Small v. State

Argued before: Barbera, C.J. Greene, * Adkins, McDonald, Watts, Hotten, Getty, JJ. Greene, J. *^{74 239} Ordinarily, the reliability of relevant evidence is a matter committed to the province of the jury. There may, however, be a reliability question concerning evidence of eyewitness identifications challenged on due process grounds. In such cases, the court will review an identification's reliability in the first instance if law enforcement procured the identification utilizing suggestive procedures.

The matter before this Court concerns such a due process reliability inquiry. Petitioner Malik Small ("Petitioner" or "Mr. Small") alleges that evidence of an out-of-court identification procedure, through which the victim of an assault identified Petitioner as the perpetrator of the crime, should have been suppressed because it violated his right to due process of law. We begin by reviewing and reaffirming the well-settled test for assessing the admissibility of evidence of extrajudicial eyewitness identifications. Applying that test to the facts of this case, we conclude that the challenged identification contained sufficient indicia of reliability to overcome the suggestive nature of the pretrial identification procedures.

Therefore, we shall affirm the judgment of the Court of Special Appeals. FACTUAL & PROCEDURAL BACKGROUND On June 17, 2015, a man tried to rob, and ultimately shot, Ellis Lee ("Mr. Lee") at a bus stop in Baltimore City. Following the incident, the Baltimore City Police Department administered two photo arrays to Mr. Lee, which resulted in his identification of Petitioner Malik Small as the assailant. The State charged Mr. Small with a 10-count indictment in the Circuit Court for Baltimore City.

Before the matter proceeded to trial, Mr. Small moved to suppress evidence of the two extrajudicial photographic array identification procedures. On March 18, 2016, the Circuit Court for Baltimore City held a suppression hearing to assess the admissibility of evidence of the identification procedures. The Suppression Hearing At the outset, the suppression court ruled that evidence of the first photo array could not be admitted by the State *⁷⁵ against Mr. Small at his trial. 1 The State and Mr. Small's counsel were, however, permitted to produce evidence of the first array during the suppression hearing in order to provide context for the second photo array. The hearing proceeded on the question of whether the second photo array would be admissible in evidence at Mr. Small's trial.

During the hearing, Mr. Lee recalled the incident that occurred on June 17, 2015. He testified that, at 2:00 a.m., he was ²⁴⁰ sitting at a bus stop on Northern Parkway in Baltimore City looking at his cell phone when a man approached him. The man stood approximately one foot away from Mr. Lee, pointing a gun at Mr. Lee and covering the bottom portion of his face with a white T-shirt. The man said, "Let me get your money." Mr. Lee emptied his pockets and told the man that he did not have any money.

The man said, "Run, bitch," so Mr. Lee ran away. As Mr. Lee fled, the man fired the gun, and one bullet struck the back of Mr. Lee's right leg. Mr. Lee made it to Gittings Avenue where he was met by an ambulance that transported him to the emergency room at Johns Hopkins Hospital. While describing the incident during the suppression hearing, Mr. Lee testified that he noticed the gun before he saw the face of the man holding it.

The assailant, Mr. Lee said, was covering the bottom portion of his face up to his nose with a white T-shirt, but his neck was exposed. Mr. Lee recalled that it was dark outside, but there was a very dark orange street light shining on the man, which made it "kind of easier to see him." His interaction with the assailant, Mr. Lee estimated, lasted "two minutes at most." At the hospital, Mr. Lee was interviewed by three detectives, including Detective Matthew DiSimone, the lead investigator *⁷⁶ on the case. Detective DiSimone testified that Mr. Lee described the assailant 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 letter 'M' in it." Mr. Lee believed he had seen the assailant twice before the incident at Staples, where Mr. Lee worked, because he recognized the assailant's voice and tattoo.

Mr. Lee did not describe their interactions at Staples, and he did not know the assailant by name. After Mr. Lee was released from the hospital, Detective DiSimone and Mr. Lee revisited the scene of the crime. Then, they drove to the Northern Police District. According to Detective DiSimone, Mr. Lee gave another description of the assailant at the police station.

Mr. Lee described the assailant as "a light brown, black male, 5'8?, regular sized, with a scraggly beard, a tattoo on his neck." He also described the tattoo "in detail," as being "[b]lock styled cursive script, bold, not dull, containing multiple letters and at least one of them was an 'M.' " Detective DiSimone used a police database to compile mugshots to be included in a "photo array identification procedure." 2 To compile the array, he searched for men with light brown complexions and beards, who were between 5'6" and 5'8". He did not look for men with neck tattoos. Ultimately, the first array included six pictures - Petitioner's photo and five filler photos. 3 Detective DiSimone included one front-facing *⁷⁷ photo of each person in the first array in order to keep the tattoo out of view. "[He] felt that the tattoo was described in so much detail that it would be leading if [he] put the tattoo in the picture." Despite Detective DiSimone's intentions, ²⁴¹ the "M" tattooed on Petitioner's neck was plainly visible in Petitioner's photograph. 4 Petitioner was the only person depicted in the first array who had a visible neck tattoo.

After compiling the array, Detective DiSimone printed the six photographs and array instructions, which were to be read to Mr. Lee. He gave the photos and instructions to Detective Stanley Ottey, the administrator for the first photo array. A blind procedure 5 was used to administer the first photo array. Detective Ottey was not involved in the investigation, and neither Detective Ottey nor Mr. Lee was advised of the identity of the suspect.

