Traynham v. State

Oswald Traynham v. State of Maryland, No. 2687, September Term, 2018, Opinion by Adkins, J. EVIDENCE – HEARSAY – PRIOR IDENTIFICATION EXCEPTION – PHOTO ARRAY PROCEDURES Maryland Rule 5-802.1(c) creates an exception to the rule against hearsay for statements of identification of a person made after perceiving the person. Because the witness’s statements during a photo array procedure were not positive identifications, they are hearsay. CRIMINAL LAW – HARMLESS AND REVERSIBLE ERROR – HEARSAY Erroneous admission of hearsay evidence was not harmless. DUE PROCESS – IDENTIFICATION – IMPROPER POLICE INFLUENCE When an identification is infected by improper police influence, the evidence must be screened for reliability.

An improper conversation prior to trial between the police and the victim tainted future identification of the defendant by the victim. A source independent of the tainted conversation, however, rendered the in-court identification sufficiently reliable for admission. Circuit Court for Baltimore City Case No. 118137008 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2687 September Term, 2018 ______________________________________ OSWALD TRAYNHAM v. STATE OF MARYLAND ______________________________________ Fader, C.J., Shaw Geter, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Adkins, Sally D., J. ______________________________________ Filed: December 20, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-12-20 15:48-05:00 Suzanne C. Johnson, Clerk “[R]eliability is the linchpin in determining the admissibility of identification testimony . . . .” Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

Karen Lawson was robbed at gunpoint outside of her home. Days later, she looked at a photo array of possible suspects. On her first look at Photo No. 4 she commented “[b]eard yes,” and on her second look said “[d]on’t think so—not skinny enough.” Oswald Traynham was the individual in Photo No. 4, and he was subsequently found guilty of armed robbery, carrying a concealed weapon, and other crimes. During his trial, the court admitted into evidence the photo array “identification.” We are asked to decide whether the trial court erred by admitting the photo array—which means to decide if the array, which is hearsay, falls under any exception to the rule against hearsay.

Because we hold that the photo array procedure did not constitute a prior statement of identification under Maryland Rule 5-802.1(c), and satisfied no other hearsay exception, we reverse Traynham’s convictions, and remand for a new trial. BACKGROUND FACTS On the evening of February 14, 2018, Karen Lawson had just parked her car on Elmora Avenue when a man approached her asking for directions. He grabbed her, put a gun to her side, took her bags, and ran away. Lawson’s cash, credit cards, gift cards, and car keys were in her stolen bag.

Baltimore City Police Officer Gary Doyle responded to the scene. Lawson described her assailant to Doyle as a “black male with a bushy beard, approximately 5’10”, 5’11” in height, small to medium build wearing a black cap and all black clothing.” A magazine from a BB gun was recovered at the scene. Detective Calvin Moss was the lead detective assigned to the case. The day after the robbery, Lawson told him there were charges on her credit card made after she had been robbed.

Moss went to the various locations where Lawson’s cards had been used (a 7-11 and two gas stations) and obtained surveillance video for the corresponding times. The footage from all three locations showed the same men, and a red Ford Explorer. Moss recorded the surveillance video from one of the locations (a BP gas station) with his phone. Moss showed that BP gas station video on his phone to Lawson; she positively identified one of the men in the video as her assailant.

Moss made flyers based on still photographs of two of the subjects from the surveillance video and distributed them to officers in the area. Officer Gary Klado received this flyer, which contained not only suspect photographs, but also a vehicle description of the Explorer. On February 16, he observed the Explorer on Harford Road. Klado approached the vehicle, photographed it, and obtained the driver’s license.

The driver was Traynham. After Klado relayed this information to Moss, Moss created a photo array that included Traynham’s photo. Detective Steve Mahan conducted the photo array procedure with Lawson.1 Moss and Mahan believe Lawson positively identified Traynham as her assailant in the procedure. 1 A photo array identification procedure occurs when “an array of photographs, including a photograph of a suspect and additional photographs of other persons not suspected of the offense, is displayed to an eyewitness in hard copy form or by computer for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator.” Md. Code (2003, 2018 Repl. Vol.), § 3-506.1(a)(8) of the Public Safety Article. -2- Just a few hours after the photo array was conducted, Moss arrested Traynham.

