Wood v. State

CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned). The leitmotif of this opinion is that the unreliability of an extrajudicial identification is not an exclusionary factor. It is rather the case that the reliability of such an identification is an ameliorative factor that precludes exclusion.

Although both items are, to be sure, related in one way or another to the phenomenon of sinking, we must not confuse the lifeboat with the torpedo. The purpose of a reliability inquiry can only ¹⁴⁹ truly be understood when constitutional identification law is viewed in historic perspective. The danger is that zealous advocates, particularly after a generational change, will cherry-pick choice sentences and phrases from the old cases and then misapply them to situations totally foreign to the context that originally gave them life. The Present Case The appellant, Thomas Wood, Jr., was found guilty, on an agreed statement of facts, by Judge Thomas G. Ross, sitting without a jury in the Circuit Court for Queen Anne’s County, on two separate charges of robbery.

On this appeal, he raises the three contentions 1. that the evidence was not legally sufficient to sustain the verdicts; 2. that Judge Ross erroneously failed to suppress three extrajudicial identifications of the appellant; and 3. that Judge Ross erroneously failed to suppress the physical evidence. Legal Sufficiency of the Evidence Contrary to the first contention, the evidence abundantly supported both convictions. A brief summary of it will help to place the other contentions in understandable context. A. Kent Island Robbery An armed holdup was committed at the Kent Island Texaco Station at 400 Thompson Creek Road in Stevensville, Queen Anne’s County, on December 13, 2008, at approximately 2:00 A.M. The lone clerk on duty, Thomas Davidson, described his assailant as an African-American male approximately six feet tall, weighing about 250 pounds, and wearing all black clothing.

The assailant was armed with what appeared to be a black handgun. He demanded money. Mr. Davidson turned over money from both the cash register and the store safe. The robber also took several packs of Newport cigarettes. ¹⁵⁰ At just about that time, James Taylor, a newspaper delivery man, observed a suspect run from the Texaco Station to an SUV (a sport utility vehicle) and drive quickly away from the area.

Surveillance cameras captured a picture of the SUV, which appeared to be a silver Lincoln Aviator. It was parked at the gas pumps during the commission of the robbery. The video camera showed the SUV leaving the scene, headed westbound. Corporal Eric Ferber of the Maryland Transportation Authority Police subsequently retrieved data from the Homeland Security cameras on the William Preston Lane Bridge (the Bay Bridge).

They revealed a Lincoln Aviator SUV heading westbound over the bridge with Maryland tags 961M179 at approximately 2:00 A.M. on December 13. The tags were registered to the appellant, Thomas Wood, Jr., living at 1275 Kitmore Road in Baltimore City. The appellant’s MVA photo showed that he matched the description given by Mr. Davidson. From a photo array, Mr. Davidson was able to pick out the photograph of the appellant as “looking like” the man who robbed him.

A subsequent search of the appellant’s Lincoln Aviator SUV produced a black .177 caliber Marksman air pistol. The agreed statement of facts further recited that Mr. Davidson, after seeing the appellant in person, would have identified him in the courtroom as his assailant. B. Queenstown Robbery The second robbery was committed two weeks later, on December 27, 2008, at the Xtra Mart at 46380 Ocean Highway in Queenstown, Queen Anne’s County. Christine Middleton was the clerk on duty and Michelle Mogavero was also present at shortly after midnight, when an African-American male, approximately six feet tall and weighing “in excess of 200 pounds,” entered the store.

He pointed a black handgun at Ms. Middleton and ordered her to lie on the floor. He went through her purse, from which he removed two ¹⁵¹ checks. He also took cash from the cash register and Newport cigarettes. Both Ms. Middleton and Ms. Mogavero selected a photograph of the appellant from a photo array as “most resembling” the robber.

Both witnesses stated, after seeing the appellant, that they would have positively identified him in court as the robber. As the appellant ordered Ms. Middleton to lie on the floor, moreover, he struck her on the head with the black gun. When a black gun was seized from the appellant’s SUV on January 2, 2009, a single strand of blond hair was recovered from the gun sight. Forensic examination showed that it had come from the head of Ms. Middleton.

The evidence was unquestionably sufficient to sustain both robbery convictions. Reliability: The Right Pew Perhaps But the Wrong Church The appellant’s second contention is that evidence of the extrajudicial photographic identifications of the appellant should have been suppressed because they were unreliable. The appellant’s resort to the reliability/unreliability factor is what gives rise to the major theme of this opinion. If there were a book on the subject of Appellate Game Theory (there is not), this appeal could furnish rich examples for a chapter inevitably entitled “Diversionary Appellate Strategies” or “How to Finesse the Flaw of Immateriality.” If the defense boldly asserts, “The extrajudicial identification was unreliable,” and the State and/or court strongly believes that it was, to the contrary, very reliable, battle will almost reflexively be joined on that narrowly particularized issue.

