Greene v. State

Daniel Joseph Greene v. State of Maryland, No. 7, September Term, 2019 CRIMINAL LAW — CONSTITUTIONAL IDENTIFICATION LAW— NON-EYE- WITNESS IDENTIFICATION — CONFIRMATORY IDENTIFICATION The Court of Appeals affirmed the judgment of the Court of Special Appeals. That court held that the identification by a non-eyewitness who knew the suspect is not governed by constitutional identification law, but rather was a “confirmatory identification.” Conse- quently, the circuit court erred as a matter of law in applying the due process analysis of Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98 (1977), which governs eyewitness identifications. Circuit Court for Baltimore City Case No. 117362037 Argued: September 6, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 7 September Term, 2019 DANIEL JOSEPH GREENE v. STATE OF MARYLAND Barbera, C.J., McDonald Watts Hotten Getty Booth, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

Opinion by Barbera, C.J. Filed: June 9, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-10-23 15:39-04:00 Suzanne C. Johnson, Clerk It is not unusual during a criminal investigation for the police, having focused on a suspect, to ask an eyewitness to the crime to attempt to identify the suspect. Such an iden- tification procedure may take the form of a lineup, a photographic array, a one-person show-up, or display of a single photograph. The United States Supreme Court, recognizing that such procedures have the potential to be impermissibly suggestive and ultimately un- reliable, has developed a constitutionally-based body of law governing police-initiated se- lection procedures to protect suspects from unfair identification procedures.

See, e.g., Stovall v. Denno, 388 U.S. 293 (1967), Neil v. Biggers, 409 U.S. 188 (1972), Manson v. Brathwaite, 432 U.S. 98 (1977). Not all investigatory procedures relating to identifying a suspect, however, seek an eyewitness’s selection of a person as involved in the crime under investigation. Some police procedures seek only to obtain the suspect’s identity from someone who, though not an eyewitness to the crime, is familiar with the suspect. We are presented with such a situation in this case.

The identification at issue here arises from a murder investigation. Shortly after the murder, the investigating detectives focused on Daniel Joseph Greene, Petitioner, as the suspected killer. About the same time, the detectives discovered that a surveillance camera mounted on a building adjacent to the apartment where the murder occurred had captured a person attempting to enter the apartment around the time of the murder. The detectives were aware that the murder victim’s current girlfriend, Jennifer McKay, knew Petitioner for years and, until recently, had been in an intimate relationship with him.

The detectives interviewed Ms. McKay at the police station and asked her to review the camera footage. She did so and determined that the person depicted on the videotape footage “looks like” Petitioner. Petitioner was charged with having committed the murder. He filed in the Circuit Court for Baltimore City a motion to suppress the identification of him by Ms. McKay.

Petitioner argued to the circuit court that the identification was obtained during “an imper- missibly suggestive process,” rendering the identification inadmissible at trial. The circuit court agreed and granted the suppression motion. The State noted a direct appeal of that decision.1 The Court of Special Appeals held that the police-initiated procedure resulting in the identification of Petitioner was not governed by constitutional criminal procedure law concerning out-of-court identifications made by an eyewitness, as the suppression court had mistakenly believed was the case. Ms. McKay’s identification of Petitioner was of an altogether different sort; it was a “confirmatory identification,” not subject to constitutional scrutiny.

We agree and affirm the judgment of the Court of Special Appeals. 1 The State is entitled, in this circumstance, to file a direct appeal of the suppression court’s ruling pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12- 302(c)(4)(iii) and (iv) (Rep. Vol. 2013, Supp. 2019). 2 I. Facts and Procedural History Sometime during the early morning hours of November 29, 2017, Jon Hickey2 was murdered in his apartment in the Fells Point neighborhood of Baltimore City. At the time of his death, Mr. Hickey had been involved for roughly a month and a half in an intimate relationship with Ms. McKay. Before then, Ms. McKay had been in a five-year intimate relationship with Petitioner, whom she had known since elementary school.