Detective Ottey administered the first photo array at 8:37 a.m. During the procedure, Detective Ottey made notes about Mr. Lee's statements. In reference to Petitioner's photo, Detective Ottey wrote that Mr. Lee said he "looks like [the assailant], doesn't think it's him." Mr. Lee testified that during the first array, "[he] picked out one who kind of looked like [the assailant], but [he] wasn't too sure." He remembered seeing "[t]he tattoo on the neck, [he] just related the two ... it look[ed] pretty much like the same tat[too] [he] saw [during the incident]." Yet, Mr. Lee explained that the assailant was covering his face during the incident, so Mr. Lee said, "I'm not going to give you 100 percent of somebody's life in my control .... I gave him in terms of 80 percent sure." The parties stipulated to the fact that Mr. Lee could not make a positive identification during the first array. *⁷⁸ After the first array, Mr. Lee gave another statement to Detective DiSimone.

Then, Detective DiSimone compiled the second photo array. Detective DiSimone believed that "if a second array was shown containing side profile pictures, which gave a view of the tattoo, it might assist in ... identification." To compile the second array, Detective DiSimone searched for photos of men with light brown skin and a beard. This time, he also looked for photos of men with a tattoo on their neck. He explained that the database had a small selection of individuals with neck tattoos, so he did not specifically look for tattoos with letters.

Ultimately, the second array included twelve pictures - two photos 6 each of six individuals. Petitioner was included with five new fillers, making Petitioner the only individual from the first array who was repeated in the second array. 7 All of the fillers in the second array had a tattoo on their neck. 8 In addition to Petitioner, at least one filler had a tattoo that contained letters. None of the fillers had a tattoo with the letter "M" in it. ²⁴² The second array was administered by Sergeant Detective Ethan Newberg using a blind procedure. Sergeant Newberg was not involved in the investigation, and he did not know who the suspect was.

Likewise, Mr. Lee was not advised whom law enforcement suspected was the assailant. Sergeant Newberg conducted the procedure at approximately 11:45 a.m. in an office where only he and Mr. Lee were present. Sergeant Newberg explained that he read Mr. Lee a set of array *⁷⁹ instructions, then he showed Mr. Lee all twelve photographs. During the procedure, Sergeant Newberg made notes of Mr. Lee's statements.

In reference to Petitioner's photo, Sergeant Newberg testified that, according to his notes, Mr. Lee said, "That's him. That's who shot me." Mr. Lee testified that before the second array, he was told that he was being shown more photos "to make sure this was the same person." Additionally, he only remembered seeing Petitioner's photograph during the second array. 9 Mr. Lee went on to explain that although the assailant was covering his face, "the characters [Mr. Lee] saw on his neck and what [Mr. Lee] saw on the picture ... matched." On Petitioner's photo, Mr. Lee wrote, "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 [at Staples] on two different occasions." Mr. Lee said that when he identified Petitioner as the assailant, he was 100% sure of his identification. Mr. Lee was confident in his identification because when he saw the tattoo, "[i]t was almost like a rush of memory from both Staples and what [he] remembered seeing that night." Mr. Lee testified that two weeks later, he saw a man on a dirt bike whom he believed was the assailant.

Mr. Lee had already been told that Mr. Small was arrested, but he called the police to report the man he saw. In response, Mr. Lee *⁸⁰ recalled being told, "That can't be true. We already have the guy ... he's already confessed to it. You're fine." 10 Sometime after June 17, 2015, Mr. Lee spoke with an Assistant State's Attorney about his identification.

During that conversation, Mr. Lee indicated that he was 70% sure about his identification. Mr. Lee could not articulate what caused his confidence level to decrease. At the conclusion of the suppression hearing, the presiding judge ruled that the second photo array was admissible. To reach this conclusion, the judge first considered whether the array was suggestive.

She did not find it problematic that the individuals in the second photo array did not share the same tattoo or all have letters in their tattoos. The judge explained that it is not reasonable to expect the ²⁴³ police to find similar-looking people who also have similar tattoos. The judge did, however, take issue with the timing of the first and second arrays. She explained: My problem is with the timing, with the fact that they showed [Mr. Lee] a picture of [Mr. Small] at 8:30 in the morning ... [Mr. Lee] says, "I'm not sure that's the guy," and then they show him another photo array ... approximately three hours later, and the only person that's repeated in the second photo array is [Mr. Small].

That's troubling. Nevertheless, the judge concluded that the second photo array was admissible because she found it reliable by clear and convincing evidence. She reasoned that "[Mr. Lee] knew who [Mr. Small] was. [Mr. Lee] had already seen him twice before. [Mr. Lee] recognized his voice. It had nothing to do with the photograph." Therefore, the suppression court denied Mr. Small's motion to suppress the second photo array. *⁸¹ The Trial and Verdict The matter proceeded to trial before a jury in the Circuit Court for Baltimore City.

Ultimately, the jury found Mr. Small guilty of attempted robbery, second-degree assault, and reckless endangerment. Mr. Small was sentenced to eight years of incarceration. Mr. Small noted an appeal to the Court of Special Appeals. The Court of Special Appeals On appeal, the Court of Special Appeals reviewed, inter alia , the suppression hearing court's ruling, denying Mr. Small's motion to suppress the second photo array.

