weighing process by lay jurors: Surely, we cannot say that under all the circumstances of this case there is “a very substantial likelihood of irreparable misidentification.” Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill.

Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature. 432 U.S. at 116 , 97 S.Ct. at 2254 (citation omitted). What, then, is the legacy of the Wade-Gilbert-Stovall era? Because there has been almost no activity in this area for the last twenty years, younger practitioners are susceptible to reliance on bits and pieces out of an anachronistic, albeit not repudiated, case law and to taking bits and pieces out of context, without the larger perspective of what the big picture ¹¹⁹ looked like and how it shone brilliantly for a season and then largely faded. The present contention is a case in point.

We sense preliminarily, but only in our peripheral vision, that the appellant might have had, if the State had pushed it, a preservation problem. At the suppression hearing, he argued one basis for his proposition that the pretrial photographic identification was impermissibly suggestive and on appeal he argued quite another. It might well be, therefore, that what he now argues has not been preserved and, conversely, that what has been preserved is not now argued. Because we feel that a consideration of the merits permits us to make a point that needs to be made, however, we will not sua sponte pursue the preservation question.

At the conclusion of the pretrial suppression hearing, Judge Johnson ruled that the photographic identification procedure was not impermissibly suggestive. We affirm that