Ms. McKay last saw Petitioner in early November 2017, several weeks before Mr. Hickey was killed. During their investigation of the murder, the detectives recovered surveillance vid- eotape footage from at least one camera mounted on the rear of a house next to Mr. Hickey’s apartment.3 The videotape showed a person apparently attempting to enter the apartment. The detectives, believing the person in the videotape may be the murderer, asked Ms. McKay to come to the station to determine whether she could identify the person on the surveillance video. We describe that interview in more detail shortly.

It is enough for now to note that on multiple occasions throughout the interview Ms. McKay told the police that the person in the video “looks like” Petitioner. 2 The record contains Mr. Hickey’s first name spelled as both “John” and “Jon.” We follow the Court of Special Appeals and use “Jon.” 3 It is not clear from the record whether the police recovered videotape footage from one or more cameras mounted on the neighboring home. 3 The suppression motion and hearing On December 28, 2017, Petitioner was indicted in the Circuit Court for Baltimore City on a charge of first-degree murder of Mr. Hickey. Petitioner, through counsel, filed a pre-trial omnibus motion, which included a motion to suppress Ms. McKay’s out-of-court identification and expected in-court identification of Petitioner as the person depicted on the video. Petitioner argued that Ms. McKay’s out-of-court identification of him was the product of impermissibly suggestive police procedures. Approximately twenty-five minutes of the police station interview with Ms. McKay was played at the suppression hearing.

The interview began with Ms. McKay informing the police that she had communicated with Petitioner via phone earlier the day of the inter- view (December 4, 2017) but last saw him in person a few weeks before the murder. In response to the detectives’ questions, Ms. McKay described Petitioner’s appearance and the cars he sometimes drove. The detectives then showed Ms. McKay brief videotape footage captured by the surveillance camera. The quality of the video was not ideal; the images were dark and grainy, and the night vision made it difficult to interpret colors.

The detectives showed Ms. McKay the video several times, slowed down the speed of the video, and produced some still images of the footage. Ms. McKay stated, early on, that the person in the video “looks like [Petitioner]” based upon the depicted person’s “build” and “beard.” Ms. McKay did not speak with certainty, however. She vacillated throughout the interview, stating that the person in the surveillance video “kind of looks like [Petitioner],” “looks like him,” “looks more like 4 him,” and “looks more like him than doesn’t look like him.” The detectives pressed Ms. McKay to be more certain of her identification. During the interview, the following ex- change occurred: DET.

O’CONNOR: We know this is hard for you, you’re kind of like in the middle of everything, so. It’s unfortunate. And I’m sure it’s probably pretty hard to look at it, who you believe to be somebody. But we are – so I’m going to be blunt with you.

We aren’t in the I think business. MS. MCKAY: Right. DET.

O’CONNOR: It’s what we can prove business. MS. MCKAY: Right. DET.

O’CONNOR: And I think that – that’s why I asked if you were pre- pared to look at this. Because it’s hard. You know, two people who you obviously care about and you’re in the middle of it. And it’s hard to look at someone knowing what – MS.

MCKAY: The end result was. DET. O’CONNOR: Yeah. So is that kind of an issue possibl[e]?

MS. MCKAY: Yeah. DET. O’CONNOR: But you need to – we need to know if that’s him or not.

And then we can do our own follow ups from there. But – MS. MCKAY: I mean, from these pictures, yes, I would say this looks like him. DET.

O’CONNOR: Okay. MS. MCKAY: Yes. DET.

O’CONNOR: That’s all [inaudible]. MS. MCKAY: [Inaudible]. DET.

VAUGHN: [Inaudible] from the video? 5 MS. MCKAY: Yeah. DET. VAUGHN: Looking at the video.

MS. MCKAY: Yeah. DET. O’CONNOR: That’s one thing, we just can’t have the I think or I don’t know.

That is what it is right there in front of you. MS. MCKAY: Right. DET.

O’CONNOR: And nobody’s telling you to say one way or the other. MS. MCKAY: Right. DET.

O’CONNOR: We just need to know. MS. MCKAY: No, it looks like him. After showing the video, the detectives displayed several still images taken from the video for Ms. McKay to consider.

