Alexander v. State, 1548
| Decision Date | 14 October 2016 |
| Docket Number | No. 1548,1548 |
| Parties | PERRY ALEXANDER v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Krauser, C.J., Woodward, Salmon, James P. (Senior Judge, Specially Assigned), JJ.
Opinion by Salmon, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
On the evening of February 24, 2013, in the 1700 block of Montpelier Street, Baltimore City, Maurice Barfield was found by Baltimore City Police Officer James Edge, lying face down in the street with gunshot wounds to his back and head. Shortly thereafter, the officer found Shauntice Evans in a Cadillac automobile parked in front of 1722 Montpelier Street. She had sustained two gunshot wounds to her left upper chest, as well as a wound to her left wrist. Both Mr. Barfield and Ms. Evans died as a result of their gunshot wounds.
In regard to the aforementioned shootings, Perry Alexander, appellant, was convicted by a jury, in the Circuit Court for Baltimore City, of second-degree murder of both Ms. Evans and Mr. Barfield; two counts of use of a handgun in the commission of a crime of violence; two counts of wearing, carrying and transporting a handgun; one count of conspiracy to murder Mr. Barfield; and one count of conspiracy to murder Ms. Evans. The trial court imposed sentences totaling life imprisonment, with all but 75 years suspended.
In this timely appeal, appellant raises three questions, viz.:
The key witness against Alexander at trial was Timothy Veasey. He testified that on February 24, 2013 he arrived home from work at about 9:00 or 9:30 p.m. Not long afterwards, he went outside and talked to three people who were standing outside of the fenced yard of the house that he shared with his mother. He knew the three young men by their nicknames, i.e., "Dre" (Deandre Branch), "P" (appellant), and "Tone." He knew "Dre" because he had given him rides in his automobile previously. He knew appellant from having seen him hanging around outside the house next door to his house almost every day, and he knew that Tone had an aunt that lived two or three doors away. Mr. Veasey proceeded to talk to the young men for about fifteen minutes. The subject discussed was Mr. Veasey's upcoming marriage.
Mr. Veasey further testified that while he chatted with the three young men, he saw a man walking up the street toward him. When that man approached the group (i.e., "Dre," "P," "Tone," and Mr. Veasey) he said The man who said this was later identified at trial as Maurice Barfield.
After hearing the words spoken by Mr. Barfield, both "Dre" and appellant almost simultaneously pulled out guns and began shooting at Barfield. As Barfield ran away, the two ran after him firing their guns. "Tone," however, ran off toward Harford Road and did not shoot anyone. Next, Mr. Veasey heard a woman scream. That woman was in a black Cadillac parked across the street from where Mr. Veasey was standing. Mr. Veasey sawthe woman shut the door to the Cadillac and attempt to climb into the back seat of the car. Mr. Veasey saw appellant go over to the Cadillac and attempt to open the door. When he could not get the car door open, appellant shot through the window at the woman. "Dre" also fired at her. Mr. Barfield although wounded, came back to the area where the Cadillac was parked, apparently to help Ms. Evans. But when he returned, both appellant and "Dre" fired at him once again. After the shooting appellant ran toward Polk Street, while "Dre" ran in the direction of Harford Road.
Although Mr. Veasey witnessed the shooting, he waited about one and one-half weeks before he contacted the homicide unit to tell them what he had witnessed. He did so at the insistence of his mother. Mr. Veasey initially spoke to Baltimore City Detective Raymond Yost and told the detective that he "saw everything." At police headquarters, Mr. Veasey identified appellant from a photographic array and signed his name above appellant's photograph. On the back of the photographic array, he wrote: "Started shooting after Deandre started shooting and went to the car and pulled on [the] door knob after shooting through the window."
According to Mr. Veasey's testimony, appellant used a revolver in the shooting and "Dre" used what Mr. Veasey called an "automatic" handgun, which he said looked like a 9mm. According to Mr. Veasey's testimony, he thought he heard a total of about 17 shots. He testified that before the shooting, he had never seen the two victims.