He searched Traynham’s apartment, and found Lawson’s purse, bags, and some other items. Traynham claimed that they all had been given to him by someone else. Moss returned Lawson’s property to her and, while doing so, had a conversation with Lawson and her husband about the case and Traynham. At trial, the State introduced the photo array over Traynham’s objection.

Lawson testified about the photo array and then, without objection, identified Traynham in court. A Baltimore City jury convicted Traynham of armed robbery, robbery, theft of property with a value of $100 – $1500, and carrying a concealed weapon. He was sentenced to ten- years’ incarceration for the armed robbery conviction and a concurrent three years for the concealed weapon conviction. Traynham presents us with one question: whether the trial court erred in admitting evidence of identification.

DISCUSSION Photo Array & Testimony Ten days after the robbery, Mahan conducted the photo array. Lawson was shown the array twice, according to Baltimore Police Department (“BPD”) procedure. Mahan made notes on the Photographic Array Action Form (the “Array Form”), and recorded what Lawson said as she reviewed the array. Lawson testified that the comments written by Mahan accurately reflected what she said to him at the time she reviewed the array.

Regarding Photo No. 4—Traynham’s photo—Mahan wrote that Lawson commented “[b]eard yes” on the first viewing, and “[d]on’t think so—not skinny enough” on the second -3- pass through. Moss and Mahan viewed these comments as identifying Traynham. Traynham was arrested approximately three hours after the array procedure was conducted. During trial, over Traynham’s objections, the photo array was admitted into evidence, as well as Lawson’s testimony regarding the array: [STATE] Q: And, Ms. Lawson, did you also have occasion to view a series of photographs in relation to your robbery? [LAWSON] A: Yes, I did. *** Q: And were you able to pick out the person that robbed you from those photos?

A: From those ‘photos, I did choose a person that— *** Q: Ms. Lawson, which photo did you choose? [TRAYNHAM]: Objection. [THE COURT]: Overruled. A: I chose Photo No. 4. *** Q: And why did you choose Photo No. 4? A: So looking at Photo No. 4, the beard, the color, the beard was what, you know, I mainly saw that night. That beard stuck out.

Traynham argues that the trial court erred in admitting the photo array because Lawson’s statements during the procedure were not statements of “identification of a -4- person.” Consequently, he contends, the trial court also erred in allowing Lawson’s above testimony, in which she states she “chose a person,” as it is hearsay. The State maintains that Lawson positively identified Traynham during the photo array, and therefore the court properly admitted the photo array and Lawson’s testimony about it.2 Fundamental rules of evidence prevent the admission of out-of-court statements as inadmissible hearsay. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Maryland Rule 5-801(c). Hearsay is not admissible, except as provided by Maryland Rules, or by applicable statute or constitutional provision. Md. Rule 5-802.

A witness’s prior “statement of identification,” is an exception to the rule against hearsay: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross- examination concerning the statement are not excluded by the hearsay rule: *** (c) A statement that is one of identification of a person made after perceiving the person[.] Md. Rule 5-802.1(c). Photo array procedures conducted prior to trial are admitted into evidence under Rule 5-802.1(c) as statements of identification. See, e.g., Muhammad v. State, 177 Md. App. 188, 292 (2007) (Rule 5-802.1(c) “deals with the pinpointing of a particular individual, such as picking someone out of a line-up or photo array”). 2 We note that Traynham is not making a due process challenge to the photo array procedure. -5- Evidentiary rulings are typically reviewed for abuse of discretion. Maryland courts, however, take a two-part approach in reviewing hearsay rulings. “[T]he trial court’s ultimate determination of whether particular evidence is hearsay or whether it is admissible under a hearsay exception is owed no deference on appeal, but the factual findings underpinning this legal conclusion necessitate a more deferential standard of review.” Gordon v. State, 431 Md. 527, 538 (2013).

