Parker v. State

³⁶⁹ BYRNES, Judge. Mantice Parker, appellant, was convicted by a jury in the Circuit Court for Baltimore City of second-degree assault, use of a handgun in the commission of a crime of violence, and unlawfully carrying a handgun. After merging the weapons offenses, the lower court sentenced appellant to ten years imprisonment for the assault conviction and a consecutive fifteen-year term for the handgun violation, with all but ten years suspended and the first five years to be served without the possibility of parole. Appellant presents the following questions for review, which we have rephrased: I. Did the trial court err in rejecting appellant’s reasons for two peremptory strikes and reseating the stricken jurors?

II

Did the trial court err in denying appellant’s motion for mistrial?

III

Did the trial court err in admitting certain hearsay statements into evidence under the “excited utterance” exception to the rule against hearsay?

IV

Did the trial court err in admitting into evidence a witness’s photographic identification of appellant and her written statements implicating appellant in the commission of the crime? For the following reasons, we answer these questions in the negative. Accordingly, we shall affirm the lower court’s judgments. FACTS This case stems from a shooting that occurred on the evening of October 14, 1996, in Baltimore City.

At around 7:30 p.m., a young black male driving a blue Ford Taurus station wagon pulled into the intersection of East 21st and Barclay Streets, and parked. The driver, who was the sole occupant of the vehicle, got out of the station wagon and ran toward another black male, Jamal Jones, who was in the 2100 ³⁷⁰ block of Barclay Street. The driver was brandishing a handgun. A chase ensued, and Jones ran into a rowhouse at 2111 Barclay Street.

Several children and adults were present in that building. The driver followed Jones into the building and fired several rounds, hitting Jones once in the arm and striking Angelena Richardson, one of the children, several times in the arm and back. The driver then returned to the Taurus station wagon and drove away. Both victims survived the incident.

Within minutes after the shooting, the police arrived and witnesses gave them a physical description of the gunman and his vehicle. They also gave the police a partial Maryland license tag number for the vehicle. A search of the Maryland Vehicle Administration’s records revealed that appellant had been issued a similar license tag number for a Ford Taurus, and that his vehicle matched the description of the one seen by the crime witnesses. 1 A witness interviewed by the police on the night of the shooting viewed a photographic array and identified appellant as the gunman. That witness also gave the police two written statements implicating appellant in the crime.

Additional facts will be recited as necessary to our discussion of the issues. DISCUSSION I Appellant contends that the trial court incorrectly applied the legal test for determining whether he exercised his peremptory strikes in an impermissibly discriminatory manner. In Gilchrist v. State, 340 Md. 606 , 667 A.2d 876 (1995), the Court of Appeals adopted the three-step procedure articulated by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 93-98 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), for a trial court to address a litigant’s claim that peremptory challenges have ³⁷¹ been exercised improperly to exclude prospective jurors solely on the basis of race. First, the objecting party must make a prima facie showing that the other party has exercised its strikes on a discriminatory basis.

Gilchrist, 340 Md. at 625 , 667 A.2d 876 . Second, after the trial court is satisfied that the complaining party has established a prima facie case, the burden shifts to the party exercising the strikes to come forward with neutral, non-discriminatory explanations for them. Id. at 625-26 , 667 A.2d 876 . “The explanation must be neutral, related to the case to be tried, clear and reasonably specific, and legitimate.” Stanley v. State, 313 Md. 50, 78 , 542 A.2d 1267 (1988), appeal after remand, 85 Md.App. 92 , 582 A.2d 532 , cert denied, 322 Md. 240 , 587 A.2d 247 (1991). “[T]he reason offered need not rise to the level of a challenge for cause,” however, because “[a]t this stage of the inquiry, the issue is the facial validity of the ... explanation.” Gilchrist, 340 Md. at 626 , 667 A.2d 876 (citation omitted). Finally, the trial court must determine whether the complaining party has met the burden of proving purposeful discrimination.

