Small v. State

Leahy, J. The victim, Mr. Ellis Lee, was waiting at a bus stop in Baltimore City at approximately 2:00 a.m. on June 17, 2015. A man, who was covering part of his face with his T-shirt, pointed a gun at Mr. Lee and told him to hand over his money. Once it became clear that Mr. Lee did not have any money, the man told Mr. Lee to run and then opened fire, striking Mr. Lee once in his right lower calf muscle as he was fleeing. Shortly thereafter at the hospital, Mr. Lee gave a description of his assailant, noting that the man had a neck tattoo with a block-cursive "M" in it, and that he believed that he had seen him before and recognized his voice.

Later that same morning, after Mr. Lee was released from the hospital, he was transported to the police station where he viewed two photo arrays. In the first photo array, Malik Small ("Appellant") was the only person featured with a neck tattoo. Mr. Lee indicated that Appellant's photo may depict the man who shot him, but said that he was not sure. Then the officers presented Mr. Lee with a second photo array, and, although this time all photos featured persons with neck tattoos of various content, Appellant's photo was only one of two that had lettering in the tattoo.

More significantly, Appellant's photo was the only one repeated from the first photo array and the only one with a block cursive "M." Mr. Lee selected Appellant, stating, "This is the same tattoo and face I remember robbing me and the man I remember shooting me. I also remember him from coming into my job on two different occasions." Prior to his jury trial in the Circuit Court for Baltimore City, Appellant moved to suppress anything arising from both of the photo arrays prepared by the Baltimore City Police Department for Mr. Lee. The suppression court, although troubled by the suggestiveness of repeating Appellant's photo in the second photo array, found by clear and convincing evidence that Mr. Lee's identification was reliable. Appellant's first challenge-and the primary focus of this appeal-is whether the suppression court erred in denying his motion to suppress.

We hold that the inclusion of Appellant's photo in the first photo array showing the distinctive "M" tattooed in cursive on his neck-where no other person had a visible neck tattoo-coupled with the fact that Appellant was the only person whose photo was repeated in the second array, rendered the identification procedure impermissibly suggestive. We conclude, however, that the totality of the circumstances surrounding Mr. Lee's identification of Appellant-including recalling the unique features of his tattoo-made it sufficiently reliable to overcome the suggestive nature of the identification procedure and forfend violation of Appellant's rights under the Due Process Clause. At the conclusion of his trial, the jury convicted Appellant of attempted robbery, second degree assault, and reckless endangerment. Appellant assigns error on several additional rulings by the trial court as reflected in the following issues, which we quote from Appellant's brief: "Did the trial court err in allowing the State to impermissibly argue its opinion regarding the credibility of the Defense's sole alibi witness?" "Did the trial court abuse its discretion when it sustained the State's objection to entry of Appellant's relevant phone records into evidence?" "Did the trial court err by refusing to grant Appellant's motion for judgement of acquittal on the grounds that the State failed to present evidence sufficient to sustain Appellant's convictions for attempted robbery, second degree assault, and reckless endangerment?" Discerning no error or abuse of discretion, we affirm the trial court's judgments.

BACKGROUND A. The Hearing on the Motion to Suppress On March 18, 2016, Appellant moved to suppress the fruit of the two photo arrays prepared and administered by the Baltimore City Police. At the outset, the court suppressed the State's use of the first photo array because Det. Stanley Ottey, the detective who administered the first photo array, was unavailable at the time of the hearing. The hearing continued then on the question of whether the second photo array should be suppressed.

Mr. Lee testified to the course of events on June 17, 2015. He stated that at about 2:00 a.m. in the morning [I w]as sitting on the bus stop, the 36 bus stop on Northern Parkway and Alameda, had my phone in my right hand, checking my phone, and in the corner of my ear, I hear "Let me get your money." I looked to my immediate right. There's a male looking at me with a gun aimed towards me. I told him I don't have anything....

There was no wallet on me. He said, "Run, bitch." So he has a gun, so I ran. He then "heard some shots go off and [he] felt the pluck at the back of [his] leg and [ ] kept running." He stopped briefly to call his family, and eventually he made his way to Gittings Avenue, where he sought help at the fire department located there. Mr. Lee was transported by ambulance to The Johns Hopkins Hospital emergency room.

Baltimore City police officer Kenneth Howard, who was later joined by detectives Joel Hawk and Matthew DiSimone, met with Mr. Lee at the hospital and interviewed him about what happened. Det. DiSimone testified that Mr. Lee described his attacker as [a] black male, light skin, believed he had seen him before, a light [T]-shirt, tattoo on the right side of his neck, 5'8?, regular sized, a short haircut. He held the bottom of his shirt up over his face, blue jeans, block letter tattoo on neck, had a letter M in it.

Mr. Lee told the detectives that he believed he had seen his assailant at his job at Staples on approximately two prior occasions, but could not specify the time frame. According to Det. DiSimone, Mr. Lee recognized his assailant because of "the tattoo and his voice." Some hours later, after Mr. Lee's gunshot wound was treated and he was released from the hospital, the detectives drove Mr. Lee to the bus stop on Northern Parkway so that he could show them exactly where the incident occurred. Afterward they drove Mr. Lee to the police station where they continued interviewing him about the crime. 1.

The First Photo Array Det. DiSimone was permitted to testify as to how he compiled the first photo array in order to give context for his testimony concerning how he generated the second photo array. He recounted that when they returned to the station on the morning of the 17th, Mr. Lee provided another description of the assailant and his tattoo. Consulting his notes from that morning, Det.