Lost in the din of battle may be the more pertinent and dispositive question of, “Does it really make any difference, one way or the other?” Obsessed with the factual yin and yang of the microcosm, everyone (including the court) can too easily neglect the threshold of materiality. Far from being inelegant, therefore, it should be the prime directive of appellate inquiry constantly ¹⁵² to ask, “So what?” It is never out of place to question materiality. In making this contention, the appellant boldly asserts that Judge Ross erroneously failed to suppress evidence of three extrajudicial identifications of the appellant. He contends that photographic identifications of him by Thomas Davidson from the Kent Island Texaco Station robbery and by both Christine Middleton and Michelle Mogavero from the Queenstown Xtra Mart robbery should have been suppressed because they were unreliable.

The appellant’s argument relies heavily on 1) the fact that one of these robbery victims was forced to lie down on the floor and was not, therefore, in the best position to observe the robber and 2) on the fact that several of the identifications were initially stated in arguably equivocal terms with less than ironclad certitude. To some extent, although not totally, the State takes the bait and spends at least 50% of its appellate effort in bolstering the challenged reliability by running through, at length, the five-factored guidelines of Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977). And see James v. State, 191 Md.App. 233, 253 , 991 A.2d 122 (2010). The appellant and the State go back and forth in what would be a spirited and appropriate tug of war before a fact finder on the ultimate issue of guilt or innocence.

The pertinent issue before us on this appeal, however, is not guilt or innocence, as a matter of fact, but the exclusion of evidence, as a matter of law. What might be persuasive argument on guilt or innocence is not necessarily pertinent argument on pretrial suppression. The appellant is reciting the reliability doxology in the wrong church. The reliability of evidence, in and of itself, is fundamentally a jury issue and not an exclusionary issue.

The exclusion of an extrajudicial identification, as a matter of law, is a constitutional question, requiring some improper “state action” by way of violating either the Sixth Amendment’s right to the assistance of counsel or the due process clause of the Fourteenth ¹⁵³ Amendment. The inherent unreliability of an identification, however, is not in and of itself the fulcrum for either one of those unconstitutionalities. To argue for the exclusion of an extrajudicial identification, as a matter of law, is now a very dated tactic, although it was once, for a brief time, a popular appellate favorite. Our response to the now faded contention requires us to revisit briefly the basic reasons that caused the contention quickly to fall out of fashion.

In Turner v. State, 184 Md.App. 175, 176-77 , 964 A.2d 695 (2009), a case involving a similar contention to the one now being made, we noted the subject’s heyday and its early demise: 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 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.

(Emphasis supplied). The Fourteenth Amendment And the Necessity for State Action At the most basic level, the relatively recent (post- Mapp v. Ohio in 1961) burgeoning of pretrial suppression hearings is a product of the so-called Warren Court Revolution and its transformative effect on procedures in state criminal trials. Central to understanding that entire phenomenon is an appreciation that in the phrase “constitutional law,” the modifying adjective “constitutional” serves a critical and limiting function. It is something quite distinct from evidentiary law.

In state criminal trials, the manifold protections of the federal Bill of Rights (essentially the first eight amendments) are only applicable to the states because they have, ¹⁵⁴ over the years and one by one, been deemed to be incorporated (or absorbed) into the due process clause of the Fourteenth Amendment. The coverage provision of that Fourteenth Amendment begins with what are undoubtedly the three most important words in all of constitutional history: “No state shall ...” For constitutional law to apply in a state criminal trial, there must first and foremost be “state action.” In Colorado v. Connelly, 479 U.S. 157 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986), Chief Justice Rehnquist pointed out that an allegedly involuntary confession could only be challenged as a matter of constitutional law if the agents of the alleged involuntariness had been City of Denver or State of Colorado law enforcement officials. The Supreme Court noted, 479 U.S. at 164 , 107 S.Ct. 515 : Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. (Emphasis supplied).

Chief Justice Rehnquist went on, id. at 165 , 107 S.Ct. 515 : Our “involuntary confession” jurisprudence is entirely consistent with the settled law requiring some sort of “state action” to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court found that the police committed no wrongful acts, and that finding has been neither challenged by the respondent nor disturbed by the Supreme Court of Colorado. (Emphasis supplied). Private action, good or bad, reasonable or unreasonable, simply does not qualify for constitutional exclusion: The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause ... [Suppressing respondent’s statements would serve absolutely no purpose in enforcing constitutional guarantees.

The purpose of excluding evidence seized in violation of the ¹⁵⁵ Constitution is to substantially deter future violations of the Constitution. 479 U.S. at 166 , 107 S.Ct. 515 (emphasis supplied). To the extent to which the challenged confession might have been otherwise unreliable, that would be a concern only for the evidentiary law of Colorado and not a concern of constitutional law. We think the Constitution rightly leaves this sort of inquiry to be resolved by state laws governing the admission of evidence and erects no standard of its own in this area. A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed, by the evidentiary laws of the forum. 479 U.S. at 167 , 107 S.Ct. 515 (emphasis supplied).