See Stanley, 313 Md. at 62 , 542 A.2d 1267 . Here, the decisive question is whether the striking party’s race-neutral explanation is credible. See Hernandez v. New York, 500 U.S. 352, 365 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991)(plurality opinion). The trial court must evaluate “each strike ... in light of the circumstances under which it was exercised, including an examination of the explanations offered for other peremptory strikes.” Chew v. State, 317 Md. 233, 245 , 562 A.2d 1270 (1989).

At this juncture, “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Purkett v. Elem, 514 U.S. 765, 768 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995)(per curiam), on remand, 64 F.3d 1195 (8th Cir.1995). The complaining party bears the ultimate burden of proving intentional discrimination and therefore should be afforded “an opportunity to demonstrate that the reasons given for the peremptory ³⁷² challenges are pretextual or have a discriminatory impact.” Gilchrist, 340 Md. at 626 , 667 A.2d 876 . In reviewing rulings on Batson challenges, we are cognizant that the “determinations made by the trial court are essentially factual, and therefore are accorded great deference on appeal.” Id. at 627, 667 A.2d 876 (citation and internal quotation marks omitted). We “will not reverse a trial judge’s determination as to the sufficiency of the reasons offered unless it is clearly erroneous.” Id.

(citation omitted). In the case sub judice, during the seating of the jury, and after the parties had exhausted their peremptory challenges, the State complained that appellant improperly had exercised his strikes to remove white prospective jurors from the panel. The State moved the court to reseat the jurors it contended appellant had stricken impermissibly on the basis of race unless appellant articulated an “acceptable explanation” for the strikes. The following colloquy then took place among counsel and the trial court, at the bench: [APPELLANT’S COUNSEL]: Can I respond?

THE COURT: Yes [counsel], you owe me an explanation. Start with [juror number] 26. Juror number 26 was seated originally in seat 8. [APPELLANT’S COUNSEL]: She is employed by the Criminal Assignment Office. I think that that is somewhat problematic.

I don’t want a person employed by Criminal Assignment sitting on my jury. THE COURT: All right. [PROSECUTOR]: May I answer that? THE COURT: You may. [PROSECUTOR]: Your Honor, the juror answered that question and said [that] she could be fair so I find that to be an unacceptable reason. THE COURT: I find it unacceptable as well.

Okay. Go ahead. [APPELLANT’S COUNSEL]: Juror number 27, I struck people who had doctors^] appointments because I don’t ³⁷³ want somebody who has a doctor’s appointment worrying about that [rather] than my trial. [PROSECUTOR]: I find that unacceptable because this Court made it clear to the venireman, that the Court would go out of its way to sit that person with doctors’] appointments. [APPELLANT’S COUNSEL]: Doesn’t mean that person will not be preoccupied with the fact that they have a doctor’s appointment scheduled [rather] than paying attention to the details of the trial, that [juror number 27] has made enough of a point to approach the bench about it means [that he is] thinking about it. * * * * [I am] [tjalking about somebody more concerned about their health than the trial. It is enough of a concern for me. [APPELLANT’S COUNSEL]: They are people who said [that] they could be fair. THE COURT: I will put a question mark on that.

THE COURT: What about juror number SO? [APPELLANT’S COUNSEL]: Judge, with that person, ever since the person was seated in the jury over there, I kept an eye on him and he kept looking back in our direction and I felt uncomfortable about him as a juror. THE COURT: [What about juror number ] 38 [?] [APPELLANT’S COUNSEL]: I struck that person because, again, her position as a physician, she indicated to the Court [that] if she didn’t work, somebody was going to have to work a double shift.... I am more interested in having somebody not worried about someone working a ³⁷⁴ double shift for them than if somebody is going to be a juror on a panel. THE COURT: The physician lady, I’ll give you the benefit on that.

The physician lady which was [juror number] 38, juror number 11, don’t bring her back. [Juror number] 30. I don’t have a problem. That was a neutral reason. [Juror number] 29 was a neutral reason. So as we stand, only [the explanation for striking juror number] 26 is unacceptable.