DiSimone said Mr. Lee described the assailant as "[a] light brown, black male, 5'8?, regular sized, with a scraggly beard, [and] a tattoo on his neck." And Mr. Lee described the tattoo as "[b]lock styled cursive script, bold, not dull, containing multiple letters and at least one of them was an M[.]" Det. DiSimone then used a Baltimore City Police Department database to compile a group of mugshots to create a photo array based on the description Mr. Lee provided. He searched for males between 5'6? and 5'8? with light brown complexions and beards, but he did not include neck tattoos in the search. Det.

DiSimone confirmed that the first photo array was administered at roughly 8:30 a.m., and featured six African-American males, appearing to be around the same age, directly facing the camera. Each man had a beard and short, cropped hair. Despite Det. DiSimone's intention to leave tattoos out of the photos, 1 Appellant's photo was the only photo in the array with a tattoo visible on the side of his neck.

The tattoo, shown from the front, displayed a cursive "M". Mr. Lee testified that the detectives brought him "a collection of pictures on the first sheet." He recalled that, "I picked out one who kind of looked like him, but I wasn't too sure. I was, like, okay, I see the tattoo. I remember there being a LYM tattoo." The court asked: THE COURT: You mean you saw the tattoo on the picture or you saw the tattoo- MR.

LEE: Yeah. THE COURT: -on the person? MR. LEE: The tattoo on the neck, I just related the two.

I was like, oh, it looks pretty much like the same tat I saw. I identified the person, but I told them, I was like, "He was covering his face with the shirt." I'm not going to give you 100 percent of somebody's life in my control. He said, "Okay. I understand." I gave him in terms of 80 percent sure.

Det. Ottey, who administered the photo array, noted Mr. Lee's statement on the Photograph Array Action form: "# 2 looks like him, doesn't think it's him." Det. DiSimone testified that the first photo array was a "negative array," meaning that a positive identification had not been made. 2. The Second Photo Array After the conclusion of the first photo array, Mr. Lee gave another taped statement at 11:16 a.m.

Det. DiSimone testified that he conducted the interview, and that he relied on Mr. Lee's description of the tattoo in creating the second photo array. Using the same database, he inserted the parameters: "[b]lack male, light brown skin, and [ ] tattoo on neck." When asked whether the search parameters included tattoos with letters, Det. DiSimone testified that some of the tattoos may have had letters, while others did not.

When pressed by the court on this point, Det. DiSimone testified that he did not include tattoos with letters as part of his search parameters. He explained that this was because the number of people who had tattoos and met other parameters, such as light brown skin, was very small. From the limited number of "hits" that matched those parameters, Det.

DiSimone selected five male suspect profiles to include with Appellant's, making six persons featured in the second array. The second photo array, introduced at the suppression hearing as Defendant's Exhibit 4, contained two photographs on one page for each person; the photo on the left showed the person facing the camera and the photo on the right showed the person looking to his left, displaying the right side of his face and neck in profile. Appellant was the only individual that appeared in both the first and second photo arrays. Each person shown in the second array had some sort of tattoo on the right side of his neck, and one other person besides Appellant had a tattoo featuring cursive letters.

Appellant's suspect profile, however, was the only one to contain a cursive script tattoo 2 with a block letter "M" 3 and his skin tone appears markedly lighter than that of the other men featured in the second photo array. The court asked Det. DiSimone: [THE COURT]: Were any of the photographs used in the first photographic array used again in the second photographic array? [DET. DISIMONE]: No, ma'am, just the suspect. [THE COURT]: And why not? [DET.

DISIMONE]: Because they didn't have tattoos on their neck. Once Det. DiSimone finished compiling the array, Sergeant Det. Ethan Newberg, who was not involved with the investigation, administered the second photo array, roughly three hours after the first, at approximately 11:45 a.m.

When Mr. Lee saw the third photo in the second array, which showed a frontal and side picture of Appellant, Mr. Lee said, "That's him. That's who shot me." Sgt. Newberg recorded this statement electronically in his notes. Mr. Lee also wrote beneath the photo: "This is the same tattoo and face I remember robbing me and the man I remember shooting me.

I also remember him from coming into my job on two different occasions." At the suppression hearing, Mr. Lee testified that at the time he made the second identification he was "100 percent [sure] that that was the person[ ]" who had shot him. Mr. Lee testified that he had previously encountered the individual he selected from the photo array because the individual had come into the Staples, where Mr. Lee worked, about two times, and he recognized the voice of the man who shot him to be the same as the person whom he encountered on his job. Approximately two weeks after making this identification, Mr. Lee called Det. DiSimone to report seeing a man that he believed was the assailant from the night of the shooting.

Mr. Lee testified: MR. LEE: I saw a gentleman on a dirt bike, looks very similar to him right here. So I called [Det. DiSimone].

I said, "Could this be the guy here," because when he looked at me- THE COURT: So the record should reflect that the witness gestured towards [Appellant]. Go ahead. MR. LEE: When we-when I had seen him, when I looked at him, his eyes got huge and he sped off through a red light.

So I just called [Det. DiSimone] to be sure. I said, "Hey, you know, just to be sure, I remember you saying the guy was arrested already." He said, "Well, that can't be true. We already have the guy and he's"- THE COURT: Turn to me now.

I can't hear you. MR. LEE: I'm sorry. He said, "that can't be true.

