Gray v. State
| Decision Date | 24 September 2015 |
| Docket Number | No. 2302,No. 2797,2302,2797 |
| Parties | DARREN KEON GRAY v. STATE OF MARYLAND JAMES HENDERSON v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
**Zarnoch, Kehoe, Leahy, JJ.
Opinion by Zarnoch, J.
**Zarnoch, Robert A., J., participated in the conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.
*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.
Following a late-night party in Towson, four young adults were the victims of an armed robbery, committed by two individuals whom they had seen earlier in the night at the party. Police arrested the suspects, and, after a jury trial, two convictions resulted, which are now the subject of this consolidated appeal. Appellants James Henderson and Darren Gray allege error at virtually every stage of the proceedings.
Henderson presents the following question:
I. Did the Circuit Court err in denying Appellant's pre-trial motion to suppress evidence of an out-of-court photo array identification?
Gray presents the following questions:
Finding no reversible error, we affirm.
We state the facts as recounted at appellants' trial, held in the fall of 2013. On the night of January 26 and early morning of January 27, 2013, the victims attended a party at 1341 Taylor Avenue in Towson. At one point, about 100 people had joined the festivities. Dominic Castro, a State's witness, testified that when he arrived, he noticed three men at the party who it was "apparent" did not know anyone there.
Castro left the party around 2:00 a.m. with Jacob Hux, Shelby Schultz, and Jeremy Riley. Hux was in the driver's seat. As Hux was placing the key in the ignition, his car was blocked in by a four-door Ford. According to Castro, a man exited from the rear driver's seat wearing a face mask and carrying a revolver. The man told Hux, "Give me your stuff," and took Hux's keys. The man then pointed the gun at Schultz and made a similar request. After she said she had nothing, the assailant hit her in the face. Castro then gave the man his wallet, and the man left in the Ford.
After the police responded to the incident, Castro told the officers that the car was silver and that his friend had told him it was silver-blue. Hux testified that a black man with a darker complexion and a "fairly big build" got out of the backseat of the car that blocked them in.
Darren Gray and James Henderson were indicted in the Circuit Court for Baltimore County with thirty nine counts related to two separate instances of armed robberies and related crimes, both of which occurred on January 27, 2013. After a jury trial—held from October 29, 2013 through November 1, 2013—Appellants were found guilty of twenty-counts in the indictment. They each were sentenced on December 18,2013, to more than one-hundred twenty years of imprisonment with the first five years to be served without the possibility of parole for robbery and attempted robbery with a dangerous weapon and for the use of a handgun in the commission of a crime of violence. This appeal followed.
Henderson alleges error in the circuit court's denial of his motion to suppress a photo-array identification. Because, in reviewing a motion court's denial of a motion to suppress, we are limited to the record of the suppression hearing, we will recount the testimony heard by the court in the suppression hearing held on October 29, 2013. Upshur v. State, 208 Md. App. 383, 391 (2012) (citing Williams v. State, 372 Md. 386, 401 (2002)). According to testimony, following a tip from one of the victims, police arrested Roland Eisenhart on February 5, 2013 and brought him to the Towson precinct police station where they questioned him. Eisenhart testified that he told the police that he did not know the identities of the Appellants in this case, but did know them by their nicknames, Tay and Gooch. After being placed in a holding cell, Eisenhart identified Gray from an image in a photo-array. Eisenhart was released 24-hours later.
On February 8, 2013, Detective Meckley contacted Eisenhart to notify him that the police were going to come to his residence. Eisenhart met Det. Meckley outside and stepped into the detective's vehicle. While inside the vehicle, Det. Meckley produced a photo array from a manila envelope and asked Eisenhart to look at it. According to Eisenhart, Det. Meckley did not state that one of the suspects would be in the array;instead, Det. Meckley stated "I want you to look at some pictures." Eisenhart stated that Det. Meckley did not tell him that he was required to identify someone from the array, that Det. Meckley did not tell him whom to identify, and that Det. Meckley did not suggest that he pick a particular photograph. The photo-array contained six individuals, only one of whom had tattoos on his face-Henderson. Eisenhart identified Henderson in the array.
At the motions hearing, Henderson moved to suppress Eisenhart's identification, arguing that the absence of tattoos on the faces of the other subjects in the photo-array made the array unduly suggestive. The court denied Henderson's motion to suppress, finding nothing impermissibly suggestive in the photo array and observing that "[t]he fact that [Henderson] may or may not have tattoos is another distinguishing factor that is subject to change[,] similar to hairstyles, facial hairs[,] and other things."
In his only contention on appeal, Henderson argues that the photo array identification made by Eisenhart was impermissibly suggestive because, of the six photographs presented in the array, Henderson's was the only one with visible tattoos.
We view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the party who prevailed on the motion to suppress, in this case, the State. Williams v. State, 372 Md. 386, 401 (2002) (citing Wilkes v. State, 364 Md. 554, 569 (2001); (Samuel) Jones v. State, 343 Md. 448, 458 (1996)). The appellate court will "defer to the fact finding of the suppression court and accept the facts as found by that court unless clearly erroneous." Upshur, 208 Md. App. at 391-92 (citing Wilkes, 364 Md. at 569). "In determining whether a constitutional right has been violated, we make anindependent, de novo, constitutional appraisal by applying the law to the facts presented in a particular case." Id.
Police often use photographic displays in criminal investigations to aid in identification of suspects. As the Court of Appeals stated in (Kevin) Jones v. State, "[t]he use of photographic displays by the police to identify suspects is used widely in the United States, and when conducted properly, has been held to be admissible in evidence." 395 Md. 97, 107 (2006) (citing Simmons v. United States, 390 U.S. 377 (1968)). "Criminal defendants receive due process protection 'against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.'" Id. at 108 (quoting Moore v. Illinois, 434 U.S. 220, 227 (1977)). Maryland courts apply a two-step inquiry when a defendant challenges an out-of-court photographic identification as being impermissibly suggestive. Upshur, 208 Md. App. at 400.
The first [step] is whether the identification procedure was impermissibly suggestive. If the answer is "no," the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable.
(Kevin) Jones, 395 Md. at 109 (citing (Gregory) Jones v. State, 310 Md. 569, 577 (1987), vacated on other grounds, 486 U.S. 1050 (1988)) (Internal citations omitted). "The defendant bears the burden of proof in the first stage of the inquiry, and, if the defendant meets this burden, then the prosecution has the burden in the second stage of the analysis." Upshur v. State, 208 Md. App. 383, 400 (citing In re Matthew S., 199 Md.App. 436, 447-48 (2011)). We reiterate that "unless and until the defendant establishes that the identification procedure was in some way suggestive, the reliability of a witness' identification is not relevant for due process purposes." (Kevin) Jones, 395 Md. 97, 110 (2006) (citing (Gregory) Jones, 310 Md. at 577); see also Smiley v. State, 442 Md. 168, 180 (2015).
"Suggestiveness can arise during the presentation of a photo array when the manner itself of presenting the array to the witness or the makeup of the array indicates which photograph the witness should identify. Smiley, 442 Md. at 180 (citing (Gregory) Jones, 310 Md. at 577. In a case in which the Court of Appeals concluded that a photo array was not impermissibly suggestive, the Court explained that a photo...
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