Allen v. State
| Decision Date | 06 May 2019 |
| Docket Number | No. 305,305 |
| Parties | JERRY WYDELL ALLEN v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Wicomico County
UNREPORTED
Meredith, Shaw Geter, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.
Opinion by Alpert, 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.
A jury sitting in the Circuit Court for Wicomico County convicted Jerry Wydell Allen, appellant, of robbery with a dangerous weapon; robbery; two counts of theft of goods valued at less than $100; first-degree assault; second-degree assault; reckless endangerment; and carrying a dangerous weapon openly with the intent to injure. He was sentenced to 16 years of imprisonment for armed robbery. His remaining convictions were merged for sentencing purposes. Appellant raises on appeal the following questions, which we have condensed and slightly rephrased:
For the reasons that follow, we shall affirm.
The State's theory of prosecution was that on the late evening of May 29, 2017, appellant and two young female accomplices assaulted and robbed Timothy Smith as he was delivering pizzas to a house. Testifying for the State, among others, was Smith and several officers with the Salisbury City Police Department. The theory of defense was lack of criminal agency. A fingerprint examiner testified for the defense. The following was elicited at appellant's trial.
On May 29, 2017, Smith worked as a delivery driver for the Pizza Hut located on Mt. Hermon Road in Salisbury, and around 11:00 p.m., he was directed to make a delivery of four pizzas to 1000 John Street. When he arrived at the house, it appeared vacant -- no outside lights were on but there was a light on inside the house. Smith walked up to the door. A man, identified by Smith in court as appellant, answered the door, and Smith noticed that his eyes were "unusual." The two spoke, and Smith handed appellant the pizzas.
As Smith waited for appellant to pay, Smith was hit on the head from behind. Smith turned and a saw a young woman wearing a "toboggan-type" face mask holding a wooden rod. Because of the blow to the head, Smith "started to see white[.]" He backed about 15 - 20 feet away and told them, "[W]e don't have to do it this way" and that he would "gladly give them some money[.]" Appellant responded, "[T]hat's right, you're gonna give us some money[.]" Around this time, Smith noticed another young woman lingering in the background.
Appellant approached Smith with the two broken rod pieces. Smith grabbed the tops of them, and he and appellant began to wrestle and hit each other. During the scuffle, Smith's glasses fell off. Panicked, Smith pulled out his wallet and handed a "wad of cash" to the other woman, without a mask, who took it. Appellant asked her, "[D]id you get the money?" and she replied, "[Y]es." The first woman entered Smith's jeep. Smith retrieved his glasses, got into the passenger seat, and yelled at her to "get out." She did. As all three of the assailants struck him and his car with their fists and the rod pieces, Smith drove away.
Smith called 911, and he met the police at the Pizza Hut. One of the responding police officers testified that when he arrived, Smith was "physically shaking[,]" "bleeding profusely" from the back of his head, and his shirt was "saturated" with blood. Smith told the police that he was attacked by two young females and one male. He described the male assailant, including that "something [was] wrong" with his eyes. Pictures taken by the police of Smith's bloodied head were admitted into evidence.
About twenty minutes after the police spoke to Smith, the police detained appellant and two 14-year-old females behind a commercial building about 150 yards from where the assault occurred. Appellant was wearing a red jacket, had blood on the knuckles of his hand, and four pizza boxes containing "fresh" pizza were found by the dumpster, about 15 feet from where appellant was detained. In the meantime, the police searched the area around the house where the robbery occurred and found a broken wooden closet rod, which was admitted into evidence, and a Pizza Hut warming bag. A K-9 unit responded to the house and the dog tracked a scent from the house to the area where appellant and the two young women were detained.
Smith was transported by police cruiser from the Pizza Hut to the area behind the commercial building for a show-up identification. From the back seat of the cruiser, Smith identified appellant, who was about 40 feet away, as the male assailant. Smith then went to the emergency room where he received medical treatment, including five staples, for the wound to his head.
Appellant was taken to a police station for questioning. The police noted that he had "an eye impairment" and a "large blood smear" on the backside of his left hand. Thepolice swabbed appellant's hands and sent the swab to a DNA lab. The swab tested positive for blood and contained Smith's DNA. A swab of the closet rod likewise tested positive for blood and contained Smith's DNA.
The defense called a fingerprint examiner who testified that appellant was excluded as a source of fingerprints on the four fingerprints found on one of the pizza boxes discovered in the area where appellant was detained. The defense introduced into evidence two medical examinations of appellant several months after the incident that indicated that he was legally blind in his right eye, and his left eye had been removed.
Appellant argues that the suppression court erred when it denied his motion to suppress the show-up identification of him because it was impermissibly suggestive and not otherwise reliable. The State argues that the show-up was not impermissibly suggestive, but even if it was, there was no error because the identification was reliable. We agree with the State.
"The practice of presenting single suspects to persons for the purpose of identification is not per se prohibited." Green v. State, 79 Md. App. 506, 514 (1989) (citation omitted). These type of confrontations, called show-ups, are justified by "the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh." Foster v. State, 272 Md.273, 290 (quotation marks and citations omitted), cert. denied, 419 U.S. 1036 (1974). See also State v. Greene, 240 Md. App. 119, 139 (2019) (). Courts must exclude an out-of-court (extrajudicial) identification, however, when "the confrontation resulted in such unfairness that it infringed [the defendant's] right to due process of law" under the Fifth and Fourteenth Amendments of the United States Constitution. Stovall v. Denno, 388 U.S. 293, 297-99 (1967), overruled on other grounds by Griffith v. Kentucky, 479 U.S. 314 (1987).
The Court of Appeals has summarized the two-step inquiry to determine admission of an extrajudicial identification:
The first question is whether the identification procedure was impermissibly suggestive. 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. 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.
Smiley v. State, 442 Md. 168, 180 (2015) (quotation marks and citations omitted). "'Suggestiveness' exists where '[i]n effect, the police repeatedly said to the witness, 'This is the man.'" Jones v. State, 310 Md. 569, 577 (1987) (quoting Foster v. California, 394 U.S. 440, 443 (1969) (emphasis in Foster)), vacating judgment on other grounds, 486 U.S. 1050 (1988). In determining whether the State has met its burden of showing that the identification was reliable despite the suggestiveness of the identification procedure, theUnited States Supreme Court has suggested a court look to five factors: "'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.'" Wood v. State, 196 Md. App. 146, 161 (2010) (quoting Neil v. Biggers, 409 U.S. 188, 199 (1972)), cert. denied, 418 Md. 192 (2011).
It is well-settled that when reviewing a lower court's ruling on a motion to suppress we look only to the record of the suppression hearing. Owens v. State, 399 Md. 388, 403 (2007) (citation omitted), cert. denied, 552 U.S. 1144 (2008). We "extend great deference to the findings of the motions court as to first-level findings of fact and as to the credibility of...
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