We already have the guy. You know, he's already confessed to it. 4 You're fine. You should be fine. Is everything okay?" And I told him what happened.

Additionally, Mr. Lee testified that "way after" 5 identifying Appellant in the second photo array as the man who attacked him, he indicated that he was only 70 percent sure that he was correct. The court asked him, "[s]o what changed between the day of the incident when you're 100 percent sure and way after when you're 70 percent sure?" to which Mr. Lee responded, "I don't even know." During closing arguments, defense counsel urged the court to find that the identification process was unduly suggestive because "they had already shown [Mr. Lee] a picture of [Appellant]" and because after the first negative photo array, the detectives showed Mr. Lee a second array in which "[t]he one constant was [Appellant], the same individual that Mr. Lee had said [he] wasn't sure and didn't think that was him[.]" Counsel pressed: When you look at that photo array, the second photo array, when they were supposed to be-compile [sic] a photo array that contained M, tattoos with an M, none of those individuals in those photographs contain a tattoo with an M at all, and in fact, the only person with the M is [Appellant]. So when Mr. Lee looks at this, the only person-if he said, "I told you all that the person had [was] an M, show me photographs of people with M's so I can attempt to identify," and they show him six photographs and of the six photographs, only one of those photographs contain a person with an M, and if that isn't unduly suggestive that the only person that I'm looking for an the only distinguishing characteristic of the person that I'm trying to identify because I've told them about this M is [Appellant], then obviously that would be the person that he would pick out. Ultimately, the suppression court denied Appellant's motion to suppress the second photo array, stating: All right.

Well, as I said, I have no problem with the tattoo. I mean, you can't-I don't think it's reasonable to expect the police to find tattoos that are similar in addition to Defendant's that are similar. So I have no problem with the fact that everybody in the [second] photo array doesn't have the identical tattoo or even letters in their tattoo. My problem is with the timing, with the fact that they showed a picture of the Defendant at 8:30 in the morning.

In one photo array, he says, "I'm not sure that's the guy," and then they show him another photo array three hours later, approximately three hours later, and the only person that's repeated in the second photo array is the Defendant. That's troubling. Otherwise, I think the [second] photographic array, Defense 4, on its face is not suggestive. The procedure used during that small time that this photograph was shown to Mr. Lee does not appear suggestive.

So the question becomes for this Court by the preponderance of the evidence do I believe that the [second] photographic array was suggestive. The problem is that I find that it's reliable by clear and convincing evidence because the Defendant-the victim-the alleged victim knew who the Defendant was. He had already seen him twice before. He recognized the voice.

It had nothing to do with the photograph. So for those reasons, I'm going to deny the Defense's motion and allow the [second] photographic array be entered into evidence. B. The Trial At trial, Mr. Lee recounted the events that transpired on the night of the shooting. He testified that he described the assailant's physical appearance, including his neck tattoo, when he was at the hospital.

Additionally, Mr. Lee noted that while he did not know his attacker personally, he believed that he had seen him and heard him speak "around two times" at his job within the three months prior to the incident. Mr. Lee then identified Appellant in court as the "person that attempted to rob" him. Mr. Lee was asked if he remembered being shown a set of photographs, and was asked to relay the instructions that he was given before viewing the first photo array. The State asked Mr. Lee to recount how he selected a picture that he recognized in the first array, and he answered "[t]he tattoo.

The skin color helped." When asked specifically about why the tattoo stood out to him, he answered that "[i]t was the M that stood out the most, almost as if I was there at that very moment looking at him." Mr. Lee was then shown the second photo array, labeled as State's Exhibit # 2A, and he indicated that he identified "Number 3" as his assailant. The State then offered into evidence the second photo array and the instructions given prior to the second array. The trial court admitted both documents over the defense's objection. Testimony established that early in the morning on June 17, Detectives DiSimone and Hawk returned to the scene of the crime to canvass the area, but were unable to find any blood trails, shell casings, or "any other signs ... that that was the crime scene[.]" Det.

DiSimone admitted on cross-examination that he did not go to the Staples store where Mr. Lee claimed that he had seen Appellant "to do any investigation" or "pull any video ... to try to determine if [Appellant] had ever been" to that store. He also admitted that after receiving a phone call from Mr. Lee detailing his belief that he may have encountered the man who robbed him, riding on a dirt bike, he did not "do any further investigation as to the information that [Mr. Lee] provided[.]" Apart from Mr. Lee's identification, the State introduced no other evidence that linked Appellant to the crime. At the close of the State's case, Appellant moved for an acquittal on all charges. The trial court denied the motion.

Ms. Tiana Thomas, Appellant's girlfriend and sole defense witness, then testified as an alibi witness. Ms. Thomas testified that she called Appellant on the night in question after her work shift and that the two went to bed together before midnight. She said that Appellant did not leave the house during the night, that he left the house the next morning after 8:00 a.m., and that she called his phone to inform him that he forgot something at the house. Appellant attempted to enter phone records showing Ms. Thomas's phone calls to Appellant on June 16 and June 17.

The State objected to the entrance of records "that she's already testified to." The trial court sustained the objection. Appellant then renewed his motion for judgment of acquittal on all charges. He argued that there was testimony that could lead a reasonable jury to doubt Mr. Lee's credibility because "he says he's only 70 percent" sure that his identification was correct. The trial court denied the motion, stating that "[i]f the jury believes Mr. Lee, then I'm satisfied that a reasonable jury could find [Appellant] guilty[.]" The jury found Appellant guilty of attempted robbery, second-degree assault, and reckless endangerment. 6 The trial court sentenced Appellant to eight years of incarceration.