Small v. State , 235 Md. App. 648 , 668-91, 180 A.3d 163 , 174-89 (2018). The intermediate appellate court reviewed Maryland and United States Supreme Court caselaw regarding due process challenges to extrajudicial identifications. Id. As to the merits of Petitioner's due process claim, the court first concluded that the second array was suggestive.

Id. at 680 , 180 A.3d at 176 -84 . Yet, the court determined that the identification had sufficient indicia of reliability to overcome the procedure's suggestiveness. Id. at 683-91 , 180 A.3d at 184 -89 . Therefore, the Court of Special Appeals affirmed the suppression hearing court's denial of Mr. Small's motion to suppress evidence of the second photo array.

Id. at 691 , 180 A.3d at 189 . Mr. Small petitioned this Court for a writ of certiorari. We granted the petition on June 1, 2018. Small v. State , 459 Md. 399 , 187 A.3d 35 (2018).

The issue now before this Court is whether the suppression court properly denied Petitioner's motion to suppress. 11 PARTIES' ARGUMENTS Petitioner contends that the suppression hearing court erred in denying his motion to suppress evidence of the second *⁸² photo array because the identification procedure violated his right to due process of law. Petitioner challenges the Court of Special Appeals' reliability analysis. Petitioner posits that the court erred in concluding that the identification was reliable and admissible. Respondent, the State of Maryland, argues that the suppression hearing court properly admitted, and the Court of Special Appeals properly affirmed admission of, evidence of Mr. Lee's extrajudicial identification.

According to Respondent, both courts properly analyzed the identification's ²⁴⁴ reliability and therefore properly denied Petitioner's motion to suppress. Also before this Court is the brief submitted by amici curiae. 12 Amici challenge the framework that Maryland courts apply for assessing due process challenges to pretrial identifications, which was articulated by the United States Supreme Court in Manson v. Brathwaite 13 and adopted by this Court in Jones v. State. 14 Amici contend that this framework does not adequately assess an identification's reliability, and that we should revise this framework as, according to amici , many of our sister states have done. DUE PROCESS CHALLENGES TO EXTRAJUDICIAL IDENTIFICATION PROCEDURES The right to due process of law is guaranteed by the Fifth Amendment and Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Webster v. State , 299 Md. 581 , 599, 474 A.2d 1305 , 1314 (1984).

"Due process protects the accused against *⁸³ the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures." Jones , 310 Md. at 577, 530 A.2d at 747 (quoting Moore v. Illinois , 434 U.S. 220 , 227, 98 S. Ct. 458 , 464, 54 L.Ed.2d 424 (1977) ). When an accused challenges the admissibility of an extrajudicial identification procedure 15 on due process grounds, Maryland courts assess its admissibility using a two-step inquiry. Id. The inquiry, in essence, seeks to determine whether the challenged identification procedure was so suggestive that the identification was unreliable.

"[R]eliability is the linchpin[.]" Manson , 432 U.S. at 114, 97 S. Ct. at 2252, 53 L.Ed.2d 140 . In step one of the due process inquiry, the suppression court must evaluate whether the identification procedure was suggestive. Jones , 310 Md. at 577, 530 A.2d at 747. The defendant bears the burden of making a prima facie showing of suggestiveness.

See Smiley v. State , 442 Md. 168 , 180, 111 A.3d 43 , 50 (2015). If the court determines that the extrajudicial identification procedure was not suggestive, then the inquiry ends and evidence of the procedure is admissible at trial. Jones , 310 Md. at 577, 530 A.2d at 747. If the court determines that the identification procedure was tainted by suggestiveness, then evidence of the identification is not per se excluded.

Id. ; Perry v. New Hampshire , 565 U.S. 228 , 232, 132 S. Ct. 716 , 720, 181 L.Ed.2d 694 (2012) ("An identification infected by improper police influence, our case law holds, is not automatically excluded."). Rather, the suppression court must proceed to the second stage of the due process inquiry. Jones , 310 Md. at 577, 530 A.2d at 747. In step two of the due process inquiry, the suppression court must weigh whether, under the totality of the *⁸⁴ circumstances, the identification was reliable.

Id. ²⁴⁵ At this stage, the burden rests with the State to show that the identification was reliable by clear and convincing evidence. Smiley , 442 Md. at 180 , 111 A.3d at 50 . The United States Supreme Court and this Court have previously identified five factors that may be used to assess reliability. The factors include the witness's opportunity to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's description of the criminal, the witness's level of certainty in his or her identification, and the length of time between the crime and the identification.

Jones , 310 Md. at 577-78, 530 A.2d at 747 (citation omitted); Neil v. Biggers , 409 U.S. 188 , 199-200, 93 S. Ct. 375 , 382, 34 L.Ed.2d 401 (1972). Ultimately, the court must determine whether the identification is admissible by "weigh[ing] the reliability of the identification against the 'corrupting effect' of the suggestiveness." Jones , 310 Md. at 578, 530 A.2d at 747 (citation omitted). Amici urge us to abandon this legal framework and endorse a revised approach that is consistent with the New Jersey Supreme Court's decision in State v. Henderson , 208 N.J. 208 , 27 A.3d 872 (2011). In Henderson , the New Jersey Supreme Court undertook an extensive review of a court-appointed special master's recommendations about the factors that many experts believe impact a witness's ability to identify the perpetrator of a crime.