Here, there is no dispute that the photo array procedure, and in-court testimony characterizing it, are hearsay, therefore we will review their admissions without deference. The State contends that “Lawson made plain that she believed Traynham’s photo showed a heavier version of her assailant” and that Traynham “was entitled to attack the reliability of that identification at trial” but was not entitled to keep the identification out altogether. Although the reliability of a witness’s testimony is rightfully the province of the jury, if there was no positive identification during the photo array, then the State was not entitled to get the identification in, as it does not satisfy any exception to the hearsay rule. The State argues the issue is similar to that in State v. Wood, 196 Md. App. 146, 156 (2010), when the defense complained “that the original photographic identifications were made by [witnesses] with less than absolute certainty.” We found those were “good arguments before the ultimate fact finder, but they have nothing to do with constitutional suppression.” Id.

This case differs from Wood. First, Wood invoked constitutional identification law, claiming the trial judge should have suppressed identifications because they were unreliable. The Wood court notes constitutional law “is something quite distinct -6- from evidentiary law.” Id. at 153 . Here, the issue is purely evidentiary, whether the supposed identification satisfies Md. Rule 5-802.1(c).

The question in Wood was one of reliability—either the witnesses were not in a good position to get a good view of the accused, or they made their identifications with less than absolute certainty. Here the question is not of reliability but requires us to focus on the threshold issue of identification—did the witness even make one? Mahan wrote down Lawson’s comments for each photo, separately for the look- throughs. Lawson commented “[b]eard yes” to Photo No. 4 on the first look-through.

On her second look at the array the comments noted were: Photo No. 1: “don’t really look like him.” Photo No. 2: “no.” Photo No. 3: “not really.” Photo No. 4: “don’t think so—not skinny enough.” Photo No. 5: “no.” Photo No. 6: “don’t think so.” The State contends that Lawson made an identification that satisfies the criteria of Rule 5- 802.1(c)—but we are not persuaded. On this second, final look-through, all of Lawson’s comments were non-identifications. We do not agree that the words “[b]eard yes” can overcome her subsequent statement of “don’t think so—not skinny enough.” The State asserts Lawson’s words “not skinny enough” bolsters the “identification” in the end, because “[h]is photo in the array from several years prior showed him looking heavier, so Lawson was correct when she noticed a discernable difference in Traynham as -7- he was depicted in Photo No. 4, as he appeared when he robbed her . . . .” We see two weaknesses with the State’s contention. First, one of the instructions to witnesses on the Array Form reads, “[t]he individuals you view may not appear exactly as they did on the date of the incident.” Lawson initialed next to that instruction, signaling she understood it.

Realizing that the appearance might differ slightly from the time of the robbery, Lawson still commented “[d]on’t think so—not skinny enough.” Most importantly, this comment cannot “bolster the identification in the end” if there was no positive identification to bolster. There is no bright-line test for what constitutes a positive identification when the witness’s statements are less than a “yes, that is the assailant.” An examination of photo array identifications admitted at trial, however, does reveal some significant commonalities—chief among them being that witnesses write their identifications, usually directly on the photo card. See Brown v. State, 169 Md. App. 442, 461 (2006) (the witness wrote “. . . the person above, the one who shot me in the leg” on the back of the photo array); Parker v. State, 129 Md. App. 360, 397 (1999) (witness signed the photo array card above the defendant’s picture and wrote “I [witness] saw the young man I just picked out comit[t] the crime . . .”), rev’d on other grounds, 365 Md. 299 (2001). Law enforcement agencies in Maryland are required to adopt the Maryland Police Training and Standards Commission’s Eyewitness Identification Model Policy (“Maryland Police Identification Policy”) or adopt and implement a similar policy.

Md. Code (2003, 2011 Repl. Vol.) § 3-506(b) of the Public Safety Article. The Maryland Police Identification Policy is based on a guide for law enforcement agencies to utilize in -8- obtaining accurate eyewitness evidence published by the United States Department of Justice (“DOJ”), the U.S. Dept. of Justice, Eyewitness Evidence: A Guide for Law Enforcement (1999) (“DOJ Standards”). Maryland Police Identification Policy at 74.

DOJ Standards states that