Appellant noted this timely appeal. We include additional facts as they pertain to the issues in the following discussion. DISCUSSION I. The Motion to Suppress the Second Photo Array Our review of the circuit court's denial of the motion to suppress is limited " 'to the record of the suppression hearing[.]' " James v. State , 191 Md. App. 233 , 251, 991 A.2d 122 (2010) (citations omitted). We will not disturb the suppression court's findings of fact and credibility determinations unless they are clearly erroneous, and we review the evidence and the inferences that may be reasonably drawn therefrom in the light most favorable to the prevailing party.

McFarlin v. State , 409 Md. 391 , 403, 975 A.2d 862 (2009) (citation omitted). However, we consider whether a constitutional right has been violated independently, under a de novo standard of review, applying the law to the facts. State v. Andrews , 227 Md. App. 350 , 371, 134 A.3d 324 (2016) (citing Williams v. State , 372 Md. 386 , 401, 813 A.2d 231 (2002) (additional citation omitted). Appellant contends that the suppression court's failure to grant his motion to suppress violated his right to due process.

In support of this contention, Appellant cites Webster v. State , 299 Md. 581 , 474 A.2d 1305 (1984), for the proposition, " '[D]ue process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.' " Id. at 599-600 , 474 A.2d 1305 (quoting Moore v. Illinois , 434 U.S. 220 , 227, 98 S.Ct. 458 , 54 L.Ed.2d 424 (1977) (other citations omitted). The Due Process Clause is implicated "when law enforcement officers use an identification procedure that is both suggestive and unnecessary." 7 Perry v. New Hampshire , 565 U.S. 228 , 238-39, 132 S.Ct. 716 , 181 L.Ed.2d 694 (2012) (synthesizing Manson v. Brathwaite , 432 U.S. 98 , 107, 109, 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977) and Neil v. Biggers , 409 U.S. 188 , 198, 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972) ). A photographic identification procedure that is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification[,]" should be suppressed. Simmons v. United States , 390 U.S. 377 , 384, 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968).

In Simmons , Justice Harlan, writing for the majority, forcefully described how photographic arrays, if conducted improperly, may give way to incorrect identifications: A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.... Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen , reducing the trustworthiness of subsequent lineup or courtroom identification. 390 U.S. at 383 -84 , 88 S.Ct. 967 (emphasis added) (footnote omitted).

In determining whether to suppress an extra-judicial identification on due process grounds, Maryland suppression courts undertake a two-step inquiry: The first is whether the identification procedure was impermissibly suggestive. If the answer is "no," the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable ... [U]nless and until the defendant establishes that the identification procedure was in some way suggestive, the reliability of a witness' identification is not relevant for due process purposes. (Kevin) Jones v. State , 395 Md. 97 , 109-10, 909 A.2d 650 (2006) (internal citations and footnote omitted).

Thus, in order to suppress a pretrial identification, the accused person bears the burden "to make a prima facie showing of suggestivity at a suppression hearing." Id. at 115 , 909 A.2d 650 . In other words, the accused "must show 'some unnecessary suggestiveness in the procedures employed by police.' " Thomas v. State , 213 Md. App. 388 , 417, 74 A.3d 746 (2013) (citation omitted). An identification procedure that falls "[s]hort of that point[ ] ... 'is for the jury to weigh.' " Turner v. State 184 Md. App. 175 , 185, 964 A.2d 695 (2009) (quoting Brathwaite , 432 U.S. at 116 , 97 S.Ct. 2243 ). Once an accused is successful in "showing that the procedure employed to obtain the identification was unduly suggestive[,] ... the State must then prove, by clear and convincing evidence, that the independent reliability in the identification outweighs the 'corrupting effect of the suggestive procedure.' " Gatewood v. State , 158 Md. App. 458 , 475, 857 A.2d 590 (2004) (quoting Thomas v. State , 139 Md. App. 188 , 208, 775 A.2d 406 (2001), aff'd , 369 Md. 202 , 798 A.2d 566 (2002) ).

The reliability analysis is not intended as a means to discover another ground for excluding the identification, but rather, an opportunity for the State to limit exclusion. Conyers v. State , 115 Md. App. 114 , 120, 691 A.2d 802 (1997). Should the State fail to meet its burden, then any subsequent in-court identification by the person who made the unreliable pretrial identification is inadmissible, unless the State can show an independent source for the identification. Id. at 121 , 691 A.2d 802 .

A. The Impermissibly Suggestive Prong Before this Court, Appellant contends the photo array and the procedure used to compile the array were impermissibly suggestive for at least four reasons: 1) Appellant's photo in the first array was the only photo with a visible tattoo; 2) Appellant's photo from the first array was the only one to appear in the second photo array; 3) Appellant was the only individual with a "light complexion" in the second array; and 4) The letter "M" was visible on the tattoo on Appellant's neck in the first photo array, and Appellant was only one of two individuals with tattoos on their necks that contained letters in the second photo array. Appellant also challenges the detectives' failure to show photos of "filler suspects" who more closely resembled him-including the presence of neck tattoos-as required by Maryland Code (2003, 2011 Repl. Vol., 2016 Supp.), Public Safety Article ("PS"), § 3-506.1. 8 The State counters that Mr. Lee's description of his assailant's tattoo at the hospital provided the police with an initial reason to select Appellant as a potential suspect. The State maintains that Mr. Lee did not totally exclude Appellant after the first photo array but only equivocated, indicating that the man in the photograph did look like the assailant.

