Banks v. State

• Decision Date: 24 July 2017
• Docket Number: No. 978,978
• Parties: ISAIAH BANKS v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

ISAIAH BANKS v. STATE OF MARYLAND

No. 978

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

July 24, 2017

Circuit Court for Baltimore City

Case No.: 114325005

UNREPORTED

Nazarian, Shaw Geter, Raker, Irma S., (Senior Judge, Specially Assigned), JJ.

Opinion by Shaw Geter, 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.

This case arises from the armed robbery of a cab driver on October 23, 2014, in Baltimore City. Following a three-day jury trial in the circuit court, appellant, Isaiah Banks, was convicted of first-degree assault, conspiracy to commit first-degree assault, armed robbery, conspiracy to commit armed robbery, and use of a handgun in the commission of a crime of violence. He received a sentence of twenty years, with eight years suspended. Thereafter, appellant noted this timely appeal, presenting three questions that we have reordered as follows:

I. Was the "show-up" police procedure by which the victim identified Banks so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification under the U.S. and Maryland constitutions?

II. Was the evidence at trial insufficient to convict Banks of use of a handgun in the commission of a crime of violence, where the only evidence of a handgun was the uncorroborated testimony of an alleged accomplice?

III. Did the State's improper arguments in closing, including vouching for three key witnesses and misstating the law, violate Bank's right to a fair trial under the U.S. and Maryland constitutions?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

BACKGROUND

Jeanette Siegman was employed as a cab driver and on October 23, 2014, she received a call around 11:30 a.m. for service outside of a pawnshop on Annapolis Road in Baltimore City. Two males got into the cab, and Siegman, who had worked as a cab driver for twenty-five years, made a number of observations about both individuals.¹ Siegmandescribed the first individual—whom she later identified as appellant—as wearing a hat, a red jacket, a hooded sweatshirt, and dark pants. She also noted he was in his mid-twenties, had a mustache, a little beard, and his face was "pockmarked" or had a "cratered" complexion. The second individual, whom Siegman identified as Donte Bazemore, sat in the rear passenger seat; Siegman indicated that he wore a black jacket and dark pants. Siegman also observed that he was skinnier than the first individual; he was in his early twenties; and he had short hair, a chubby face, and a little mustache. Once both individuals were in the cab, they told her to drive to Huron Street, approximately fifteen minutes away.

Siegman could see appellant and Bazemore in her rearview mirror during the cab ride. When she arrived at Huron Street, she put the vehicle in park, and, suddenly, she felt two cold objects pressed against her neck.² The passengers demanded that she hand over her money, car keys, cell phone, and any other valuable possessions in the cab. Bazemore then walked around to the front of the vehicle, searched her belongings, and went through her glove box. He also had Siegman lift up her shirt to ensure she was not hiding anything—while appellant ensured compliance by continuing to press the object against her neck.

After the robbery, appellant and Bazemore told Siegman to stay in the car. They told her that if she agreed not to call the police, they would place her cell phone by thestreet corner; if she did not cooperate, she would get hurt. Siegman initially sat in the car and froze, but once appellant and Bazemore left, she ran to the street corner. She was not able to find her cell phone but eventually borrowed a phone from a group of people walking by. She called her dispatcher, who in turn called the police.

Multiple officers responded to the scene. Siegman provided a description of appellant and Bazemore to the officers. At one point, while she was giving a recorded statement, Detective John Voorhees asked if he could drive her to a nearby light rail station to look at a potential suspect. Siegman was accompanied by two detectives in a vehicle with tinted windows. She remained in the vehicle and observed an individual approximately thirty feet away with his hands behind his back next to two officers. Detective Voorhees asked if there was anyone that she recognized. Siegman positively identified appellant as the one who robbed her, and she broke down in tears. She was later taken to another location and identified the other robber in the taxicab, Donte Bazemore.