Ms. McKay pointed to one image and said: “Like here, it doesn’t look like him.” She pointed to another image and said: “but here it looks like him.” When Detective Vaughn echoed Ms. McKay’s comment that the latter image “looks like him,” Ms. McKay responded in the affirmative, though she added that the person in the image “looks taller” than Petitioner. The exchange among Detective O’Connor, Detective Vaughn, and Ms. McKay paused briefly while the detectives had her sign and date the still images from the video camera and collected her cell phone data. The exchange between Detective O’Connor and Ms. McKay then resumed: DET. O’CONNOR: But I just want to make sure that we’re for certain, that you understand what I’m saying, like this isn’t in between stuff, okay? 6 MS.

MCKAY: Yeah. No, I – that looks like him. I can’t deny that. Ms. McKay testified at the suppression hearing that she has known Petitioner since elementary school and was in a sexual relationship with him from 2012 through 2017.

She further testified that she did not believe the detectives had done anything to encourage her to identify Petitioner. She stated that she recognized Petitioner from the surveillance video but, given their prior relationship, she was reluctant to identify him. Petitioner sought to suppress Ms. McKay’s identification of him as the person de- picted on the surveillance camera’s videotape and still images drawn from the videotape. Petitioner argued that the detectives had engaged in impermissibly suggestive practices during the interview.

Petitioner pointed to the detectives’ efforts to induce Ms. McKay to identify him without equivocation; that is, they wanted her to declare that the person de- tected by the video camera footage “is” Petitioner rather than merely “looks like” him. In response, the State argued that even if the detectives’ behavior was suggestive, the identi- fication was nonetheless reliable. The circuit court, after hearing the testimony of Detective Vaughn and Ms. McKay and the arguments of counsel, granted the motion. The court suppressed both Ms. McKay’s out-of-court and her potential in-court identification of Petitioner.

The court seemed to conclude that the police had engaged in an impermissibly suggestive process; the court did not express a view as to the reliability of that identification. The court explained its rea- soning for suppressing Ms. McKay’s identification: [I]f the police had come in and said, here’s the video, can you tell us who’s in the video and she says I’m not sure, it’s not very clear. I’d let it in. If the police said, okay, well, let’s go get the still pictures and maybe you can see 7 it more clearly, that would be fine too.

But when they cross the line and say, now look, Daniel has a beard, that guy[] has a beard. Daniel has a nose. Do you see the nose? It’s the same nose.

And they lead her to make a positive identification.4 The State’s appeal The State timely exercised its statutory entitlement to appeal the circuit court’s rul- ing suppressing Ms. McKay’s identification of Petitioner on the video and the still images taken from that video. See supra note 1. The Court of Special Appeals in a reported opin- ion reversed the circuit court’s order granting the motion to suppress Ms. McKay’s identi- fication of Petitioner. State v. Greene, 240 Md. App. 119 (2019).

The Honorable Charles E. Moylan, Jr., Senior Judge, wrote on behalf of the Court of Special Appeals. Judge Moylan made clear at the outset that “[i]t was the police behav- ior during [the] interview [with Ms. McKay] that was the exclusive focus of the suppression hearing.” Id. at 125 . And, though the court, Petitioner’s counsel, and, presumably, the State, considered the issue to be of constitutional dimension, this was “not a case involving familiar constitutional identification law at all. Jennifer McKay was not asked to look at three separate video cam tapes and to select the one with [Petitioner] in it.

Jennifer McKay 4 The circuit court, in explaining her reasoning, paraphrased the detectives’ state- ments when she said: “Daniel has a beard, that guy has a beard. Daniel has a nose. Do you see the nose? It’s the same nose.” The record reflects that Detective Vaughn suggested to Ms. McKay that “that build looks like him” and “[t]he beard looks like him.” The record further reflects that Ms. McKay tried to get “a better look” at the nose of the person in the video.

The detectives had her examine another part of the video, which she did. Ms. McKay then noted that the person’s nose is “like pushed in more. Not as like angled like this looks. I mean, I see it, but I don’t see it.

If that makes any sense. Like, here it doesn’t look like him, but here it looks like him.” To that, Detective Vaughn replied, “[b]ut that’s the same person.” 8 was asked simply to confirm, if she could, that the man on the surveillance tape was [Peti- tioner].” Id. at 124, 125 . By invoking constitutional identification law, the Court of Special Appeals noted, Petitioner was in “the wrong pew in the wrong church.” Id. at 124 (capitalization omitted). “[W]hat really concerned [Petitioner] and defense counsel and the suppression hearing judge was a discernible effort by the police to coach” a witness whom the State would be expected to call at trial. Id. at 126 . “Any suggestiveness . . . concerned not whom Jennifer McKay would select.