This, according to the State, gave the detectives administering the array a tangible reason to place Appellant in the second photo array. Finally, the State asserts that Appellant waived his right to invoke PS § 3-506.1 on appeal. 9 Suggestiveness in the context of a photo array arises "when the manner itself of presenting the array to the witness or the makeup of the array indicates which photograph the witness should identify." Smiley v. State , 442 Md. 168 , 180, 111 A.3d 43 (2015) (citations omitted). The inquiry is not whether the police acted improperly, but whether there was police conduct that "tipped off" the witness making the identification "as to which photograph was the photograph of the assailant." Conyers , 115 Md. App. at 121 , 691 A.2d 802 . In Conyers , Judge Moylan delineated the difference between improper police behavior and impermissibly suggestive police behavior by way of a hypothetical: Even if it were to be assumed that the police dragged a witness screaming into the police station, rudely shoved her down in front of a "mug" book containing a thousand photographs, and threatened her that if she did not pick out one of them within the hour they would shoot her on the spot, such behavior would no doubt be improper.

It would not, however, be impermissibly suggestive. To do something impermissibly suggestive is not to pressure or to browbeat a witness to make an identification but only to feed the witness clues as to which identification to make. THE SIN IS TO CONTAMINATE THE TEST BY SLIPPING THE ANSWER TO THE TESTEE. All other improprieties are beside the point.

Id. (emphasis in original). Thus, as we explained in Morales v. State , "[I]t is not a Due Process violation per se that an identification procedure is suggestive." 219 Md. App. 1 , 14, 98 A.3d 1032 (2014) (citation omitted). The identification procedure must not only be suggestive, but impermissibly suggestive.

Id. When evaluating the procedure employed by law enforcement to obtain a photo identification, trial courts should examine the level of uniformity of physical features between the persons in the photo array. A "similarity in features is critical." Gatewood , 158 Md. App. at 477 , 857 A.2d 590 (citation omitted). However, while the people selected for the photos need to look similar for the photo array to be fair, it " 'need not be composed of clones.' " Smiley , 442 Md. at 181 , 111 A.3d 43 (quoting Bailey v. State , 303 Md. 650 , 663, 496 A.2d 665 (1985) (additional citations omitted) ).

A suspect's unique or unusual feature as described by a witness may be included in the array. See Sallie v. State , 24 Md. App. 468 , 472, 332 A.2d 316 (1975). To be sure, the inclusion of a unique identifying mark described in detail by a witness may aid in ensuring that an identification is trustworthy. In Sallie , this Court considered the implications of including a highly distinguishable feature-a facial scar/mark-in a pretrial photo array identification.

Id. at 472 , 332 A.2d 316 . In that case, a husband and wife were visiting a neighbor's home across the street one evening and received word from another neighbor that their house was being burglarized. Id. at 470 , 332 A.2d 316 . They quickly returned to their home and discovered that the door had been locked from the inside.

Id. In an attempt to view the assailants, the husband lifted the mail slot and peered in. Id. From his vantage point, the husband observed two men in the home and saw a diamond-shaped mark on the right cheek of one of the men.

Id. The assailants fled the house through the back and disappeared. Id. Later that night, the husband described the men to police, including a detailed description of their respective clothing and the diamond-shaped scar on the right cheek of one of the men.

Id. at 474 , 332 A.2d 316 . Additionally, a young boy who had been in the area at the time told police that he witnessed the two men outside of the home prior to the burglary and knew both men by name. Id. at 470-71 , 332 A.2d 316 . One of the police officers who responded to the burglary knew both of the men that the boy had named.

Id. at 471 , 332 A.2d 316 . The next day, the husband was shown 12 mug shots of African-American men, two of whom were men that police believed matched the description that the husband had provided the night before. Id. Despite the general uniformity of the array, the defendant, Sallie, was the only man featured with a diamond-shaped mark on his cheek.

Id. The husband readily identified Sallie, noting "the mark on Sallie's cheek as part of the reason for identifying him." Id. The husband was unable to identify the other assailant. Id.

Sallie, in an unsuccessful motion to suppress the photo array identification, argued that the inclusion of his diamond-shaped mark made the photo array impermissibly suggestive. Id. On appeal, we held that the inclusion of the mark in the photo array did not render the identification impermissibly suggestive. Id. at 472-73 , 332 A.2d 316 .

Rather, we reasoned that any perception of suggestiveness was remedied by the reliability of the identification: That mark was indeed an identifying characteristic. Observation of identifying characteristics is the core of any identification process. Differences among individuals are the very means by which one may be distinguished from all others. Similarities can lead to confusion, and even to mistake.

The not unheard-of-trick of planting a look-alike in the courtroom surely is not employed to aid in the search for truth, but to thwart that search. [Sallie] argues that his mark is unique. Every individual is unique. The mouth, the lips, the teeth, the chin, the cheeks, the nose, the eyes, the forehead, the ears, the hair, or any combination of two or more of those and other features, make every individual unique. They make him different from all others.

They are the basis upon which any person is visually distinguished from other persons. The more subtle the distinctions, the more difficult the identification, and the greater the potential for error. If the burglar in this case had not had such a distinctive mark, then Sallie's mark would have cleared him forthwith as a suspect. The fact that the burglar had the mark, and that Sallie had it, and that the mark is unique, made his identification inevitable indeed, but also made it more rather than less reliable.

