Turner v. State

CHARLES E. MOYLAN, JR., Judge, retired, specially assigned. The appellant, Lance Michael Turner, was convicted by a Washington County jury, presided over by Judge Frederick C. Wright, III, of reckless endangerment. On this appeal, he raises the single contention that Judge Wright erroneously failed to suppress evidence of an extrajudicial identification made of him by a State’s witness. The contention evokes nostalgic memories of a period between 30 and 40 years ago when the constitutional law bearing on extrajudicial identification was at the front and center of legal consciousness.

The juridical celebrity of the subject first rose and then fell in the decade between June of 1967 and June of 1977. It was in that time a regular centerpiece at all ¹⁷⁷ continuing legal education seminars. As will be seen as our analysis unfolds, however, that once vital concern has more recently been reduced to little more than a sideshow, now a matter far more for jury argument than for constitutional exclusion. A Stupid Fight on the Parking Lot of a Bar Driven by nothing more rational than an excess of testosterone mixed with an excess of alcohol, two young men got in a fight over nothing with three other young men on the early morning of September 1, 2006, on the parking lot of Barefoot Bernie’s Bar in Hagerstown.

Bryan Sprankle and Brian Aleshire had both been celebrating their birthdays with a group of friends at Barefoot Bernie’s. The two of them had been drinking throughout the course of the evening and stayed at the bar until closing time. As they adjourned their celebration and poured out onto the parking lot, they crossed the path of the appellant and two other young men. A casus belli arose as the threesome “spoke” to Brian Aleshire.

He, in turn, “spoke” back. The nature of the conversation was presumably belligerent, for it provoked an immediate fight between the two camps. In the course of the melee, the appellant struck Bryan Sprankle several times over the head with a golf club. That was the corpus delicti of reckless endangerment.

Sprankle himself never saw the person on the other end of the club. For the State, the critical challenge was the identification of the appellant as the wielder of the golf club. The Extrajudicial Show-Up Officer Andrew Lewis arrived at the fight scene at one a.m. He was dispatched there for “some type of assault or fight involving a golf club.” He found Bryan Sprankle bleeding profusely from the head.

He learned that Brian Aleshire had been assaulted as well. Both Sprankle and Aleshire were transported by ambulance to the Washington County Hospital. Officer Lewis then took from the scene to the police station the appellant, not yet necessarily as a suspect but as a “person ¹⁷⁸ [they] needed to talk to about the incident.” It was while the appellant was at the police station that the one-on-one show-up took place. Meanwhile, back at the hospital, Aleshire was being arrested for the malicious destruction of property and taken into custody.

Officer Lewis was sent to the hospital to pick him up and bring him to the police station. Aleshire was intoxicated. During the ride back to the station, Officer Lewis told Aleshire that the police “had a subject at the building that was possibly involved in the altercation.” When the two of them then pulled up in front of the station, the appellant was “standing on the east side ... next to Officer Duffey.” Officer Lewis then asked Aleshire “if the subject standing beside Officer Duffey was involved in the fight.” Aleshire insisted, “Yes. He was the one with the golf club.” Officer Lewis asked Aleshire if he was “sure about this.” Aleshire insisted that he was “a hundred per cent sure.” At the pretrial suppression hearing, Officer Lewis testified and there was argument from both counsel.

Judge Wright ruled that the identification was admissible. This appeal timely followed. The Extrajudicial Show-Up Beginning with the promulgation of the Wade-Gilbert-Stovall trilogy on June 12, 1967, the constitutionality of extrajudicial identifications shot into prominence and then dominated the center stage until its run ended ten years and four days later with the promulgation of Manson v. Brathwaite, 432 U.S. 98 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 . Early in the run, following the lead of United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967), and relying on an accused’s Sixth Amendment right to counsel at any critical stage, the exclusion of identification evidence as a matter of constitutional law was in high vogue.

That exclusionary trend, however, ebbed significantly with the holding in Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972), that a suspect placed in a pre-indictment, as opposed to a post-indictment, line-up did not yet enjoy the protection of ¹⁷⁹ the Sixth Amendment. Whatever little wind still propelled the exclusionary sails after Kirby effectively drifted away with the holding in United States v. Ash, 413 U.S. 300 , 93 S.Ct. 2568 , 37 L.Ed.2d 619 (1973), that even a post-indictment exhibition of a photograph of a suspect, either in a group picture or as part of an array of individual photographs was, unlike standing the suspect in a live line-up, not a critical stage. Under the combined impact of Kirby and Ash, the post-indictment line-up essentially disappeared from the world of criminal investigation, and with it any significant exclusion of identification evidence based on the Sixth Amendment’s right to counsel. The once familiar line-up parade of stage and screen has been retired to the Smithsonian.

Creative law enforcement procedures effectively finessed the Sixth Amendment. Whatever vitality the Wade-Gilbert-Stovall trilogy still retained after 1973 was by virtue of its third member, Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). Unlike Wade and Gilbert, Stovall was grounded in the due process clause of the Fourteenth Amendment rather than in the right to counsel of the Sixth Amendment. In one sense, a due process claim under Stovall enjoyed much broader coverage than a right to counsel claim under Wade and Gilbert because a due process claim is not limited to post-indictment procedures and does not require that the procedure be considered a critical stage.