Id. Based on these recommendations, the court delineated a list of factors that trial courts may consider when assessing suggestiveness and reliability. 16 Id. at 920-21. *⁸⁵ In addition, the court revised the Manson framework. 17 ²⁴⁶ The case at bar is not this Court's first opportunity to review Maryland's Manson - Jones framework in light of the *⁸⁶ New Jersey Supreme Court's decision in Henderson . See Smiley , 442 Md. at 184 , 111 A.3d at 52 . In Smiley , we had the opportunity to adopt New Jersey's framework for assessing the admissibility of eyewitness identifications, but we did not do so.

Id. "We decline[d] to do so, because this Court, as well as the Court of Special Appeals, have consistently reaffirmed application of the procedure in [ ] Jones for examining challenges to the admissibility of eyewitness identifications." Id. Consistent with our decision in Smiley , we decline the invitation to abandon the Manson - Jones framework, which Maryland courts use, and have used for decades, to assess due process challenges to extrajudicial identification procedures. 18 The reliability inquiry remains to be whether, under the totality of the circumstances, the challenged identification was reliable, despite the suggestiveness in the identification procedure. The focus of the reliability assessment is on the totality of the circumstances, and such an inquiry is necessarily a comprehensive one.

Suppression courts can and ought to consider the myriad of facts and circumstances presented by a particular case, which may impact the identification's reliability. *⁸⁷ Wood v. State , 196 Md. App. 146 , 162, 7 A.3d 1115 , 1124 (2010) ("A reliability appraisal ... is extremely fact-specific. It is a multi-factored determination that, with the help of guidelines, looks to the totality of the circumstances."). The court's assessment should be guided by the circumstances before it. In addition to the five Biggers 19 reliability ²⁴⁷ factors, the suppression court may find that the factors identified in Henderson , many of which overlap with the Biggers factors, and other factors are relevant to the court's evaluation. 20 See, e.g. , United States v. Greene , 704 F.3d 298 , 308-10 (4th Cir. 2013) (applying the Henderson variables in conjunction with the five Biggers factors).

Therefore, although we do not revise this Court's jurisprudence for assessing the admissibility of eyewitness identifications, we do recognize the breadth that is inherent in an inquiry that hinges upon the totality of the circumstances. 21 Having established the appropriate test for analyzing Petitioner's due process challenge, we now apply the aforementioned principles to the facts of this case. *⁸⁸ STANDARD OF REVIEW Upon reviewing a suppression hearing court's decision to grant or deny a motion to suppress, we limit ourselves to considering the record of the suppression hearing. McFarlin v. State , 409 Md. 391 , 403, 975 A.2d 862 , 868-69 (2009). We accept the suppression hearing court's factual findings and determinations regarding the credibility of testimony unless they are clearly erroneous. Id. at 403 , 975 A.2d at 869 .

Findings cannot be clearly erroneous "[i]f there is any competent material evidence to support the factual findings of the trial court[.]" YIVO Institute for Jewish Research v. Zaleski , 386 Md. 654 , 663, 874 A.2d 411 , 416 (2005). The evidence and inferences reasonably drawn therefrom are viewed in the light most favorable to the prevailing party. McFarlin , 409 Md. at 403 , 975 A.2d at 869 . Legal conclusions are reviewed de novo.

Id. We independently apply the law to the facts to determine whether a defendant's constitutional rights have been violated. Id. DISCUSSION A. Suggestiveness First, we review whether Petitioner made a prima facie showing that the second photo array procedure was suggestive.

Before this Court, the parties agree that the procedure was suggestive. Nonetheless, we conduct our own constitutional evaluation of the array in order to provide guidance primarily to Maryland courts and law enforcement. An identification procedure is properly deemed suggestive when the police "[i]n effect ... repeatedly sa[y] to the witness, ' This is the man.' " Jones , 310 Md. at 577, 530 A.2d at 747 (citing ²⁴⁸ Foster v. California , 394 U.S. 440 , 443, 89 S. Ct. 1127 , 22 L.Ed.2d 402 (1969) ). The impropriety of suggestive police misconduct is in giving the witness a clue about which photograph the police believe the witness should identify as the perpetrator during the procedure.

See Conyers v. State , 115 Md. App. 114 , 121, 691 A.2d 802 , 806 (1997), cert. *⁸⁹ denied , 346 Md. 371 , 697 A.2d 111 (1997) ("The sin is to contaminate the test by slipping the answer to the testee." (emphasis omitted)). In the context of a photographic array, the array's composition may, for instance, signal to the witness which photo to select. Smiley , 442 Md. at 180 , 111 A.3d at 50 (citations omitted). This Court has said that the composition of a photo array "to be fair need not be composed of clones." Id. at 181 , 111 A.3d at 50 (citations omitted).