Id. at 472 , 332 A.2d 316 . More recently, in Morales , this Court considered a photographic identification procedure that involved the repetitive use of a person's picture over the course of two photo arrays. 219 Md. App. at 13 -19 , 98 A.3d 1032 . A father and his two children were robbed at gunpoint. Id. at 5, 98 A.3d 1032 .

On the night of the robbery, the father and his children "went to the police station and met with [a detective] to make a statement and to look through a photo book that contained pictures of potential suspects." Id. The detective placed the children in a room together and placed the father in a separate room. 10 Id. at 5, 98 A.3d 1032 . The children identified two individuals in the array-one was the defendant, who had "similar features" to the man who had robbed them. Id. at 6, 98 A.3d 1032 .

The father was then presented with the photos. Id. He failed to make an identification, although he stated that "some pictures looked similar" to the man who robbed him. Id.

The next day, the investigating officers returned to the victims' home and showed the children a photo array that included a more recent picture of the defendant but did not include a photo of the other man that they had identified in the previous photo array. Id. The children reviewed the updated photo array individually, and both identified the defendant as the robber. Id.

The father was not home at the time, so several days after the incident, the father was shown the same updated photo array as the children. Id. The father identified the defendant as the robber and said, "that's him." Id. The defendant moved to suppress the photo array on the ground that the police procedure employed in the subsequent photo array was unduly suggestive.

Id. at 5, 7, 98 A.3d 1032 . The court denied the motion, stating that both children were very clear on the fact that the police didn't tell them which picture to pick, they didn't suggest to pick any particular picture, and the Court found their testimony as to that, which is really the issue in this case, the conduct by the police, credible. Id. at 7, 98 A.3d 1032 . The case proceeded to trial, and the defendant was found guilty.

Id. at 7, 9, 98 A.3d 1032 . On appeal, this Court held that the inclusion of the defendant's photo, but not the other man's photo, in the second photo array was not impermissibly suggestive. Id. at 18, 98 A.3d 1032 . The Court reasoned: That the police included [the defendant]'s photo for a second time without including the photo of the other potential suspect could be impermissibly suggestive if the record demonstrated that there was some reason for the witness to notice it ....

In the instant matter, there is nothing in the record to suggest that the witnesses had any reason to notice the repeated use of [the defendant]'s photograph.... While we agree that it was a factor that [the defendant] was the only suspect to appear in both the photo book and the photo array, nothing the witnesses said or did indicates that the reason they selected [the defendant]'s photograph was because they had seen it before or because they had some reason to notice it . Id. at 18, 98 A.3d 1032 (emphasis added) (internal citation omitted). This Court has held that the prohibitions on impermissibly suggestive procedures in lineups also apply to photo arrays.

Smith v. State , 6 Md. App. 59 , 69, 250 A.2d 285 (1969). In this regard, Foster v. California , 394 U.S. 440 , 89 S.Ct. 1127 , 22 L.Ed.2d 402 (1969), is instructive because, there, the Supreme Court considered the due process implications of placing an individual in a police lineup who was clearly distinguishable from the other people in that lineup. In Foster , a witness to a bank robbery traveled to a police station to view a lineup that included three men, including the defendant. Id. at 441 , 89 S.Ct. 1127 .

The defendant, who was "close to six feet in height" stood next to two other men who were significantly shorter. Id. Additionally, the defendant "wore a leather jacket which [the witness] said was similar to the one he had seen underneath the coveralls worn by the robber." Id. The witness " 'thought' he was the man, but he was not sure." Id.

The witness asked to speak with the defendant one-on-one and was permitted to do so. Id. Even after this conversation, the witness was still "uncertain whether [the defendant] was one of the robbers[,]" and he testified that " 'truthfully-I was not sure[.]' " Id. Approximately one week or 10 days later, the witness returned to the police station to view a second lineup.

Id. The second lineup contained five men, and the defendant "was the only person in the second lineup who had appeared in the first lineup." Id. at 441-42 , 89 S.Ct. 1127 . After viewing the second lineup, the witness "was 'convinced' [the defendant] was the man." Id. at 442 , 89 S.Ct. 1127 . At trial, the witness described this procedure and made an in-court identification of the defendant.

Id. The defendant was convicted, and his conviction was affirmed on appeal. Id. at 441 , 89 S.Ct. 1127 . The Supreme Court granted certiorari and reversed.

Id. The Court observed that the taint of suggestiveness began in the first lineup, when the defendant "stood out from the other two men by the contrast of his height and by the fact that he was wearing a leather jacket similar to that worn by the robber." Id. at 442-43 , 89 S.Ct. 1127 (citation omitted). The second lineup failed to ameliorate the already tainted procedure because the defendant was the only person in the first lineup to reappear in the second lineup. Id. at 443 , 89 S.Ct. 1127 .