We’ll go with that. [PROSECUTOR]: Even though [juror number 26] is exposed to the criminal docket every day of the week? THE COURT: So am I. She never — no. I think that is unacceptable. I really do.

That is an unacceptable reason. % ?ji # [PROSECUTOR]: What about the one you had a question mark on [ie., juror number 27 ]? THE COURT: Well— [PROSECUTOR]: [The juror’s doctor’s appointment] would not interfere. THE COURT: [His doctor’s appointment] was [scheduled for] Tuesday. Also, [juror number] 27 comes back.

That is unacceptable. [APPELLANT’S COUNSEL]: Thank you judge. (Emphasis added). Appellant contends that the trial court erred by not making specific findings that his race-neutral explanations for striking Jurors # 26 and # 27 were pretexts for intentional discrimination, by requiring that the reasons proffered for the strikes be sufficient to justify the exercise of a challenge for cause, rather than merely being race-neutral, and by invoking the “extreme remedy” of reseating the stricken jurors. In addition,- appellant argues that the special deference ordinarily ³⁷⁵ accorded trial courts’ Batson rulings does not apply in this case because the court rejected his race-neutral explanations for the strikes.

Citing Ball v. Martin, 108 Md.App. 435, 456-57 , 672 A.2d 143 , cert. denied, 342 Md. 472 , 677 A.2d 565 (1996), in support, he reasons that “[a] trial court’s rejection of a facially neutral explanation deserves less deference than a trial court’s acceptance of a facially neutral explanation .... because the ... improper rejection of a racially neutral explanation infringes on the striking party’s peremptory challenge privilege.” The State counters, inter alia, that appellant waived his right to raise this issue on appeal because he did not expressly oppose the trial court’s decision to reseat the jurors, and, “after they were reseated, [appellant’s] counsel stated: 'Panel acceptable.’ ” The State is incorrect with respect to waiver. The context of the statement made by appellant’s counsel (“Panel acceptable”) makes plain that he was announcing his acceptance of the alternate jurors only. Indeed, after counsel made the statement he immediately clarified his position, stating, “[t]he alternates are acceptable.” (Emphasis added). It is clear from the record, moreover, that appellant adequately apprised the trial court of his opposition to the State’s Batson objection by articulating his reasons for the challenged peremptory strikes.

With respect to the merits of appellant’s contentions, we note first that his reliance on Ball v. Martin, supra, is misplaced. In that case, we considered the extent to which the Supreme Court’s rulings in Purkett v. Elem, supra, 514 U.S. 765 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 , and Hernandez v. New York, supra, 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 , had narrowed the scope of appellate review in those cases in which trial courts had accepted the facially neutral explanations offered by the proponent of challenged peremptory strikes and had denied Batson challenges on that basis. See Ball, 108 Md.App. at 450-56 , 672 A.2d 143 . We explained that in such a circumstance, “an appeal on Batson principles has little, if any, chance of success, given that the credibility of the ³⁷⁶ proponent offering the reasons is, as it is generally, for the trial court — not the appellate court — to determine.” Id.

We further stated that the inevitable result of Purkett’s holding (and that of Hernandez ) is that Batson issues will generally be more viable on appeal in two somewhat limited instances: ... (2) when a trial court rejects a facially neutral reason on the grounds it is pretextual, or on other grounds. But as we suggest above, Purkett extends great deference to a trial court’s acceptance (as opposed to rejection) of facially neutral reasons. In doing so, Purkett has placed, properly we believe, the trial court, not the appellate court, in the forefront of the resolution of Batson issues.

Id. (emphasis in original). Contrary to appellant’s assertion, Ball does not support the conclusion that a trial court’s rejection of a facially race-neutral explanation is entitled to less deference than its acceptance of the explanation. Ball merely suggests that a challenge to the court’s rejection (as opposed to acceptance) of a facially race-neutral explanation may stand a better chance of success on appeal.