Though, the individuals in the array should resemble each other. Webster , 299 Md. 581 , 620, 474 A.2d 1305 , 1325 (1984). Concerns may arise when one individual's photograph is shown to a witness multiple times or somehow stands out from the other photos in the array. Simmons v. United States , 390 U.S. 377 , 383-94, 88 S. Ct. 967 , 971, 19 L.Ed.2d 1247 (1968) (explaining that if a witness sees "the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized ... the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen[.]").

This Court has not had occasion to address whether depicting an individual's tattoo in a photo array may render the array suggestive. The Court of Special Appeals has, however. See, e.g. , Sallie v. State , 24 Md. App. 468 , 332 A.2d 316 (1975). In Sallie , an eyewitness to a robbery described one of the robbers as having a diamond-shaped mark on his right cheek.

Id. at 470 , 332 A.2d at 317 . Law enforcement showed the eyewitness a photo array, in which Louis Sallie was depicted with a diamond-shaped mark on his cheek. Id. at 471 , 332 A.2d at 318 . The witness identified Mr. Sallie as the perpetrator, at least in part because of the mark.

Id. On appeal, Mr. Sallie argued the photo array was suggestive because he was the only person pictured with a diamond-shaped mark on his right cheek. Id. at 472 , 332 A.2d at 318 . Based on the alleged suggestiveness in the photo array, Mr. Sallie argued that the eyewitness's in-court identification of Mr. Sallie was tainted and, thus, inadmissible.

Id. *⁹⁰ The court reviewed the photo array for suggestiveness. Id. Although the court determined that the mark was a unique identifying feature, the court explained: 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 potential for error. Id. at 472 , 332 A.2d at 318 .

The court reasoned that the burglar's distinctive mark could have exonerated Mr. Sallie, but it implicated him because the burglar and Mr. Sallie both had the unique mark. Id. The mark, therefore, made the identification not only "inevitable" but also more reliable. Id.

Ultimately, the Court of Special Appeals concluded that, despite the fact that Mr. Sallie was pictured with his unique identifying mark, the photo array was not suggestive. Id. at 472 , 332 A.2d at 318 . Additionally, the Court of Special Appeals has reviewed whether repeating an ²⁴⁹ individual's picture may render a photo array suggestive. See, e.g. , Morales v. State , 219 Md. App. 1 , 98 A.3d 1032 (2014).

In Morales , Luis Morales argued that the identification procedure, through which he was identified as the perpetrator of a crime, was impermissibly suggestive. Id. at 17-18 , 98 A.3d at 1042 . His argument rested upon the fact that he was the only person included in both of the two identification procedures administered to the witnesses. Id.

The court determined that there was no reason to believe that the witnesses noticed that Mr. Morales's photo was repeated. Id. at 18 , 98 A.3d at 1042 . The police used a more recent photo of Mr. Morales in the second procedure than the first procedure. Id.

In addition, nothing that the witnesses said indicated that they chose Mr. Morales's photograph because they had seen it before. Id. at 18 , 98 A.3d at 1043 . Therefore, the court concluded that the identification procedure was not suggestive. Id. at 19 , 98 A.3d at 1043 . *⁹¹ In the present case, Petitioner's photo was emphasized during the first photo array.

Petitioner was the only person in the first array who had a tattoo visible on his neck. Petitioner's tattoo was prominently visible, and it clearly depicted a cursive-script "M." Our determination that Petitioner's photo was emphasized is also evidenced by the fact that Detective DiSimone recognized that to depict Petitioner's conspicuous tattoo in the first array would draw attention to his photo. Detective DiSimone testified "that the tattoo was described in so much detail that it would be leading if [he] put the tattoo in the picture" during the first array. Despite the tattoo's presence, unlike in Sallie , Mr. Lee was only 80% positive that Petitioner was the assailant after viewing the first array.

After Petitioner's photo was emphasized in the first photo array, his photo recurred in the second array. Unlike in Morales , Mr. Lee had reason to notice that Petitioner was repeated in the second array. Petitioner was the only person from the first array with an "M" tattoo, and then the only person from the first array who was repeated in the second array. Although Petitioner was not the only person in the second array with a tattoo on his neck, he was, again, the only person with the letter "M" tattooed on his neck.

The implicit suggestion inherent in repeating Petitioner's photo with his distinct tattoo is also bolstered by the fact that Mr. Lee recalled being told that the second array was "to make sure this was the same person," after Mr. Lee said that Petitioner "looked like" the assailant as depicted in the first array. Similar to Morales , however, law enforcement used a different photo of Petitioner in the second array than in the first array. Additionally, nothing that Mr. Lee said indicated that he chose Petitioner's photograph in the second array because he saw it in the first array. To the contrary, at the suppression hearing, Mr. Lee testified that he identified Petitioner because he recognized Petitioner's tattoo from the incident and Staples, not from the first array.

The fact that Mr. Lee may not have been susceptible to the suggestive procedure does not absolve this procedure of its suggestive *⁹² elements. By emphasizing Petitioner's photo in the first array, and then repeating Petitioner's photo in the second array, law enforcement implicitly suggested to Mr. Lee that he should identify Petitioner as the assailant. See Simmons , 390 U.S. at 383 , 88 S. Ct. at 971 , 19 L.Ed.2d 1247 . Therefore, we conclude that the second photo array was unduly suggestive.