In holding that the identification procedure employed by the police was impermissibly suggestive, the Court expounded: The suggestive elements in this identification procedure made it all but inevitable that [the witness] would identify [the defendant] whether or not he was in fact 'the man.' In effect, the police repeatedly said to the witness, 'This is the man.' * * * In the present case the pretrial confrontations clearly were so arranged as to make the resulting identification virtually inevitable. Id. at 443 , 89 S.Ct. 1127 (citation omitted). As the Supreme Court instructed in Foster and this Court restated in Morales , the inclusion of an individual-over the course of multiple photo arrays where no other persons are repeated-has the propensity to be suggestive and irreparably taint the identification if the repetition signals to the witness who he or she should select. 11 See, e.g. , People v. Yeoman , 31 Cal.4th 93 , 2 Cal.Rptr.3d 186 , 72 P.3d 1166 , 1192 (2003) ("To use a suspect's image in successive lineups might be suggestive if the same photograph were reused or if the lineups followed each other quickly enough for the witness to retain a distinct memory of the prior lineup."); State v. Ledbetter , 185 Conn. 607 , 441 A.2d 595 , 599 (1981) ("Pictorial recurrence is suggestive because by emphasizing the defendant it increases the risk of misidentification." (citing Simmons , 390 U.S. at 383 , 88 S.Ct. 967 ) (additional citation omitted) ); People v. Jones , 171 A.D.2d 757 , 567 N.Y.S.2d 311 , 312-13 (1991) ("[P]rocedures involving the repeated display of a single photograph in successive arrays until a positive identification is obtained are viewed with great caution by the courts[.]" (citation omitted) ); People v. Hall , 81 A.D.2d 644 , 438 N.Y.S.2d 148 , 148 (1981) ("The process of displaying only the defendant's picture twice in a short span of time is fraught with the possibility that the identification resulted from the procedure used and not the witness' recollection[.]" (citation omitted) ); State v. Nicoletti , 471 A.2d 613 , 616 (R.I. 1984) (recognizing that repetition of a photograph across two photo arrays is an important factor to consider in determining whether the procedure is impermissibly suggestive). Applying the foregoing principles to the present case, we conclude that the identification procedure employed by the police was impermissibly suggestive.

The first photo array the police showed Mr. Lee included six potential suspects. Appellant was the sole individual with a neck tattoo, and his tattoo was featured prominently in the photo. This made the first array similar to the lineup in Foster , where the defendant "stood out from the other two men by the contrast of his height[.]" See Foster , 394 U.S. at 442 -43 , 89 S.Ct. 1127 . Cf.

State v. Frazier , 60 N.E.3d 633 , 639 (Ohio Ct. App. 2016) concluding that the photo array used in the identification was not unduly suggestive because "[f]ive of the six men, including [the defendant], had substantial tattoos on their necks; one man, in addition to [the defendant], had a small tattoo on his face."); Anderson v. State , 414 S.W.3d 251 , 259 (Tex. App. 2013) (holding that the photo array used to identify suspected robber was not impermissibly suggestive as "[a]ll of [the men] appear[ed] to have some tattoos on their neck or upper chest."). Unlike the unique diamond-shaped scar on the defendant's face in Sallie , supra , tattoos are more common, especially in current times. See, e.g. , State v. Rios , 171 Conn.App. 1 , 156 A.3d 18 , 44 (2017) (stating that "[t]attoos have become ubiquitous in modern society, and acceptance of tattoos by those who do not have one has risen substantially[,]" and taking judicial notice of a recent poll showing that "29 percent of adults in the United States have at least one tattoo, and 69 percent of those individuals have two or more tattoos.") ).

We recognize that the distinctive features of a particular tattoo-like the unique features of a person's eyes or nose-may be the very characteristic that sets someone apart. But this case illustrates the dangers of highlighting one person in a photo array who has a feature that other people can share (i.e., having a tattoo), without including any other person in the array with a similar feature. Filler photos should include photos of persons who "resemble" the description of the suspect, including "any unique or unusual features." 12 When an assailant is described as someone with a tattoo, then the filler photos should include persons with tattoos-not necessarily the same tattoos-in the same general location, if possible, as that described by the witness. Mr. Lee's identification of Appellant in the first photo array was entirely dependent on the presence of the tattoo in the picture.

Mr. Lee testified to the following at the suppression hearing: The first time, it was a collection of pictures on the first sheet. I picked out one who kind of looked like him, but I wasn't too sure. I was, like, okay, I see the tattoo. I remember there being a LYM tattoo.

(Emphasis added). Yet, Mr. Lee was unable to positively identify his attacker, and estimated that he was roughly "80 percent sure" of his choice. The resultant negative photo array left the police in a quandary. Clearly, if the first array had included other persons with neck tattoos (as in the second photo array in this case), then the police would have been able to repeat at least one of those photos along with Appellant in a subsequent array.

What ultimately rendered the identification procedure in this case impermissibly suggestive was, only hours later, including only Appellant from the first photo array-with his distinctive "M" tattooed in cursive on his neck-in the second photo array. When pressed, Det. DiSimone admitted that he did not include tattoos that had letters in his search parameters for the other "fillers." Even though the investigating officers did not tell Mr. Lee which picture to select, the repetition of Appellant's picture, which featured a virtually identical shot of the tattoo, essentially pointed out to Mr. Lee that the repeated picture was the "correct" choice. Conyers , 115 Md. App. at 121 , 691 A.2d 802 .

This sequence of events is distinguishable from the identification procedures in Morales , where the arrays were shown a day apart and the photographs of the defendant were not only unremarkable, they were also different because the police used an updated photograph in the second array. See 219 Md. App. at 6 -7 , 98 A.3d 1032 . In the instant case, Mr. Lee had several compelling reasons to notice the repetition of Appellant's photo. The suppression court correctly identified the problematic timing of the photo arrays, along with the fact that Appellant was the only person repeated in the second array, stating: My problem is with the timing, with the fact that they showed a picture of the [Appellant] at 8:30 in the morning.

