Smiley v. State

BATTAGLIA, J. During the early hours of December 10, 2011, while smoking a cigarette in his girlfriend’s backyard, in Salisbury, Maryland, Travis Green noticed Marcus Smiley, Petitioner, between five and seven feet away, “looking crazy and everything”, sitting atop the steps of the adjacent house. Within moments, when Green was about to leave, Smiley asked him, “did [you] see where he went?”, to which Green did not reply. When Green was about to enter his truck, Smiley fired the first shot at him, at close range. After Green attempted to escape by sliding across the front seat of the truck and fleeing, Smiley gave chase while shooting at Green, striking him in his right arm, abdomen and thigh.

Though out of ammunition, “[Smiley] kept clicking the gun, you know, it wasn’t no more bullets left in it”, according to ¹⁷¹ Green, who asked, “what are you still trying to shoot me for, what is this about, money?” Smiley, though, did not answer and “just took off after” the incident. Green was flown to Shock Trauma for treatment, where two days later Special Agent Matthew Beccio of the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives presented him with a photographic array created by the Wicomico County Bureau of Investigation. The photo array contained six photographs, including that of Smiley, created from digital images cached in an electronic database of those who “had the same physical appearance, facial appearance as [Smiley]”. The six photographs had been arranged in two rows of three, with Smiley’s photograph located in position five.

Green selected Smiley’s photograph in “approximately 30 or so seconds”. At the subsequent hearing, in the Wicomico County Circuit Court, during which the array was scrutinized by Judge Newton Jackson, III, Judge Jackson noted that four of the photographs in the array were “slightly elongated with respect to the head, neck and what little bit of the torso of each individual can be seen”, but still resembled people “who have that kind of build.” Judge Jackson also described the similarities among the subjects of the photographs: They depict six African-American males, all roughly of the same age, all with close-cropped hair, no corn rows, no dreadlocks, no Afros, all close-cropped hair. Five of the six have receding hairlines. All six have facial hair of the same style....

They all have the same expression on their faces, too, people who aren’t happy having their picture taken, they look rather glum. Nobody is smiling. In other words, picture number five, who apparently is the individual identified, does not wear a different facial expression than the other five photographs. Elmer Duffy, who had been an employee of a painting contractor in Salisbury, Maryland, observed the shooting and related a story consistent with that of Green’s to investigators for the Wicomico Bureau of Investigation.

In an interview ¹⁷² recorded three days after the shooting, Mr. Duffy explained that, on the morning of December 10, he was to paint the house next door to Green’s girlfriend’s, when, as he walked up, he immediately recognized Smiley, with whom he had played basketball “way back in the '80s”. 1 While inside the house, Mr. Duffy raised the blinds to “see what [Smiley] be doing”. Mr. Duffy told the investigators the same story as that given by Green: Smiley charged at Green as Green approached his truck; Smiley shot at and chased Green; and Smiley fled after the incident. The morning after Mr. Duffy’s interview, Smiley made two telephone calls from the Wicomico County Detention Center, which were recorded by the Detention Center as part of its regular practice. In the two calls, one of which was to his mother and the other to an unidentified female, Smiley stated that he knew Mr. Duffy would testify against him, which he wanted to prevent; in the first conversation with his mother, Smiley asked that his nephew, Keith “Heathcliff’ Parker, 2 get Mr. Duffy “out of the picture”: [SMILEY]: That’s crazy, [M]om.

But let — let Heathcliff— Heathcliff and Kev and them know that the boy who lives across the street from Kevin/ 3 - 1 Elmer Duffy, was a witness. He — he told people he seen me standing outside and he seen me running with the gun and all that stuff. ¹⁷³ Elmer — Elmer Duffy, the boy that lives across the street from Kevin, [M]om. The boy that lives across the street from Kev. * Of You see that boy Elmer, get him out of the picture. You know, I don’t want that stuff.

