Greene v. State
| Decision Date | 09 June 2020 |
| Docket Number | No. 7, Sept. Term, 2019,7, Sept. Term, 2019 |
| Parties | Daniel Joseph GREENE v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Argued by Lisa J. Sansone (Law Office of Lisa J. Sansone of Baltimore, MD) on brief for Petitioner.
Argued by Carrie J. Williams, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Baltimore, MD) on brief for Respondent.
Argued Before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.
It is not unusual during a criminal investigation for the police, having focused on a suspect, to ask an eyewitness to the crime to attempt to identify the suspect. Such an identification procedure may take the form of a lineup, a photographic array, a one-person show-up, or display of a single photograph. The United States Supreme Court, recognizing that such procedures have the potential to be impermissibly suggestive and ultimately unreliable, has developed a constitutionally-based body of law governing police-initiated selection procedures to protect suspects from unfair identification procedures. See , e.g. , Stovall v. Denno , 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), Manson v. Brathwaite , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
Not all investigatory procedures relating to identifying a suspect, however, seek an eyewitness’s selection of a person as involved in the crime under investigation. Some police procedures seek only to obtain the suspect’s identity from someone who, though not an eyewitness to the crime, is familiar with the suspect. We are presented with such a situation in this case.
The identification at issue here arises from a murder investigation. Shortly after the murder, the investigating detectives focused on Daniel Joseph Greene, Petitioner, as the suspected killer. About the same time, the detectives discovered that a surveillance camera mounted on a building adjacent to the apartment where the murder occurred had captured a person attempting to enter the apartment around the time of the murder. The detectives were aware that the murder victim’s current girlfriend, Jennifer McKay, knew Petitioner for years and, until recently, had been in an intimate relationship with him. The detectives interviewed Ms. McKay at the police station and asked her to review the camera footage. She did so and determined that the person depicted on the videotape footage "looks like" Petitioner.
Petitioner was charged with having committed the murder. He filed in the Circuit Court for Baltimore City a motion to suppress the identification of him by Ms. McKay. Petitioner argued to the circuit court that the identification was obtained during "an impermissibly suggestive process," rendering the identification inadmissible at trial. The circuit court agreed and granted the suppression motion. The State noted a direct appeal of that decision.1
The Court of Special Appeals held that the police-initiated procedure resulting in the identification of Petitioner was not governed by constitutional criminal procedure law concerning out-of-court identifications made by an eyewitness, as the suppression court had mistakenly believed was the case. Ms. McKay’s identification of Petitioner was of an altogether different sort; it was a "confirmatory identification," not subject to constitutional scrutiny. We agree and affirm the judgment of the Court of Special Appeals.
Sometime during the early morning hours of November 29, 2017, Jon Hickey2 was murdered in his apartment in the Fells Point neighborhood of Baltimore City. At the time of his death, Mr. Hickey had been involved for roughly a month and a half in an intimate relationship with Ms. McKay. Before then, Ms. McKay had been in a five-year intimate relationship with Petitioner, whom she had known since elementary school. Ms. McKay last saw Petitioner in early November 2017, several weeks before Mr. Hickey was killed.
During their investigation of the murder, the detectives recovered surveillance videotape footage from at least one camera mounted on the rear of a house next to Mr. Hickey’s apartment.3 The videotape showed a person apparently attempting to enter the apartment. The detectives, believing the person in the videotape may be the murderer, asked Ms. McKay to come to the station to determine whether she could identify the person on the surveillance video. We describe that interview in more detail shortly. It is enough for now to note that on multiple occasions throughout the interview Ms. McKay told the police that the person in the video "looks like" Petitioner.
The suppression motion and hearing
On December 28, 2017, Petitioner was indicted in the Circuit Court for Baltimore City on a charge of first-degree murder of Mr. Hickey. Petitioner, through counsel, filed a pre-trial omnibus motion, which included a motion to suppress Ms. McKay’s out-of-court identification and expected in-court identification of Petitioner as the person depicted on the video. Petitioner argued that Ms. McKay’s out-of-court identification of him was the product of impermissibly suggestive police procedures.
Approximately twenty-five minutes of the police station interview with Ms. McKay was played at the suppression hearing. The interview began with Ms. McKay informing the police that she had communicated with Petitioner via phone earlier the day of the interview (December 4, 2017) but last saw him in person a few weeks before the murder. In response to the detectives’ questions, Ms. McKay described Petitioner’s appearance and the cars he sometimes drove.
The detectives then showed Ms. McKay brief videotape footage captured by the surveillance camera. The quality of the video was not ideal; the images were dark and grainy, and the night vision made it difficult to interpret colors. The detectives showed Ms. McKay the video several times, slowed down the speed of the video, and produced some still images of the footage.
Ms. McKay stated, early on, that the person in the video "looks like [Petitioner]" based upon the depicted person’s "build" and "beard." Ms. McKay did not speak with certainty, however. She vacillated throughout the interview, stating that the person in the surveillance video "kind of looks like [Petitioner]," "looks like him," "looks more like him," and "looks more like him than doesn’t look like him." The detectives pressed Ms. McKay to be more certain of her identification. During the interview, the following exchange occurred:
After showing the video, the detectives displayed several still images taken from the video for Ms. McKay to consider. Ms. McKay pointed to one image and said: "Like here, it doesn’t look like him." She pointed to another image and said: "but here it looks like him." When Detective Vaughn echoed Ms. McKay’s comment that the latter image "looks like him," Ms. McKay responded in the affirmative, though she added that the person in the image "looks taller" than Petitioner.
The exchange among Detective O’Connor, Detective Vaughn, and Ms. McKay paused briefly while the detectives had her sign and date the still images from the video camera and collected her cell phone data. The exchange between Detective O’Connor and Ms. McKay then resumed:
Ms. McKay testified at the suppression hearing that she has known Petitioner since elementary school and was in a sexual relationship with him from 2012 through 2017. She further testified that she did not believe the detectives had done anything to encourage her to identify Petitioner. She stated that she recognized Petitioner from the surveillance video but, given their prior relationship, she was reluctant to identify him.
Petitioner sought to suppress Ms. McKay’s identification of him as the person depicted on the surveillance camera’s videotape and still images drawn from the videotape. Petitioner argued that the detectives had engaged in impermissibly suggestive practices during the interview. Petitioner pointed to the detectives’ efforts to induce Ms. McKay to identify him without equivocation; that is, they wanted her to declare that the person detected by the video camera footage "is" Petitioner rather than merely "looks like" him. In response, the State argued that even if the detectives’...
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