We emphasized in Ball that “the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal” because, “[a]s with the state of mind of a juror, evaluation of the [striking party’s] state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.” Id. at 455 , 672 A.2d 143 (quoting Hernandez, 500 U.S. at 364, 365 , 111 S.Ct. 1859 (internal quotation marks omitted)). Thus, no logical distinction may be drawn between those cases in which the trial court has accepted the race-neutral reasons offered, and those cases in which it has not. In both instances, “the decisive question [is] whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Hernandez, 500 U.S. at 365 , 111 S.Ct. 1859 . For this reason, the deference that we accord a trial court’s finding on the issue of discriminatory intent is the same regardless of whether it accepted or rejected the reasons offered for the strikes. ³⁷⁷ Second, appellant is wrong when he asserts that the trial court erred by not making specific findings that his facially race-neutral explanations were pre-textual.

The findings were implied in the court’s decision to reseat the jurors and in its determination that the reasons given for removing them were “unacceptable.” See Wainwright v. Witt, 469 U.S. 412, 430 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985). It is well-settled that the trial court need not spell out every step of its reasoning process in reaching legal or factual conclusions, as “[t]rial judges are presumed to know the law and to apply it correctly.” Howard County v. One 1994 Chevrolet Corvette, 119 Md.App. 93, 108 , 704 A.2d 455 (1998). In the absence of a request by appellant for the court to articulate the basis for its conclusion that the challenged peremptory strikes were racially motivated, no further explanation was required. Third, appellant’s contention that the trial court improperly rejected his facially race-neutral explanations because they did not rise to the level of a challenge for cause also is without merit.

In support, appellant points out that the trial judge reseated Juror # 27, but not Juror # 38, even though both strikes were based on the race-neutral concern that the jurors would be more preoccupied with personal matters than with the merits of the trial, and that the trial judge reseated Juror # 26, but not Juror # 30, even though both strikes also were based on similar race-neutral reasons. Appellant concludes from this that the true basis for the trial judge’s rulings was not that “he disbelieved [appellant’s] counsel’s reasons for the strikes, but [that] he disagreed with ... counsel over whether the ... jurors could be fair.” We disagree with appellant’s reasoning. As we already have explained, “[i]n the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed.” Hernandez, 500 U.S. at 365 , 111 S.Ct. 1859 . Thus, the mere fact that the trial judge believed a facially race-neutral explanation for one strike but disbelieved the same explanation for another strike does not mean that the judge’s ³⁷⁸ decision resulted from something other than his evaluation of the proponent’s credibility.

Moreover, the record does not support appellant’s argument. First, appellant’s reasons for striking Jurors # 26 and # 30 were not the same. Appellant’s attorney proffered that he struck Juror # 26 because “[s]he was employed by the Criminal Assignment Office,” and that he did not “want a person employed by Criminal Assignment sitting on [his] jury.” By contrast, he stated that he struck Juror # 30 because “he kept looking back in our direction.” As is apparent from the court’s decision to reseat Juror # 26, it did not find appellant’s explanation for the strike credible. The record also supports the trial court’s finding that appellant’s explanation for striking Juror # 27 was pretexted.

During voir dire examination, before the parties exercised their peremptory challenges, the trial judge explained to the prospective jurors: For the people who indicated to me that they have doctors^] appointments for I think somebody has one for Monday, one for Tuesday, if you are selected, that will not present a problem. The only thing I would suggest to you is just let me know the day before and then we can work it out so you wouldn’t miss your doctors’] appointments. (Emphasis added). Because the trial court already had assured Juror # 27 that jury service would not interfere with his doctor’s appointment, it was reasonable for it to conclude that appellant’s explanation for striking that juror (“I don’t want somebody who has a doctor’s appointment worrying about that [rather] than my trial”) was pre-textual.

Moreover, the trial court’s decision to reseat Juror # 27 but not Juror # 38, even though both strikes were based on similar race-neutral reasons, was not improper given that the reason offered for striking Juror # 27 was, in fact, no reason at all. In addition, appellant’s reliance on Purkett v. Elem, supra, is misplaced. In that case, the State struck two jurors on the ground that they were “the only two people on the jury ... with the facial hair.... And I don’t like the way they looked, ³⁷⁹ with the way the hair is cut, both of them.