I ain’t trying to go out like that, [M]om. [SMILEY]: And Kevin, I’ll take him — I’ll see him Sunday, man. [SMILEY’S MOTHER]: All right. [SMILEY]: Make sure he take care of everything, [M]om, what I’m talking about. You know what I’m talking about— [SMILEY’S MOTHER]: All right. In the second telephone call, Smiley tells the unidentified female to tell “Heathcliff’ to “make sure that [Mr. Duffy] don’t ... come to court”: [SMILEY]: ... I think Heathcliffs number is 359-1366.

Take that number down, too. (443) 359-1366. MS. SPEAKER: Okay. [SMILEY]: Okay.

And tell him that I said, man, make sure that [Mr. Duffy] don’t — he don’t come to court, man. MS. SPEAKER: Okay. [SMILEY]: And make sure they don’t — do you know what I mean? MS.

SPEAKER: Yeah. Two months after Smiley’s telephone calls, Mr. Duffy was murdered, for which Keith “Heathcliff’ Parker was indicted. With respect to the incident with Green, Smiley was charged in a seventeen count indictment with attempted first degree murder, attempted second degree murder, four counts of first degree assault, four counts of second degree assault, four counts of reckless endangerment, wearing, carrying or ¹⁷⁴ transporting a handgun, use of a firearm in the commission of a felony and possession of a firearm after having been previously convicted of a felony. A motions hearing was held later before Judge Jackson to address, inter alia, Smiley’s motion to suppress Green’s identification.

Smiley argued that the identification was blighted by an impermissibly suggestive photo array as a result of the elongated appearance of the other men in the four photographs. Smiley presented Dr. John C. Brigham, who had testified as an expert in the field of eyewitness identification, who opined that, “people presumably would be unlikely” to pick a distorted image. Judge Jackson, however, did not find the array to be impermissibly suggestive in stating, “it’s not a perfect photographic array, but it’s an adequate photographic array for purposes of making an identification without impermissibly suggesting to the viewer which picture to pick out.” After Mr. Duffy’s murder, the State noted its intent to introduce at trial Mr. Duffy’s recorded statement to investigators, under Section 10-901 of the Courts and Judicial Proceedings Article of the Maryland Code (1974, 2006 Repl. Vol., 2012 Supp.) 4 and Maryland Rule 5-804(b) (2012), 5 as a result of ¹⁷⁵ Smiley’s alleged procurement of Mr. Duffy’s death.

The State’s notice included a statement that Parker had been charged for Mr. Duffy’s murder. The defense objected, although acknowledged that Parker had been charged for the murder. At the pretrial hearing before Judge Leah J. Seaton of the Circuit Court for Wicomico County, an inmate testified that, upon hearing of Mr. Duffy’s death, Smiley was relieved that Mr. Duffy would not testify at trial and was “jumping up and down” in excitement: [STATE’S ATTORNEY]: Tell Judge Seaton what the defendant said. ¹⁷⁶ [INMATE]: It was just like, it was in regards to the fact that [Mr. Duffy] was, I guess he was an eyewitness or something to whatever he had done or whatever, and I guess he was just more or less relieved that person was ... the fact that that person wouldn’t be there to testify against him. [STATE’S ATTORNEY]: Okay. What, if any, actions on the defendant’s part did you observe? [INMATE]: At first, he was like he, it was like, it was like totally, I guess it was like disbelief, and then it was like excitement, and I guess he went through a lot of different emotions. [STATE’S ATTORNEY]: How did he express excitement? [INMATE]: One time, it was like he was, I guess he was just excited, I guess, like happy. [STATE’S ATTORNEY]: What was he doing to show that? [INMATE]: I guess he was like, he was jumping up and down like he was happy or something.