On the other hand, whereas a Sixth Amendment violation results in virtually automatic exclusion of the identification, a due process violation only occasionally does so. Instead of exclusion, an arguable due process violation generally calls for a balancing of competing factors under a “totality of circumstances” approach, and this is, far more often than not, a weighing function for a jury rather than an exclusionary function for a judge. In his opinion in Webster v. State., 299 Md. 581, 602 , 474 A.2d 1305 (1984), Judge Orth highlighted the difference in the constitutional lenses that can be trained upon an identification procedure. We emphasize what is obvious from the Supreme Court’s opinions.

It has fashioned two sets of exclusionary rules ¹⁸⁰ with respect to the admission of evidence tainted by reason of having as its source a confrontation which is constitutionally infirm. One set concerns those confrontations at which the right to counsel was not satisfied. The other applies to those confrontations which infringed the right to due process. Although the factors to be considered in applying the rules are similar, the two sets call for different standards and are separate and distinct.

(Emphasis supplied). In Stovall v. Denno itself, the Supreme Court did not hold that the questionable identification evidence there should be suppressed. It rather affirmed the legitimacy of that one-on-one show-up in a hospital room on the ground that it, albeit unquestionably suggestive, was necessary and, therefore, not impermissible. By its very nature, of course, a one-on-one show-up is suggestive, just as 99 out of every 100 judicial or in-court identifications are suggestive.

(It is always a good bet that the person the witness is being asked to identify is the guy sitting at the trial table who is not dressed like a lawyer.) A jury, however, is perfectly capable of weighing the pluses and minuses of such an identification. That is why mere suggestiveness does not call for exclusion. Stovall pointed out that it is not a due process violation per se that an identification procedure is suggestive. It must be not only suggestive, but impermissibly suggestive.

Many self-evidently suggestive one-on-one show-ups shortly after a crime has occurred are deemed to be permissibly suggestive, and therefore unoffending, because of the exigent need to take quick action before the trail goes cold. See Billinger v. State, 9 Md.App. 628, 636-37 , 267 A.2d 275 , cert. denied, 259 Md. 729 (1970). Within a year after Stovall v. Denno, moreover, the due process test was fine-tuned still further by Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968). Simmons made clear that evidence will not be excluded unless the identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 U.S. at 384 , 88 S.Ct. 967 (emphasis ¹⁸¹ supplied).

With Simmons the focus turned to the ultimate reliability of the identification in question. If the identification is reliable, it, by definition, is not a misidentification. Under the due process clause, moreover, the law does not use an exclusionary sanction to regulate police procedures. The focus is on the evidence itself in terms of its ultimate reliability.

If the evidence is reliable notwithstanding improper antecedent procedures, it will not be suppressed under the due process clause. What matters is the trustworthiness of the evidence, not the propriety of the governmental conduct that produced it. The unmistakable triumph of evidentiary reliability as the dispositive criterion became evident in Neil v. Biggers, 409 U.S. 188 , 98 S.Ct. 375 , 34 L.Ed.2d 401 (1972). That case stated the due process test of admissibility as one of “whether under ‘the totality of the circumstances’ the evidence was reliable even though the confrontation procedure was suggestive.” 409 U.S. at 199 , 93 S.Ct. 375 .

In Biggers, a federal District Court ruled, at a habeas corpus hearing, that an identification by a rape victim at a show-up had been so suggestive as to violate due process and that the identification had to be suppressed. The United States Court of Appeals for the Sixth Circuit agreed. 448 F.2d 91 (1971). The Supreme Court reversed, holding that the critical criterion is not suggestiveness but ultimate reliability. Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification.

It is, first of all, apparent that the primary evil to be avoided is “a very substantial likelihood of irreparable misidentification. ” 409 U.S. at 198 , 93 S.Ct. 375 (emphasis supplied). Neil v. Biggers, 409 U.S. at 199 , 93 S.Ct. 375 , then proceeded to set forth the five criteria which, ever since, have been accepted as the measure of the ultimate reliability of an identification. We turn, then, to the central question, whether under the “totality of the circumstances” the identification was reli ¹⁸² able even though the confrontation procedure was suggestive. As indicated by our cases, the facts to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

(Emphasis supplied). After five years of furious activity, see also Foster v. California, 394 U.S. 440 , 89 S.Ct. 1127 , 22 L.Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1 , 90 S.Ct. 1999 , 26 L.Ed.2d 387 (1970); Johnson v. Louisiana, 406 U.S. 356 , 92 S.Ct. 1620 , 32 L.Ed.2d 152 (1972); Moore v. Illinois, 434 U.S. 220 , 98 S.Ct. 458 , 54 L.Ed.2d 424 (1977), the storm brewed in 1967 was dramatically abating. Because the critical show-up in Neil v. Biggers had taken place before the Stovall v. Denno opinion had been filed, however, Manson v. Brathwaite was necessary to place an unmistakable seal of approval on the earlier case and to give the Biggers test unchallenged authoritative legitimacy. If Neil v. Biggers was the handwriting on the wall, Manson v. Brathwaite was “the last hurrah” for heavy reliance on constitutional exclusion, and that was 32 years ago.

In Manson v. Brathwaite, the United States Court of Appeals for the Second Circuit held that evidence of a one-on-one photographic show-up should have been excluded because the viewing of a single photograph had been both suggestive and unnecessary. The Supreme Court reversed the Second Circuit, stating the question before it to be: This case presents the issue as to whether the Due