And the mustaches and the beards look suspicious to me.” Purkett, 514 U.S. at 766 , 115 S.Ct. 1769 . The United States Court of Appeals for the Eighth Circuit concluded that the State’s explanations were pre-textual, as a matter of law. Id. at 767 , 115 S.Ct. 1769 . The court reasoned that if a party strikes “a prospective juror who is a member of the defendant’s racial group, solely on the basis of factors which are facially irrelevant to the question of whether that person is qualified to serve as a juror in the particular case, the [striking party] must at least articulate some plausible race-neutral reason for believing those factors will somehow affect the person’s ability to perform his or her duties as a juror.” Id.

The Supreme Court reversed, holding that the Eighth Circuit had incorrectly “requir[ed] that the justification tendered ... be not just neutral but also at least minimally persuasive.” Id. at 768 , 115 S.Ct. 1769 . The Court explained that the persuasiveness of the justification does not become relevant until the third step of the Batson inquiry, when “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” Id. In this case, unlike in Purkett, the record indicates that the trial court rejected appellant’s explanations for his strikes, not because they were insufficient to support a challenge for cause, but because they were merely pretexts for intentional discrimination. Indeed, the court stated: The physician lady, I’ll give you the benefit on that.

The physician lady which was [juror number] 38, juror number 11, don’t bring her back. [Juror number] 30. I don’t have a problem. That was a neutral reason. [Juror number] 29 was a neutral reason. So as we stand, only [the explanation for striking juror number] 26 is unacceptable.

(Emphasis added). From the context of the court’s remarks, we can infer that it deemed an “acceptable” reason to be one that was truly race-neutral. The court’s determination that the reasons offered by appellant for striking Jurors # 26 and # 27 were “unacceptable” thus made plain its finding that the ³⁸⁰ strikes were racially motivated. After carefully reviewing the record, we cannot say that the trial judge was clearly erroneous in so finding.

Finally, there is no merit to appellant’s assertion that the trial court’s “resort to the ‘extreme remedy’ of recalling the stricken] jurors was reversible error.” The appropriate remedy for a Batson violation is a matter within the sound discretion of the trial judge. See Jones v. State, 343 Md. 584, 602-03 , 683 A.2d 520 (1996). Moreover, “[ujnless a party can demonstrate how he or she has been prejudiced, that party cannot complain that the seating of an improperly challenged juror violates his or her right to an impartial jury.” Id. at 604 , 683 A.2d 520 (citation and internal quotation marks omitted). Appellant has made no such demonstration in this case.

We find no abuse of discretion in the trial court’s decision to reseat the improperly stricken jurors as a sanction for appellant’s Batson violations. II Appellant’s next claim of error concerns the testimony of Angelena Richardson, one of the shooting victims. When the case went to trial in April 1998, Angelena was nine years old. Appellant’s criminal agency was hotly contested and therefore identification was a critical issue at trial.

After the shooting, Angeléna told the police that she did not know who had shot her. She did not identify the gunman to the authorities at any time before trial. In his opening statement, the prosecutor told the jury that Angelena would be testifying, but that she would be unable to identify appellant. On direct examination, Angelena answered “Yes” when asked, “Do you know Mantice?” She was then asked to recount the events of the evening in question.

Angelena testified that she and some other children were inside the house at 2111 Barclay Street playing hide and seek. They were crouched behind the front door of the building when shots rang out. The other children ran into the bathroom and shut the door. Angelena still was behind the front door, and ³⁸¹ someone was pushing on it to get in.

She then ran through the house, knocking on doors and trying to get into a room for safety. Eventually, the children and Ms. Rose, the occupant of the house, let Angelena into the bathroom with them. Ms. Rose put her in the bathtub. Angelena’s mother and the police arrived, and Angelena was taken to the hospital.