Before trial, on February 23, 2016, appellant challenged Siegman's identification. The court held a hearing on the motion to suppress, wherein appellant argued that the manner in which the show-up was conducted and the inconsistencies in appellant's description produced an impermissibly suggestive and unreliable identification. Following testimony, the court first ruled that the police procedures were not so impermissibly suggestive to cause a misidentification. Next, the court noted that Siegman had an extended period of time to observe appellant; she testified that she was "100 percent sure" appellant was the one that robbed her; and she broke down crying after identifying him.The court also observed that Siegman's description of appellant was detailed and the length of the detention was very brief. The court then ruled, alternatively, that the identification was reliable. As a result, the court denied the motion to suppress.

At trial, appellant argued that he and Bazemore were incorrectly identified as the robbers by Siegman. Defense counsel noted that Siegman did not provide a consistent description of appellant to the officers at the scene, he challenged Siegman's timeline of the robbery, and he challenged Bazemore's impartiality as a witness. The jury ultimately returned a verdict convicting appellant of first-degree assault, conspiracy to commit first-degree assault, armed robbery, conspiracy to commit armed robbery, and use of a handgun in the commission of a crime of violence. This appeal followed.

DISCUSSION

I. The Suppression Hearing

Appellant first argues that the circuit court erred in denying his motion to suppress Siegman's identification because the show-up procedure was unnecessarily suggestive and unreliable. When reviewing the disposition of a motion to suppress evidence, "we view the evidence adduced at the suppression hearing, and the inferences fairly deductible therefrom, in the light most favorable to the party that prevailed on the motion." Crosby v. State, 408 Md. 490, 504 (2009). "We extend great deference to the fact finding of the suppression court and accept the facts as found by that court unless clearly erroneous," Wilkes v. State, 364 Md. 554, 569 (2001), while questions of law are reviewed de novo. Crosby, 408 Md. at 505. In order to determine whether a violation occurred, we "make ourown independent constitutional appraisal by reviewing the law and applying it to the facts of the case." State v. Williams, 401 Md. 676, 678 (2007).

Due process protects defendants against "unreliable pretrial identifications obtained through unnecessarily suggestive procedures." Webster v. State, 299 Md. 581, 600 (1984) (quoting Moore v. Illinois, 434 U.S. 220, 227 (1977)). The test regarding the admissibility of evidence involves a two-step burden shifting analysis. First, the court must decide whether the identification procedure was impermissibly suggestive. Smiley v. State, 442 Md. 168, 180 (2015). During this stage, the burden is on the defendant to show "some unnecessary suggestiveness" in the procedures employed by the police. Thomas v. State, 139 Md. App. 188, 208 (2001). Suggestiveness exists where, "[i]n effect, the police repeatedly said to the witness, [t]his is the man." McDuffie v. State, 115 Md. App. 359, 367 (1997) (internal quotation marks and citations omitted). However, "mere suggestiveness does not call for exclusion." Turner v. State, 184 Md. App. 175, 180 (2009). Further, the use of a show-up may be 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 (1974) (citation omitted).

If the defendant makes a showing of impermissible suggestiveness, the burden shifts to the State to prove, under the totality of the circumstances, "the existence of reliability in the identification that outweighs the corrupting effect of the suggestive procedure." Thomas, 139 Md. App. at 208. The factors considered in evaluating the identification are:"the witness's opportunity to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of any prior description, the witness's level of certainty, and the length of time between the crime and the identification." Id. at 210.

Appellant argues on appeal that the show-up procedure was unnecessarily suggestive because two officers flanked him with their hands on his arms; he was the only person in the vicinity flanked by officers; Detective Voorhees pointed at him when asking Siegman to make the identification; Siegman (mistakenly) believed he was in handcuffs; and Siegman was too far away to observe the pockmarked complexion she previously described. Appellant also argues that the procedure was unnecessary and that the in-court identification was irrevocably tainted by the improper out-of-court identification. Conversely, the State argues that appellant was detained for a short period of time; he was not handcuffed; and the show-up ensured a speedy and accurate identification.

Davis v. State is instructive. 13 Md....