The same necessity for state action limits the Fourth Amendment’s exclusionary rule to unreasonable searches or seizures conducted by government agents and does not apply to equally unreasonable searches or seizures carried out by private persons. Burdeau v. McDowell, 256 U.S. 465, 475 , 41 S.Ct. 574 , 65 L.Ed. 1048 (1921) (“In the present case the record clearly shows that no official of the Federal Government had anything to do with the wrongful seizure of the petitioner’s property ... It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals.... ”); Coolidge v. New Hampshire, 403 U.S. 443, 488 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971) (“If the exclusionary rule is properly applicable to the evidence taken from the Coolidge house on the night of February 2, it must be upon the basis that some type of unconstitutional police conduct occurred.”); Walter v. United States, 447 U.S. 649, 656 , 100 S.Ct. 2395 , 65 L.Ed.2d 410 (1980) (“It has been settled since Burdeau v. McDowell that a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and that such private wrongdoing does not deprive the government of the right to ¹⁵⁶ use evidence that it has acquired lawfully.”); United States v. Jacobsen, 466 U.S. 109, 113 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984) (“This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual.’ ”). In the present case, the appellant has not remotely asserted that any suggestive or otherwise improper procedure was employed by the police officers who conducted the photographic arrays.

With respect to any of the three photographic identifications of the appellant by the three witnesses to the robberies in this case, the appellant has not pointed to a single suggestive action engaged in by any member of the Queen Anne’s County Sheriffs Department or by the Baltimore City Police Department or by anyone connected with the investigation or the prosecution of this case. Although the record in this regard was not fully developed at the suppression hearing, a local newspaper apparently ran a story about one or both of the robberies. Accompanying it was an MVA picture of the appellant. Two of the witnesses saw the photograph in the newspaper and later testified that when they saw it, they were absolutely certain that it was a photograph of the robber.

That photograph apparently showed the appellant wearing glasses, whereas in the earlier photographic array he had not been wearing glasses. The investigating police, however, had nothing to do with the viewing of the newspaper by the witnesses. The Fourteenth Amendment, of course, does not apply to the local newspaper, nor does it apply to the two witnesses who looked at the local newspaper. There was, thus, no state action that could even be unconstitutional.

The appellant’s only complaints were that the witnesses either were not in a position to have had a good view at the crime scene or that the original photographic identifications were made by them with less than absolute certainty. Those might be good arguments before the ultimate fact finder, but they have nothing to do with constitutional sup ¹⁵⁷ pression. The infinite factors bearing on the trustworthiness, the reliability, and the ultimate weight of evidence are things that are classically tested by cross-examination and argued to a jury. They are grist for the trial process.

They are not factors calling for constitutional exclusion, as a matter of law. A Meteoric Rise and Fall Constitutional identification law, which the appellant is invoking, enjoyed a precise decade (plus four days) of high-profile celebrity between 1967 and 1977. During that decade, it rivaled confession law and search and seizure law in the national spotlight. It commanded the attention of academic seminars and law reviews.

It began with a sunburst on June 12, 1967 as the Wade-Gilbert-Stovall trilogy rocketed onto the national stage. Initially, the big stars of that trio were 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). The constitutional principle which they championed was the Sixth Amendment’s guarantee of the assistance of counsel to a defendant. For the first time in constitutional history, the placing of a suspect in a police line-up for identification purposes was deemed to be a “critical stage.” These are classic Sixth Amendment code words.

If a defendant were placed in such a line-up without a lawyer having been provided and present, exclusion of the identification was automatically called for. Such exclusion was in high vogue, and everyone was talking about identification procedures. Within five years, however, a Thermidorean Reaction set in. Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972), first held that a suspect placed in a pre-indictment, as opposed to a post-indictment, line-up did not yet enjoy the protection of the Sixth Amendment because such a suspect was not yet an “accused.” Being at a critical stage would qualify an “accused” for Sixth Amendment assistance, but if you are not yet “accused” even a critical stage would not help.

Whatever little wind still propelled the exclusionary sails after Kirby , it was largely wafted away by the subsequent holding ¹⁵⁸ in United States v. Ash, 413 U.S. 300 , 93 S.Ct. 2568 , 37 L.Ed.2d 619 (1973), that even a post-indietment exhibition of a photograph of a subject, 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. Whereas Kirby had diminished the ranks of the “accused,” Ash diminished the incidence of a “critical stage.” As a basis for challenging extrajudicial identification, the Sixth Amendment essentially disappeared from the scene within five years of its initial appearance. As this Court noted in Turner v. State, 184 Md.App. at 179 , 964 A.2d 695 : 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.

(Emphasis supplied). Wade and Gilbert are has-beens; they are yesterday’s stars. Impermissible Suggestiveness With Wade and Gilbert largely relegated to the sidelines, attention shifted to the third case in the 1967 trilogy, Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). Stovall , unlike Wade and Gilbert , was grounded in the due process clause.

It was initially thought to be available in cases where governmental agents had subjected a suspect to impermissibly suggestive identification procedures. Even then, however, there were at least two requirements for exclusion. The suppression of an extrajudicial identification, as a matter of law, pursuant to the due process clause depended not only on suggestive procedures having been employed by the police but also on the further misfeasance that those suggestive procedures were impermissible rather than being born of the exigency then facing the police. In ¹⁵⁹ Turner, 184 Md.App. at 180 , 964 A.2d 695 , this Court elaborated on the two-fold nature of the exclusionary inquiry.

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