Bomas v. State
| Decision Date | 15 January 2010 |
| Docket Number | No. 125, September Term, 2008.,125, September Term, 2008. |
| Citation | 412 Md. 392,987 A.2d 98 |
| Parties | Tavon BOMAS a/k/a Tavon Bomar v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Marc A. DeSimone, Jr., Asst. Public Defender (Nancy S. Forster, Public Defender, of Baltimore), on brief, for petitioner.
Sarah Page Pritzlaff, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland of Baltimore), on brief for respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, ELDRIDGE, JOHN C., (Retired, Specially Assigned), JJ.
Petitioner, Tavon Bomas a/k/a Tavon Bomar (hereinafter "Bomar")1 was tried and convicted in the Circuit Court for Baltimore City of second-degree murder and use of a handgun in a crime of violence. Bomar's conviction rested principally on the eyewitness identification of him by an off-duty detective. We granted his request for a writ of certiorari to review the standard by which trial judges determine whether to admit expert testimony on eyewitness identification and to decide if the Circuit Court exercised proper discretion in excluding such proffered expert testimony in this case. Although we will clarify the standard for the admission of expert testimony on eyewitness identification, we shall hold that the Circuit Court in this case properly evaluated the proffered expert testimony.
On April 18, 2004, at approximately 2:00 a.m., off-duty detective Kenneth Bailey stopped his truck in traffic on York Road near the Tower Lounge, a bar in Baltimore City. Bailey heard six to eight gunshots emanating from a crowd of people that had formed on the sidewalk roughly fifteen feet away from him. He observed an individual, whom he later identified as Bomar, shoot at and ultimately kill a young African American male. After shooting the victim, Bomar passed within a car length of Bailey's vehicle and fled the scene. Bailey drew his weapon with the intent of pursuing Bomar but a police officer approached Bailey and requested he identify himself. After establishing his identity, both Bailey and the police officer tried, unsuccessfully, to locate Bomar. In a report Bailey filed a week later, he described the shooter simply as "a black male."
The case did not progress until October 14, 2004, when police arrested Jimmy Dower for heroin possession and he volunteered information about a shooting on York Road. Dower told police that he had been inside Tower Lounge the night of the shooting and had observed an argument between the shooter and the victim. Dower originally told police that the shooter's name was Henry Low, but he later testified that he had known Bomar as "Henry Low" for "[p]ractically all [of Bomar's] life." According to Dower, Bomar and the victim left Tower Lounge and he too went outside. Dower saw Bomar retrieve a handgun from a vacant home on York Road and fire several shots at the victim.
After Dower identified Bomar, police constructed a photo array that included Bomar's picture and showed the array to Bailey on October 26, 2004. Bailey identified Bomar as the perpetrator of the murder. Dower met with police at a 7-11 store parking lot whereupon police showed him the photo array. Dower identified Bomar's picture in the array and he signed and dated Bomar's photo. Based upon the eyewitness identifications of Bailey and Dower, police arrested Bomar on November 3, 2004. Initially Bomar claimed he was not at Tower Lounge the night of the shooting, but he later stated that he witnessed the shooting.
Bomar moved to suppress the pretrial eyewitness identifications made by Bailey and Dower. At the pretrial hearing and at trial, Dower repudiated his identification of Bomar as the shooter. He claimed a different person was the real shooter and that police had directed him towards Bomar's photo. Dower also expressed his reluctance to testify in court and concern that he would incur a reputation as a "snitcher[.]" The motions judge found the photo array and Bailey's identification not impermissibly suggestive and denied Bomar's motion to suppress.
Bomar also proffered testimony from David Schretlen, Ph.D., an expert in the field of neuropsychology and a licensed psychologist, at a pretrial hearing. Dr. Schretlen offered testimony that (1) a "trained observer," such as a police officer, has no better ability to remember faces than a lay person, (2) a witness's confidence in his testimony is not correlated with the accuracy of his identification, (3) stress and the passage of time adversely affect one's ability to recall events or people, (4) a police photo array can influence a witness's identification of a suspect, and (5) juries tend to believe eyewitness testimonies in spite of "effective cross examination." Because Dower had recanted his identification of Bomar at trial, Bomar sought to use Dr. Schretlen's testimony to counter Bailey's identification. Bomar proffered testimony on several issues from Dr. Schretlen. On the effect of stress on memory, Dr. Schretlen offered the following:
[Schretlen]: Another factor that has been examined is the level of stress that a person is under when they're trying to encode information. Although there are some studies showing that moderate levels of stress are beneficial, there are a number of studies suggesting that extremely high levels of stress actually impede the effective encoding of to be remembered material.