B. Reliability Having concluded that the second photo array was suggestive, we move to ²⁵⁰ the second step of the due process inquiry. At this stage, the suppression court must screen the identification's reliability to determine "[i]f there is 'a very substantial likelihood of irreparable misidentification.' " Perry v. New Hampshire , 565 U.S. 228 , 232, 132 S. Ct. 716 , 720, 181 L.Ed.2d 694 (2012) (citation omitted). The State bears the burden of proving reliability by clear and convincing evidence. Morales , 219 Md. App. at 14 , 98 A.3d at 1040 .

When assessing an identification's reliability, among the factors that the suppression court may consider are: (i) the opportunity of the witness to view the criminal at the time of the crime; (ii) the witness' degree of attention; (iii) the accuracy of the witness' prior description of the criminal; (iv) the level of certainty demonstrated by the witness at the confrontation; and (v) the length of time between the crime and the confrontation. Neil v. Biggers , 409 U.S. 188 , 199-200, 93 S. Ct. 375 , 382, 34 L.Ed.2d 401 (1972). The critical inquiry is "whether under the 'totality of the circumstances' the identification is reliable even though the confrontation procedure was suggestive." Webster , 299 Md. at 601 , 474 A.2d at 1315 (citing Biggers , 409 U.S. at 198 , 93 S. Ct. at 382 ) (citations omitted). As this articulation suggests, the identification's reliability must be weighed in light of the procedure's suggestiveness. *⁹³ A suppression court assessing an identification's reliability must be mindful of the fact that reliability is not a ground upon which the accused may argue for exclusion.

The issue of reliability is "by diametric contrast, a severe limitation on such exclusion." Conyers , 115 Md. App. at 120 , 691 A.2d at 805 . It provides the State with a means to show that the identification has sufficient indicia of reliability to warrant admitting it into evidence for the jury, the ultimate arbiter of reliability, to consider. See Wood v. State , 196 Md. App. 146 , 162, 7 A.3d 1115 , 1124 (2010) ("[R]eliability is quintessentially a jury question and an evidentiary issue," and "it is not a catalyst for suppression but an antidote thereto."). Thus, where a procedure's suggestiveness creates a very substantial likelihood that the witness misidentified the culprit, evidence of the identification must be suppressed in order to preserve the accused's right to due process of law.

Perry , 565 U.S. at 239 , 132 S. Ct. at 724 -25 , 181 L.Ed.2d 694 . Where, however, "the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth." Id. at 232 , 132 S. Ct. at 721 , 181 L.Ed.2d 694 . In Manson v. Brathwaite , the Supreme Court concluded that there was no substantial likelihood that the eyewitness misidentified the culprit, even though the identification was procured by showing the eyewitness one photograph. 432 U.S. 98 , 116, 97 S. Ct. 2243 , 2254, 53 L.Ed.2d 140 (1977). There, the eyewitness stood at the perpetrator's door for two to three minutes, and the door opened twice.

Id. The eyewitness spoke to the perpetrator, and it was not dark outside. Id. The eyewitness was a trained police officer, not a casual observer.

Id. He gave a description of the perpetrator within minutes of the incident, which described the perpetrator's race, height, build, hair color and style, high cheek bones, and clothes. Id. The eyewitness saw the photograph two days after the confrontation, and he was positive about his identification.

Id. In Biggers , the Supreme Court concluded that evidence of a victim's identification, ²⁵¹ which was made at a suggestive showup *⁹⁴ procedure, was admissible because there was no substantial likelihood of misidentification. 409 U.S. at 201 , 93 S. Ct. at 383 , 34 L.Ed.2d 401 . There, the victim spent thirty minutes with the assailant under artificial light and moonlight. Id. at 200 , 93 S. Ct. at 382 .

The victim's description was "more than ordinarily thorough," as it included the assailant's age, height, weight, complexion, skin texture, build, and voice. Id. She was confident in her identification. Id. at 201 , 93 S. Ct. at 383 .

Additionally, the witness was the victim of the crime, not a casual observer. Id. at 200 , 93 S. Ct. at 382 -83 . Lastly, although the identification was made seven months after the crime, the victim only made one identification during the multiple showups she viewed. Id. at 201 , 93 S. Ct. at 383 .

Under the facts of this case, the suppression court and the Court of Special Appeals concluded that there was clear and convincing evidence that Mr. Lee's identification of Petitioner was reliable. The suppression court reached this conclusion based on Mr. Lee and Petitioner's prior familiarity. The Court of Special Appeals rested its holding on Mr. Lee's prior familiarity with Petitioner. Exercising its independent authority, the court also considered a multitude of other reliability factors.

We review the factors that both courts considered to establish reliability. Prior Familiarity First, the suppression court found that Mr. Lee had prior familiarity with Petitioner, so the identification "had nothing to do with the photograph [Mr. Lee saw during the first array]." The Court of Special Appeals also determined that their prior familiarity bolstered the identification's reliability. Based on the record, Mr. Lee told Detective DiSimone at the hospital that he "believed he had seen [the assailant] before." Mr. Lee elaborated that he had seen the assailant at Staples, where Mr. Lee was employed, on two occasions. Mr. Lee did not provide specifics about the nature of these encounters, and he did not know the assailant by name.