During the hearing before Judge Seaton, the inmate also testified that Smiley had told him that Parker was involved with Mr. Duffy’s murder: [SMILEY’S COUNSEL]: Do you remember that [the investigating officer] told you that the police thought that Keith Parker murdered Mr. Duffy and that Mr. Keith Parker’s nickname was Heathcliff? [INMATE]: Yeah, after we got talking more about the whole situation after. [SMILEY’S COUNSEL]: Well, he told you. You didn’t tell him? [INMATE]: No, I told him — I told him because, because when we were back in there — when we were back in the cell, he was saying something about his nephew, Heathcliff. I wanted to know who Heathcliff was and not unless if he told me— Judge Seaton, during the hearing, also took judicial notice of the case file for the murder charge filed against Parker, ¹⁷⁷ case number K12-0587, in the Circuit Court for Wicomico County, Maryland, which included Parker’s indictment for the first degree murder of Mr. Duffy. Judge Seaton found that Smiley had specifically requested that Parker prevent Mr. Duffy from appearing at trial, that the inmate’s testimony regarding Smiley’s statement and reaction was credible and that Parker took part in Mr. Duffy’s murder.

Judge Seaton then found, by clear and convincing evidence, that Smiley “engaged in, directed or conspired to commit the wrongdoing that procured the unavailability of Mr. Duffy” and, therefore, concluded that Mr. Duffy’s statement about seeing Smiley shoot Green was admissible at trial: [THE COURT]: The State’s Notice of Intent to submit the recorded statement of Elmer Duffy was opposed by the defendant. Section 10-901 of Courts and Judicial Proceedings governs the admissibility of the recorded statement. The Court has considered the State’s notice, the defendant’s opposition and supplemental filing and oral arguments, admitted exhibits, the testimony of [the inmate], and the recorded statement and transcript of that conversation which actually reflected the conversation. Under [Section] 10-901, the Court finds by clear and convincing evidence that the defendant engaged in, directed or conspired to commit the wrongdoing that procured the unavailability of Mr. Duffy.

Mr. Duffy was murdered. Keith Parker has been charged with that murder. The Court finds that [the inmate’s] testimony about the defendant’s statements and his reaction to the news of Mr. Duffy’s murder to be credible. In addition, the Court notes that in the conversation with his mother, the defendant wanted to, quote “get Mr. Duffy out of the picture,” end quote.

He also tells — well, the quote part is “out of the picture”. He also tells his mother at the end of the conversation quote, “make sure they take care of everything, Mom. I’m talking about, you know what I’m talking about.” period end quote. The Court takes judicial notice of the case file in this court, Case Number K12-0587 in which the murder charges ¹⁷⁸ are pending against Mr. Parker.

It is not persuaded by counsel’s argument that the State has not proven the wrongdoing, nor that the State has failed by clear and convincing evidence to establish that the defendant engaged in, directed or conspired to commit the wrongdoing that procured the unavailability of Mr. Duffy. During Smiley’s trial, Green testified and identified Smiley as the individual who had assaulted him; Mr. Duffy’s recorded statement, as well as its transcript, also were admitted. Smiley was convicted of attempted first degree murder, use of a firearm in the commission of a crime of violence, three counts of reckless endangerment and the possession of a regulated firearm after having been previously convicted of a crime of violence; he was sentenced to life imprisonment plus ten years. In a reported opinion, the Court of Special Appeals affirmed the admission of both Green’s extrajudicial identification and Mr. Duffy’s statement.

Smiley v. State, 216 Md.App. 1, 28, 37 , 84 A.3d 190, 205, 211 (2014). Our intermediate appellate court concluded that it was not clear error for Judge Jackson to find that the photo array was not impermissibly suggestive and that he was within his discretion to admit the identification into evidence at trial. Id. at 37 , 84 A.3d at 211 . The court also held that it was not clear error for Judge Seaton to find that Smiley was involved in procuring Mr. Duffy’s unavailability, based upon the facts she found connecting Smiley to the murder: 1) that [Smiley] ardently and insistently sent word to his nephew to get rid of Elmer Duffy, 2) that Elmer Duffy was subsequently murdered, 3) that [Smiley] jubilantly reacted to the news of the murder, and 4) that nephew Heathcliff Parker was, indeed, then charged with that murder.