[Schretlen]: There's been very little data on the impact of a violent event.... [One study uses] soldiers who are undergoing survival skills training ... there's a facility in which soldiers are prepared to withstand the withers of interrogation if they're captured as prisoners of war and in that, in that survival skills training, they are exposed to both stressful, high stressful and low stress interrogation techniques and [the study] has shown that people are much better at remembering the faces of interrogators who interrogate them in a low stress fashion compared to interrogators who interrogate them in a high stress fashion and there are a number of such studies showing that when people are under high levels or exposed to high levels of stress, their memory is actually not as good as it is when they are under you know a sort of ordinary level, experiencing an ordinary level of arousal[.]
* * *
I don't think people appreciate that high levels of stress might actually impair memory rather than foster it as you gave an example, I think, of the person who says I was so frightened, I'll never forget that face.
[Schretlen]: Relatively few studies of very high levels of stress. The studies that I have seen of very high levels of stress ... more consistently suggest that it impedes encoding. Studies of sort of lower levels of stress suggest that when you go from an extremely low level to a moderate level, that can actually be beneficial[.]
[Schretlen]: It depends on the individual.
* * *
[P]eople experience different levels of fear, or arousal, or distress in response to the same event and what the studies suggest is that people who ... experience very high levels of arousal are more likely to have problems encoding a new memory.
[Schretlen]: I think that stands to reason.
Q: So arguably, someone who is watching ... someone holding a gun on someone else, would conceivably be under less levels of stress than that person having a gun held on them personally, correct?
[Schretlen]: Very possibly.
Q: And if you add to it the fact that ... the person is a 20-year military person [who is] trained in guns and gunfire and then also a person who is a trained law enforcement officer, conceivably that level of stress could be even less, correct?
[Schretlen]: It certainly is a possibility[.]
[Schretlen]: Yes.
Q: Can you cite me any studies in which that particular scenario is involved where people are watching the interrogation?
[Schretlen]: No.
With respect to the storage of information within human memory, Dr. Schretlen offered the following:
Q: And can you explain what the research has shown, what the scientific research has shown in regards to human memory and the storing of information?
[Schretlen]: Well the major finding in that area, Your Honor, is [that] the longer information is stored, the more it tends to break down. But again, what's not so intuitive about this is that the forgetting curve is just that, a curve. It's not a straight line. That is we forget the most information in the few seconds or minutes after we're exposed to it and we forget less and less of the material as time goes by.
[Schretlen]: I think some of them are a matter of common sense but there are a number of findings that are actually somewhat counter intuitive.
Q: Of the ones that are counter intuitive, which ones are they in particular?
[Schretlen]: I don't think people appreciate that the relationship between exposure time ... and memory encoding accuracy ... is a curvilinear relationship[.]
Q: What about ... in regards to ... your expert testimony that the longer information is stored in fact relates [to]...
To continue reading
Request your trial
-
Alford v. State
...In the absence of an error of law or fact, we review the admission of expert testimony for abuse of discretion. See Bomas v. State , 412 Md. 392, 416–17, 987 A.2d 98 (2010) ; Wilson v. State , 370 Md. 191, 200, 803 A.2d 1034 (2002). Moreover, the trial court's "action in admitting or exclud......
-
Small v. State
...testimony regarding an eyewitness identification is offered, its admissibility is governed by Maryland Rule 5-702 and Bomas v. State , 412 Md. 392, 987 A.2d 98 (2010) ).21 To be sure, we are not, as the Concurring Opinion suggests, "dismiss[ing] decades of extensive social science research[......
-
Sewell v. State
..."to determine whether proffered testimony has a credible foundation and is relevant to the facts of a given case." Bomas v. State , 412 Md. 392, 417-18, 987 A.2d 98 (2010). On appeal, "[i]n the absence of an error of law or fact, we review the admission of expert testimony for abuse of disc......
-
Wilder v. State
...v. State, 181 Md.App. 204, 208, 956 A.2d 215 (2008) (citations and internal quotation marks omitted), aff'd on other grounds, 412 Md. 392, 987 A.2d 98 (2010).13 Wilder asserts, in the words of his brief, the admission of Detective Hanna's testimony directly contradicts the holding of Raglan......
-
Identification procedures
...(Pa. 1995); State v. Carr , 331 P.3d 544 (Kansas 2014), overruling Kansas v. Gaines , 926 P.2d 641, 646-49 (Kan. 1996); Bomas v. State , 412 Md. 392, 407-08 & nn.5-9, 987 A.2d 98, 107 & nn.5-9 (MD 2010) (surveying cases); but see State v. Henry , 147 So.3d 1143, 1164 (La. Ct. App. 2014) (no......