In one photo array, he says, "I'm not sure that's the guy," and then they show him another photo array three hours later, approximately three hours later, and the only person that's repeated in the second photo array is the [Appellant]. That's troubling. We hold that the inclusion of Appellant's photo in the first photo array showing the tattoo on his neck-where no other person had a visible neck tattoo-coupled with the fact that Appellant was the only person whose photo was shown in both arrays, rendered the identification procedure impermissibly suggestive. Accordingly, we turn to the second prong of the due process inquiry: whether Mr. Lee's identification exhibited sufficient indicia of reliability to overcome the suggestiveness of the photo array procedure.

B. The Reliability Prong Having determined that the identification was tainted by a high degree of suggestiveness, the test of admissibility becomes " 'whether under the "totality of the circumstances" the identification was reliable even though the [procedure] was suggestive.' " Webster , 299 Md. 581 , 601, 474 A.2d 1305 (1984) (quoting Biggers , 409 U.S. at 199 , 93 S.Ct. 375 ) (additional citations omitted). As noted above, once the accused shows that the identification procedure was impermissibly suggestive, then the burden shifts to the State to show by clear and convincing evidence that under a totality of the circumstances it was reliable. Smiley , 442 Md. at 180 , 111 A.3d 43 (citation omitted); Gatewood , 158 Md. App. at 475 , 857 A.2d 590 (citation omitted). The reliability inquiry is designed to be a limitation on exclusion and is intended to cut against a presumption of inadmissibility for impermissibly suggestive pretrial identifications.

Conyers , 115 Md. App. at 120 , 691 A.2d 802 . Appellant argues that the State failed to prove Mr. Lee's identification was reliable by clear and convincing evidence. Appellant highlights several aspects of Mr. Lee's identification that he contends make it unreliable: 1) Mr. Lee encountered the assailant late at night in a location with little lighting; 2) the assailant's face was partially covered by a T-shirt; 3) Mr. Lee reported seeing someone on the street who he believed was the perpetrator, weeks after Appellant was already in custody; and 4) Mr. Lee testified that his confidence in the correctness of his identification waivered throughout the process, dropping to "only 70 percent sure of his identification" shortly before the trial. Appellant also asserts that two momentary interactions at Mr. Lee's workplace do not rise to the "high[ ] degree of familiarity ... to overcome an otherwise suggestive array." To the contrary, the State offers several indicia of reliability, including: 1) Mr. Lee's opportunity to see and speak with Appellant on at least two prior occasions; 2) the physical proximity of Mr. Lee to his assailant during the alleged attempted robbery; 3) the accuracy of the description of Appellant's tattoo; and 4) the fact that the event was still fresh in Mr. Lee's mind when he made the identification.

The State places great emphasis on Mr. Lee's testimony that he recognized the person who attacked him from two prior interactions at Staples and recognized his voice. The State contends, therefore, that Mr. Lee did not rely solely on the photograph for making his identification. The State also avers that Mr. Lee's equivocation during his pre-trial identification of Appellant goes to the weight of the evidence, not to its admissibility, and does not justify exclusion of the second array. The Supreme Court has instructed that "reliability is the linchpin in determining the admissibility of identification testimony[.]" Brathwaite , supra , 432 U.S. at 114 , 97 S.Ct. 2243 .

The Court established a five-factor test that a court should consider in evaluating the reliability of a photo array identification and the likelihood of a misidentification: [1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness' degree of attention, [3] the accuracy of the witness' prior description of the criminal, [4] the level of certainty demonstrated by the witness at the [identification], and [5] the length of time between the crime and the [identification]. Biggers , 409 U.S. at 199 -200 , 93 S.Ct. 375 . In Biggers , a male assailant wielding a knife grabbed a woman while she was in her home and threw her to the floor. Id. at 193 , 93 S.Ct. 375 .

The victim screamed, which attracted the attention of her young daughter, who came into the room and also began screaming. Id. at 194 , 93 S.Ct. 375 . According to the victim, the assailant told her to tell the daughter " 'to shut up, or I'll kill you both.' " Id. The assailant then led the victim outside and into the woods and raped her.

Id. After the attack, the victim went to the police station, where she provided a general description of the assailant. Id. Over the next several months, the victim viewed several potential suspects in lineups and showups and viewed between 30 and 40 photographs of potential suspects.

Id. at 194-95 , 93 S.Ct. 375 . During one of the photo arrays, the victim told police that one of the men in the photographs had similar features to her assailant, but she did not make an identification. Id. at 195 , 93 S.Ct. 375 . Subsequently, the police called the victim and asked her to come to the police station to view a suspect, Biggers, who had been detained on an unrelated charge.

Id. The police attempted to create a lineup but were unable to find any suitable fillers that fit Biggers' "unusual physical description," at either the city jail or the juvenile detention center, and conducted a showup instead. Id. During the showup, officers walked Biggers past the victim several times while prompting him to say " 'shut up or I'll kill you.' " Id.

The victim identified Biggers as the assailant. Id. At trial, Biggers was convicted of rape, based in part on testimony regarding the victim's identification at the police station during the showup. Id. at 189 , 93 S.Ct. 375 .

The Supreme Court considered Biggers' habeas corpus petition, which asserted that the identification procedure violated due process. Id. at 190 , 93 S.Ct. 375 . Setting out and applying its five-factor test, the Court determined that, despite the use of the unnecessarily suggestive identification procedure, due process requirements did not demand suppression of the victim's identification. Id. at 199-200 , 93 S.Ct. 375 .

The Court weighed the facts of the case, and determined that the victim was