Still, immediately after identifying Petitioner as the assailant, Mr. Lee *⁹⁵ wrote on Petitioner's photo that he "remember[ed] [Petitioner] from coming into my job [at Staples] on two different occasions." Additionally, Mr. Lee testified that he was confident in his identification because when he saw Petitioner's tattoo in the second array, it "was almost like a rush of memory from both Staples and what [he] remembered seeing that night [during the incident]." Petitioner argues that for prior acquaintanceship to bolster the reliability of an identification, we must require a higher degree of prior familiarity between the eyewitness and the alleged perpetrator. Petitioner's argument invites the imposition of an arbitrary acquaintanceship requirement, which we are not willing to adopt. When a witness claims to recognize an assailant from a prior encounter, the credibility of the witness's statement is a factual matter. In this case, the suppression court chose to credit Mr. Lee's testimony that he recognized the assailant, and that the recognition aided him in making an identification.

That Mr. Lee did not know the assailant by name or provide details about the prior encounters may detract from the weight that the jury ultimately assigns Mr. Lee's testimony. It does not render the suppression court's factual finding of prior familiarity clearly erroneous. Therefore, affording due deference to the suppression court's decision to credit Mr. Lee's testimony and finding of prior familiarity, we conclude that the fact that Mr. Lee recognized the assailant from ²⁵² encounters preceding the incident weighs in favor of reliability. Opportunity to View Next, we review Mr. Lee's opportunity to view the assailant at the time of the crime.

In the case at bar, there is no challenge to the accuracy of Mr. Lee's description of the assailant or the opportunity or ability for Mr. Lee to formulate the description he gave to police. The undisputed facts indicate that Mr. Lee's encounter with the assailant lasted approximately two minutes. During that time, Mr. Lee and the assailant were close together, only separated by about one foot, and Mr. Lee spoke with the assailant. As Petitioner *⁹⁶ points out, it was dark outside during the incident at 2:00 a.m., and the only lighting was a "dark orange" colored street light.

Yet, Mr. Lee testified that the street light was shining directly on the assailant, which made it easier for Mr. Lee to see him. In addition, Petitioner notes that the assailant was covering the bottom portion of his face with a white T-shirt. Despite the partial obstruction, Mr. Lee was still able to see the uncovered portions of the assailant's face, hair, and neck, and describe the assailant's skin tone, beard, hair, and neck tattoo. Viewing these facts in the light most favorable to the State, we conclude, as did the Court of Special Appeals, that Mr. Lee's opportunity to view the assailant weighs in favor of reliability.

Degree of Attention In addition, we review Mr. Lee's degree of attention during the encounter. Mr. Lee stood approximately one foot away from the assailant. He spoke with the assailant when he explained that he did not have any money. Mr. Lee was the victim of the crime, not a "casual or passing observer." See Webster , 299 Md. at 621 , 474 A.2d 1305 (determining that because the witnesses were subjected to threats during the robbery, their degree of attention was "intense.").

Additionally, he was sufficiently attentive to notice and recall the assailant's skin tone, hair, facial hair, and neck tattoo. Petitioner contends that Mr. Lee's degree of attention cannot weigh in favor of reliability because the assailant had a gun during the encounter. See Henderson , 27 A.3d at 904-05 (explaining that the presence of a weapon during a short encounter can impact the reliability of a witness's ability to reliably identify and describe the perpetrator). Indeed, weapon-focus may be a circumstance that suppression courts consider within their reliability assessment.

See, e.g. , U.S. v. Greene , 704 F.3d 298 , 308 (4th Cir. 2013) (explaining that the eyewitness had a gun pointed at her, which weighed against the reliability of her testimony). In order to conclude that weapon-focus impaired Mr. Lee's identification and description of the assailant, we would need facts from which we could infer that the weapon distracted Mr. Lee. Mr. Lee testified *⁹⁷ that "[he] saw the gun first before [he] saw the guy connected." At best, we can discern that Mr. Lee saw the gun first, but in addition to, the person holding it. Viewing the facts in the light most favorable to the State, Mr. Lee's proximity to the crime and the details that he observed about the assailant indicate that he was attentive during the crime.

We conclude that Mr. Lee's degree of attention weighs in favor of reliability. Accuracy of Prior Descriptions We also review the accuracy of Mr. Lee's prior descriptions of the assailant. At the hospital, Mr. Lee described the assailant 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 ²⁵³ letter 'M' in it." Neither party contends that the attributes in this initial description inaccurately describe Petitioner.

Notably, Mr. Lee's description includes more than just general qualities that could illustrate the features of an innumerable number of people. In particular, Mr. Lee described the block letter "M" tattoo at the hospital. Accordingly, from the outset, Mr. Lee's description of the assailant described Petitioner with considerable specificity. Petitioner argues that Mr. Lee's description of the assailant's tattoo changed after he viewed Petitioner's photo in the first array, and that this demonstrates the corrupting impact of the first photo array.

Specifically, Petitioner contends that Mr. Lee first described the assailant's tattoo as being in cursive script after the first array, whereas Respondent argues that this detail emerged before the first array. At the suppression hearing, Detective DiSimone was asked what information he had about the assailant's tattoo to rely on when compiling the first array. Detective DiSimone consulted his notes, and he said, "Block styled cursive script, bold, not dull, containing multiple letters and at least one of them was an 'M' was the description that was provided." There was some confusion, however, as to when Detective DiSimone recorded *⁹⁸ the notes that he consulted. Viewing Detective DiSimone's testimony in the light most favorable to the State, regardless of when the detective made those notes, when he compiled the first array he apparently knew that the assailant's tattoo included a cursive script "M." Moreover, in the detailed description of the assailant's tattoo, Mr. Lee also said that the assailant's tattoo had "multiple letters" in it.