Id. at 24 , 84 A.3d at 203 . 6 We granted Smiley’s Petition for Certiorari to consider the following questions, which we have renumbered: ¹⁷⁹ 1. Did the lower court err in failing to suppress an extrajudicial identification of Mr. Smiley where his photograph was one of only two in a photographic array which was not visibly altered and his clothing matched the shooter’s described attire? 2. Should Maryland adopt, either as a matter of State constitutional or evidentiary law, a standard for evaluating the admissibility of eyewitness identifications which better reflects present scientific knowledge concerning eyewitness memory? 3. Did the trial court err in admitting the statement of an unavailable witness after finding that Mr. Smiley procured the witness’s unavailability at trial based on a proffer that Mr. Smiley’s nephew was charged with murdering that witness?

Smiley v. State, 437 Md. 637 , 89 A.3d 1104 (2014). We shall affirm and shall hold that the elongation of the face and torso of four of the photographs in the photo array did not render the array impermissibly suggestive. We shall also decline to adopt the theories and methodologies promulgated by the New Jersey Supreme Court in State v. Henderson, 208 N.J. 208 , 27 A.3d 872 (2011), to review whether extrajudicial identifications are suggestive, because we are satisfied with the two-part test set out in (Gregory) Jones v. State, 310 Md. 569, 577 , 530 A.2d 743, 747 (1987), cert. granted, judgment vacated on other grounds, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 ¹⁸⁰ L.Ed.2d 916 (1988), conviction aff'd, sentence vacated and remanded, 314 Md. 111 , 549 A.2d 17 (1988), for determining the admissibility of an extrajudicial eyewitness identification. We, finally, shall hold pursuant to Section 10-901 of the Courts and Judicial Proceedings Article of the Maryland Code, and Maryland Rule 5-804(b)(5)(B), that the trial court did not abuse its discretion in admitting the statement of Mr. Duffy.

Smiley, with respect to the first question before us, argues, as he did before the trial court and the Court of Special Appeals, that the photo array was impermissibly suggestive, because of the elongation of the head and torso in four of the photographs, none of which was his. The State asserts, with respect to the first question, as it did before the trial court and the Court of Special Appeals, that the elongation did not create an impermissibly suggestive photo array. The admissibility of an extrajudicial identification is determined in a two-step inquiry. (Gregory) Jones, 310 Md. at 577 , 530 A.2d at 747 . “The first question is whether the identification procedure was impermissibly suggestive.” Id.

If the procedure is not impermissibly suggestive, then the inquiry ends. If, however, the procedure is determined to be impermissibly suggestive, then the second step is triggered, and the court must determine “whether, under the totality of circumstances, the identification was reliable.” Id. If a prima facie showing is made that the identification was impermissibly suggestive, then the burden shifts to the State to show, under a totality of the circumstances, that it was reliable. (Kevin) Jones v. State, 395 Md. 97, 111 , 909 A.2d 650, 658 (2006).

Suggestiveness can arise during the presentation of a photo array when the manner itself of presenting the array to the witness or the makeup of the array indicates which photograph the witness should identify. See (Gregory) Jones, 310 Md. at 577 , 530 A.2d at 747 ; see also Conyers v. State, 115 Md.App. 114, 121 , 691 A.2d 802, 806 (1997), cert. 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). ¹⁸¹ In a case in which we concluded that a photo array was not impermissibly suggestive, we explained that a photo array “ ‘to be fair need not be composed of clones.’ ” Bailey v. State, 303 Md. 650, 663 , 496 A.2d 665, 671 (1985), quoting Webster v. State, 299 Md. 581, 620 , 474 A.2d 1305, 1325 (1984). In that case, Bailey alleged that the photo array shown to the victim was impermissibly suggestive, because the men in four of the six photographs did not resemble him. We concluded that the array was not impermissibly suggestive, because the mug shots that comprised the array reflected a number of similarities, to include: each man was photographed from the same camera angle; each man had the same photo card around his neck, the text of which had been blacked out; each individual was a young black male; each individual had close-cropped hair; several of the men had slight mustaches, though none was bearded; the men wore different styles of casual shirts; and none of the individuals had any unusual features.