At that point in Angelena’s testimony, the following ensued: [PROSECUTOR]: You said earlier that you knew Mantice. How did you know Mantice? [WITNESS]: Because he used to be my sister’s friend Nee.® 2 3 They used to go together. [PROSECUTOR]: You saw them together? [WITNESS]: Yes. [PROSECUTOR]: Do you see him here today? Look around. [WITNESS]: Yes. [PROSECUTOR]: Can you point to him? [WITNESS]: (Indicating) [PROSECUTOR]: Did you see who shot you? [WITNESS]: No. I only saw the face. [PROSECUTOR]: What face did you see? [WITNESS]: Mantice. [PROSECUTOR]: That was the day you were shot? [WITNESS]: Yes. (Emphasis added).

On cross-examination, Angelena acknowledged that she had never told anybody that the face that she had seen at the time of the incident was appellant’s face; that she recalled telling the police that she did not remember who had shot her; and that her mother had not asked her who had shot her. She further testified that her mother had told her never to “say it out in public” and never to tell the police that she knew who ³⁸² had shot her. When asked by defense counsel, ‘Why are you saying today that the face that you saw inside that apartment was Mantice’s face?” Angelena replied, “Because I remember his face when Nee used to go with him.” On re-direct examination, the following took place: [PROSECUTOR]: Early on, people were asking you who shot you, weren’t they? [WITNESS]: Yes. [PROSECUTOR]: But you didn’t see the person who shot you, did you? [WITNESS]: I saw the face. [PROSECUTOR]: You saw a face? [WITNESS]: Yes. [PROSECUTOR]: Now, did I tell you to say Mantice Parker? [WITNESS]: No. [PROSECUTOR]: Is it true that you saw his face the day you were shot? [WITNESS]: Yes. At the conclusion of the State’s case, appellant moved for a mistrial.

He argued: [T]he[re is] strong evidence ... that Angelena Richardson has been tampered with by some party, most likely her mother[,] into giving the testimony she gave.... ... And [the mother’s] contact with her daughter ... certainly leaves open a very strong possibility [that] she could have tainted her daughter’s testimony and had [Angelena] directly or indirectly testify in a way which identified [appellant]. If you look at the overwhelming evidence in the case there is absolutely nothing that suggests [that Angelena made] a prior identification of [appellant]. The State concedes that issue.

So on the day [that] she is supposed to testify she comes in and is able to identify him? It is highly irregular. ³⁸³ The trial court held an evidentiary hearing, out of the presence of the jury. Angelena’s mother, Vernette Brown, was put on the witness stand and was examined by the parties. Ms. Brown testified that Angelena had known appellant before the shooting incident and that she had identified him to her as the shooter on the day of the incident.

Ms. Brown further testified that soon after the day of the shooting, Angelena had identified appellant to the prosecutor as the shooter. According to Ms. Brown, neither she nor anyone else told Angelena what to say at trial. The prosecutor denied ever having been told that Angelena could identify appellant as the shooter. He told the court that only after giving his opening statement did he learn that Angelena would be able to identify appellant as the shooter.

Other than Ms. Brown’s testimony, there was no evidence that Angelena ever had identified appellant as the shooter prior to her testimony at trial. After hearing argument of counsel, the court denied the motion for mistrial. It explained: ... I’m not satisfied that there was, in fact, any testimony regarding tampering of this young child____ The other part of that was whether or not there was any possibility of any wrongful conduct on the part of the State and certainly there was nothing to indicate to the court there was any wrongful conduct by the State.

I think it is clear that [Angelena] did, in fact, know [appellant] from before. Whether or not she had heard others say - quite possibly she could have, I don’t know— as [her mother] testified, everybody in the neighborhood was talking [about the rumor that appellant was the gunman], although she testified [that] she tried to shield [Angelena] from it. I find nothing to indicate to me that there was any prompting or coaching by [Angelena’s mother] of the witness, consequently the motion will be denied. Appellant contends that the trial court erred in denying his motion for mistrial because Angelena’s in-court identification of him was “a problematic procedure due to its suggestive ³⁸⁴ nature” and her testimony was so unreliable as to amount to a violation of his right to due process.