This description is consistent with Petitioner's profile-view photo in the second array, in which the letters "L," "Y," and "M" are seen tattooed on Petitioner's neck. We also observe that only the letter "M" is visible in the first array. The letters "L" and "Y" cannot be seen, and it is not observable from the first array that Petitioner's tattoo contains additional letters. Therefore, Mr. Lee could not have discerned this detail from the first array.

Viewing the facts in the light most favorable to the State, because Detective DiSimone said that the detailed description of the tattoo was provided before the first array, and because the fact that Petitioner's tattoo contained multiple letters is not discernable from the first array, we cannot conclude that the first array corrupted Mr. Lee's description of the assailant. We conclude that Mr. Lee's description of the assailant weighs in favor of reliability. Level of Certainty Additionally, we consider Mr. Lee's level of certainty. Mr. Lee's level of certainty undisputedly wavered.

During the first photo array, Mr. Lee said that Petitioner's photo looked like the assailant, but he was only 80% sure of his claim. Then, three hours later, Mr. Lee saw Petitioner's photo again, and he identified Petitioner as the assailant. This time, Mr. Lee was 100% sure of his identification. Mr. Lee questioned his identification two weeks later when he thought he saw the assailant on a dirt bike, even though he knew Petitioner had been arrested.

Mr. Lee's level of confidence decreased sometime subsequent to June 17, 2015, when Mr. Lee told an Assistant State's Attorney that he was 70% sure of his identification of Petitioner. At the suppression hearing, Mr. Lee could *⁹⁹ not explain why his confidence level varied. We conclude, as did the Court of Special Appeals, that Mr. Lee's wavering level of certainty does not weigh in favor of reliability. Lapse in Time Next, we must consider the length of time between the crime and the display ²⁵⁴ of the photo array.

The attempted robbery occurred at 2:00 a.m. on June 17, 2015. The presentation of the second array occurred at approximately 11:45 a.m. on June 17, 2015. Approximately ten hours lapsed between the crime and the display of the photo array. 22 Within that time frame, Mr. Lee also viewed the first array. Although Petitioner's photo was emphasized in the first array, and then repeated three hours later in the second array, Mr. Lee never indicated that the first array impacted his identification.

To the contrary, Mr. Lee connected his identification to his memory of the incident, ten hours earlier, and his prior encounters with the assailant at Staples. For instance, Mr. Lee wrote on Petitioner's photograph, "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 [at Staples] on two different occasions." He also explained that he was confident in his identification because seeing Petitioner's tattoo in the second array was "like a rush of memory from both Staples and what [he] remembered seeing that night." We conclude that the lapse in time between the crime and the confrontation weighs in favor of reliability. *¹⁰⁰ Petitioner's Neck Tattoo 23 Finally, the Court of Special Appeals reviewed the presence of Petitioner's neck tattoo as an independent factor impacting the identification's reliability. In its discussion, the court explained that the assailant's tattoo was distinctive to Mr. Lee and served as an identifying feature.

Channeling the logic from Sallie , the court concluded that because the assailant and Petitioner both had the tattoo, Mr. Lee's identification of Petitioner was "inevitable indeed, but also ... more rather than less reliable." Small , 235 Md. App. 648 , 691, 180 A.3d 163 , 188 (2018) (quoting Sallie , 24 Md. App. at 472 , 332 A.2d at 318 ). We agree with the Court of Special Appeals that, for Mr. Lee, the tattoo was a distinct, identifying feature of the assailant. Following the attempted robbery, Mr. Lee described the assailant's tattoo to law ²⁵⁵ enforcement in detail. Furthermore, Mr. Lee testified that he was confident in his ultimate identification of Petitioner because of "the tattoo specifically." The Court of Special Appeals, however, viewed the second array in isolation.

We do not overlook the fact that part of Petitioner's tattoo was displayed in the first photo array, nor that Mr. Lee was not 100% certain that the person in the photo was the assailant. Nonetheless, we observe that the *¹⁰¹ second array portrayed more information about Petitioner's tattoo than the first array. The first array included one front-facing photo of Petitioner, depicting the "M" in Petitioner's tattoo. In addition to a front-facing photo of Petitioner, the second array included a profile-view photo of Petitioner, depicting Petitioner's full "LYM" tattoo.

We discern from these facts that Mr. Lee was apparently not susceptible to the suggestion inherent in depicting the "M" in Petitioner's neck tattoo in the first array because Mr. Lee did not make a positive identification during the first array. Mr. Lee noted that Petitioner's tattoo "look[ed] pretty much like the same tat[too] he saw [during the incident]." He was, however, only 80% sure about his identification. Mr. Lee made an identification with 100% certainty after he viewed the second array. Petitioner's photo appeared in the first array and in the second array.

Yet, Mr. Lee did not indicate that he chose Petitioner's photo because his photo was repeated in the second array.