In a subsequent case, Evans v. State, 304 Md. 487 , 499 A.2d 1261 (1985), we held that the identification procedure was impermissibly suggestive when only a single photograph was presented to the witness, under circumstances that were not exigent. In Evans , the prosecutor, during a grand jury proceeding, presented a single photograph of the suspect, Evans, to the witness: “Q. PROSECUTING ATTORNEY: As you were playing games with [the accomplice] in the bar, a fellow by the name of Shorty comes in, calls [the accomplice], and [the accomplice] and Shorty go outside, is that right? “A. [WITNESS]: Right. “Q. PROSECUTING ATTORNEY: Now, I show you a Baltimore County Police photograph No. 126237. It is a mug shot, and next to that number are the numbers 6/08/83, indicating the date. Is this the Shorty that you saw? “A. [WITNESS]: That is him. “Q. PROSECUTING ATTORNEY: For the record, that is a photograph of Vernon Evans, Junior.” ¹⁸² Id. at 497-98 , 499 A.2d at 1266 .

The single photograph procedure, we stated, was impermissibly suggestive “under the circumstances shown by [that] record”, because “[t]here were no exigent circumstances justifying the presentation of a single photograph rather than an appropriate array.” Id. at 498 , 499 A.2d at 1267 . In the instant matter, Agent Beccio presented Green with an array containing six photographs, which; as Judge Jackson found, portrayed six African-American males of roughly the same age with the same hairstyle, the same facial hair and with the same facial expression. With respect to elongation, Judge Jackson also found that, while the pictures were not perfectly identical and that four of the faces “appeared] to be slightly elongated”, they were not “cartoonish” and, even with the elongation, two of those four photographs depicted individuals “who have that kind of build.” None of the four elongated photographs included that of Smiley, who was depicted in one of the two remaining photographs. Faced with a similar, albeit converse, situation of elongation of a photograph, the Virginia intermediate appellate court reasoned, in Smith v. Commonwealth, 61 Va.App. 112 , 733 S.E.2d 683, 688 (2012), that the elongation of only the suspect’s photograph, but not those of the other individuals in the array, was not impermissibly suggestive.

The court opined that an elongated face did not, intrinsically, “suggest to the victim that the long-faced person was one of the assailants” and, moreover, there was no implication at any point in the investigation that a long-faced man was the assailant. Id. at 688. Here, the elongation of the four photographs, other than that of Smiley’s photograph, did not suggest to Green that Smiley was the perpetrator. The dissimilarity related to the elongation of the four photographs and those depicting Smiley and another man did not render the photo array impermissibly suggestive.

As to the second question, Smiley urges, as he did in the lower courts, that Judge Jackson, in addressing whether the ¹⁸³ array was suggestive, should have adopted the theories and methodologies suggested by the New Jersey Supreme Court in State v. Henderson, 208 N.J. 208 , 27 A.3d 872 (2011). 7 The State demurs, asserting that “Maryland trial courts already consider” the methodologies suggested by Henderson , because “the suppression court screens for suggestiveness — and [whether] the extra-judicial identification process was ‘unnecessarily (impermissibly) suggestive’ ”, quoting Webster, 299 Md. at 607 , 474 A.2d at 1319 . The State further asserts that we should not adopt the Henderson theories and methodologies, because “the studies referred to in Henderson have limited value” and, before adoption, any evidence supporting them “should be developed at the trial level”. In Henderson , a special master was appointed by the New Jersey Supreme Court “to evaluate scientific and other evidence about eyewitness identifications.” 208 N.J. 208 , 27 A.3d at 877 . The special master heard testimony from individuals who were qualified as experts in eyewitness identification and received various