The State responds that this argument was not raised below, and thus is not properly before this Court, and that it is without merit in any event. We agree that the points appellant now argues are not those that he raised in support of his motion for mistrial. His argument below focused on whether Angelena’s mother had acted so as to taint her testimony, thereby making it unreliable, and whether the State had acted improperly by failing to disclose prior to trial that Angelena would testify that appellant was the shooter. Appellant does not argue that the trial court was clearly erroneous in its factual findings that Ms. Brown did not coach Angelena as to what to say on the witness stand, or otherwise act so as to make her testimony unreliable, and that the State did not know that Angelena was going to testify as she did, and therefore could not have withheld such knowledge.

Instead, he maintains that the in-court identification procedure itself was suggestive, and that Angelena’s testimony otherwise was unreliable because it could have been the product of rumors in the neighborhood. Accordingly, appellant did not preserve these issues for review. Rule 8-131(a). Even if appellant had raised in the trial court the arguments he now advances, we would reject them.

In Chase v. State, 120 Md.App. 141, 151-52 , 706 A.2d 613 (1998), we explained with respect to in-court identifications: In order to establish that an in-court identification of a defendant was a violation of the defendant’s due process rights, that defendant must first demonstrate that the identification was unduly suggestive. If the defendant can demonstrate that an identification was unduly suggestive, the court reviewing his claim must then look to see whether the suggestiveness of the identification was sufficiently outweighed by factors of reliability. The most important of these factors of reliability, set forth by the Supreme Court in Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972), are “the opportunity of the witness to view the ³⁸⁵ criminal at the time of the crime, the witness’ [sic] degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Id. at 199-200 , 93 S.Ct. at 382 . If the suggestive identification is sufficiently outweighed by these factors of reliability, then the identification is deemed to be valid.

Whether an in-court identification of a defendant is unduly suggestive is a matter of dispute among courts. Some courts have held that in-court identification, because of the way the defendant is isolated at the counsel table, is inherently unfair, particularly when the witness has never identified the defendant before. See United States v. Hill, 967 F.2d 226, 232 (6 th Cir.1992). Others, most notably this Court in Green v. State, 35 Md.App. 510, 520-21 , 371 A.2d 1112 (1977), have rejected the notion that in-court identifications are unduly suggestive.

In Green v. State, 35 Md.App. 510 , 371 A.2d 1112 , rev’d on other grounds, 281 Md. 483 , 380 A.2d 43 (1977), Judge Moylan stated for this Court that to the extent that a defendant contends that an in-court identification is impermissibly suggestive because of trial procedures, as opposed to pre-trial procedures, that contention must be advanced by way of cross-examination. “An in-court identification, as any other evidence, civilly or criminally, may be tested and probed by the traditional device for such testing and probing — the use of cross-examination.” Id. at 521 , 371 A.2d 1112 . Although appellant asserts in general terms in his brief that Angelena’s in-court identification of him was the product of an unduly suggestive procedure, he at no point informs us what procedure he claims was “suggestive,” or how it was suggestive. The sole contact that Angelena had with the police, one and one-half years before the trial, did not result in her identifying appellant as her assailant. In addition, there was no evidence of any “procedure” having been employed by the police or the prosecutors prior to Angelena’s testimony.

Thus, the only “procedure” about which appellant ³⁸⁶ is complaining must be the trial itself. He does not explain, however, what about the conduct of the trial was suggestive vis a vis Angelena’s in-court identification of him. To the extent that we would be inclined to review the trial proceedings for lack of due process, we cannot do so in the absence of any indication of what the supposedly offensive process was. Moreover, as Green teaches, if there had been something about the conduct of the trial itself that rendered Angelena’s in-court identification of appellant the product of suggestion, and hence arguably unreliable, appellant’s proper recourse would have been to have revealed as much through effective cross-examination, thereby