There was no selective identification. It concerned how forcefully or persuasively Jennifer McKay would testify. The police wanted to prime her to be a more effective witness.” Id. The Court of Special Appeals, having concluded that the police-initiated procedure that produced Ms. McKay’s identifi- cation was not subject to review for impermissible suggestiveness that rendered the iden- tification unreliable, reversed the ruling of the suppression court.

Petitioner thereafter sought, and this Court granted, a writ of certiorari to review the judgment of the Court of Special Appeals. Petitioner poses three questions for our consid- eration. He first asks: In a case of first impression, whether the Court of Special Appeals erred in holding that Maryland adopts the “confirmatory identification” line of out-of-state cases that exempts “non-selective” identifications from pre- trial constitutional review? Assuming constitutionally-based review is available here, Petitioner poses the second and third questions: Whether the Court of Special Appeals erred in reversing the Circuit Court’s suppression of the identification of Petitioner, where the police procedures used to obtain the identification violate due process? 9 Whether the Court of Special Appeals erred in alternatively holding that the Circuit Court failed to examine the appropriate factors in ruling the identification as inadmissible?

For reasons that shall become clear, our answer to the first question is “no.” We affirm the holding of the Court of Special Appeals that this case does not involve constitutionally- based identification law. Therefore, we have no need to address the remaining questions.

II

Standard of Review The State’s direct appeal in this matter stems from the circuit court’s ruling on Pe- titioner’s motion to suppress evidence; we therefore apply the standards applicable to ap- pellate review of rulings on such motions. We view the record in the light most favorable to the prevailing party, here the Petitioner. Small v. State, 464 Md. 68, 88 (2019). We accept the suppression court’s factual findings unless they are clearly erroneous, but we review the court’s legal conclusions de novo.

Norman v. State, 452 Md. 373, 386 (2017).

III

The Parties’ Arguments Petitioner argues that the Court of Special Appeals erred in overturning the circuit court’s grant of the motion to suppress Ms. McKay’s identification of him as the person depicted on the surveillance camera video and still images drawn from that video. Peti- tioner asserts that the police subjected Ms. McKay to impermissibly suggestive procedures as were described in Stovall v. Denno, 388 U.S. 293 (1967), and its progeny leading up to the constitutionally-based due process test announced in Neil v. Biggers, 409 U.S. 188 (1972), and applied in Manson v. Brathwaite, 432 U.S. 98 (1977). He contends that the 10 intermediate appellate court should have applied that body of constitutional identification law to the actions by the police that led to the identification at issue here. According to Petitioner, had the Court of Special Appeals applied that analytical framework, that court would have concluded, as the suppression court did, that Petitioner was entitled to suppres- sion of Ms. McKay’s out-of-court identification as well as any potential in-court identifi- cation of him as the person depicted on the surveillance camera footage.

Petitioner also takes issue with what he characterizes as the intermediate appellate court’s unwarranted creation of a “new” confirmatory identification “exception” to the constitutionally-based identification law paradigm. He contends that the Court of Special Appeals “erred because although it was not a selective identification in the traditional sense it was not a ‘confirmatory identification’ either.” He maintains that, at the time the detec- tives interviewed Ms. McKay, they “were not confirming they had arrested the right per- son;” instead they merely had a “hunch” that Petitioner had committed the murder of Mr. Hickey.5 The State counters that the Court of Special Appeals correctly viewed Ms. McKay’s identification of Petitioner as outside the realm of constitutional identification law. The State directs us to Biggers and Manson. Those two cases make clear the type of police- initiated identification procedures subject to constitutional protection and, in the State’s 5 Petitioner did not seek suppression of Ms. McKay’s selection of him in a blind, sequential photo array procedure that also occurred while Ms. McKay was at the police station.

A “blind” photo array procedure is one in which the person conducting the identi- fication procedure does not know the suspect’s identity. See Maryland Code, Public