Detective Yost testified at trial that he received a message from Mr. Veasey several days after the murders. When he met with Mr. Veasey, the latter told Detective Yost that"P" (appellant), who was one of the shooters, attended Harbor City High School. Detective Yost went to the high school and obtained the name Perry Alexander as that of a student who used the nickname "P." Detective Yost assembled a six picture photographic array and showed it to Mr. Veasey on March 8, 2013. Mr. Veasey identified appellant from the photographic array as one of the shooters. Mr. Veasey, however, was unable to identify "Dre" from the second photographic array that was shown to him. Additional facts will be included as needed to answer the questions presented.1
At the motion to suppress hearing, the photographic array was introduced into evidence. All the young men depicted in the array were approximately the same age and were all young adult, African-American males. Two of the persons in the array had on white T-shirts while appellant and the remaining three men wore black T-shirts. Also, all of the persons depicted in the photographs had basically the same short hair style. Of the six persons depicted, only one appears to be looking directly into the camera when the photograph was taken. During his testimony, Detective Yost admitted that appellant's photograph differed from the other images in the photographic array in two ways. First,with one exception, the top of appellant's head as shown in his photograph appeared closer to the top of the photograph than the tops of the heads of other persons shown in the array. The one exception was that the photo of an unidentified man, whose picture was in the bottom right of the array, showed the top of his head near the top of the photograph. Secondly, Detective Yost admitted that appellant's eyes, as shown in the photograph, although not closed, appeared "to be kind of looking downward like kind of squinted maybe."
Insofar as the photo array was concerned, Mr. Veasey's testimony and that of Detective Yost was consistent with their testimony at trial, which is summarized in Part I. In his testimony at the suppression hearing, Mr. Veasey also mentioned the fact that prior to the shooting, he had known appellant for "five or six months" and during that period would see him "every day." He knew appellant well enough prior to the shooting to give him advice: "stay in school." Moreover, according to Mr. Veasey, it was not unusual for "Dre," "P," and "Tone" to stand in front of the house where appellant lived. Both Mr. Veasey and Detective Yost denied that anyone suggested to Mr. Veasey which picture in the array he should select.
At the conclusion of the hearing, appellant's counsel argued that the photographic array, on its face, was impermissibly suggestive because appellant's "eyes were closed" and because of how the image of appellant was situated in the frame of the photograph.
The motions judge denied appellant's request to suppress the photographic identification by Mr. Veasey. The judge explained:
All right. I don't think it's unduly suggestive even though I understand, Mr. [Defense Counsel], what you're saying, but I do agree with Ms. [Prosecutor]. The space between the other young man - - gentleman's head bottom right it's a little bit more, but it's pretty much toward the top. The eyes of all six are going in different directions. They're not - - and actually, the top middle one is also looking down. So I don't think there's anything unduly suggestive, so I'm going to deny the motion.
Appellant alleges that the "pre-trial hearing court erred by denying [his] motion to suppress evidence of an out-of-court identification of him from a photo array." In support of that argument, appellant asks us "to find that the photo array [shown to Timothy Veasey] was impermissibly suggestive on its face in that the distinguishing features of [a]ppellant's photograph may have conveyed to the witness that [a]ppellant's was the photograph that he should choose."
It is fundamental that "'due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures."' Webster v. State, 299 Md. 581, 599-600 (1984) (quoting Moore v. Illinois, 434 U.S. 220, 227 (1977)); Gatewood v. State, 158 Md. App. 458, 475 (2004), aff'd on other grounds, 388 Md. 526 (2005). Due process principles apply to remedy the unfairness resulting from the admission of evidence that is based on an identification procedure that was "unnecessarily suggestive" and conducive to misidentification at trial. See Neil v. Biggers, 409 U.S. 188,...
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