Jones v. State

Decision Date16 September 1987
Docket NumberNos. 72,s. 72
Citation310 Md. 569,530 A.2d 743
PartiesGregory JONES v. STATE of Maryland. Sept. Term 1985 and 122 Sept. Term 1985.
CourtMaryland Court of Appeals

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender, on brief), Baltimore, for appellant.

Valerie J. Smith, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on brief), Baltimore, for appellee.

Before MURPHY, C.J., and SMITH, * ELDRIDGE, COLE, RODOWSKY, COUCH * and McAULIFFE, JJ.

MURPHY, Chief Judge.

Gregory Jones was charged in the Circuit Court for Baltimore County with the first degree murder of Charles Jordan; the first degree murder of Lisa Brown; attempted murder of, and assault with intent to murder, Linda Jordan; robbery with a deadly weapon; and use of a handgun in the commission of a crime of violence. The State gave timely notice of its intention to seek the death penalty for the first degree murders.

At a jury trial before Judge James S. Sfekas, evidence was adduced that at 1:15 a.m. on October 20, 1984, two men gained entry to the Jordans' residence, handcuffed Charles Jordan to his eighteen-year-old stepdaughter, Lisa Brown, and caused them to lie on the floor. The men also handcuffed Mrs. Jordan's hands behind her and made her kneel. At this point, Jones entered the Jordans' house and demanded drugs and money. Referring to Jones as "Greg", Charles Jordan asked him why he was "doing this", to which Jones said: "I'm tired of people fucking over me." After Jones took four pieces of jewelry from Mrs. Jordan, he fired two shots through a pillow into the back of Charles Jordan's head, killing him. In the same manner, Jones murdered Lisa Brown. He also fired two shots through a pillow into Linda Jordan's head, after which Jones and his two companions left the Jordans' residence.

Upon realizing that she had only been wounded, and could move, Mrs. Jordan attempted unsuccessfully to telephone for help. Thereafter she decided to leave her residence and seek the assistance of neighbors. As she opened her front door, she again encountered Jones, who was attempting to reenter the premises. Mrs. Jordan slammed and locked the front door. Subsequently, shots were fired at her through the back glass door, striking her in the leg. She fell to the floor and remained still for several minutes after which she left her home and called police by phoning from an unoccupied nearby residence.

Mrs. Jordan testified that she knew Jones as an acquaintance of her husband. Although asked by the police at the time of the crimes whether she could identify the murderer, she initially gave only a vague and sketchy description of him; she did not then name Jones as the perpetrator of the offenses. She testified that she did not immediately identify Jones because she wanted first to determine the condition of her husband and daughter. Upon learning of their deaths, Mrs. Jordan called the police to her hospital room where she identified Jones by name as the killer.

Other corroborative evidence was adduced linking Jones to the murders. Jones did not testify in his own behalf; his defense was that he was not present and was not involved in the crimes. The jury convicted him of all counts and subsequently, at a separate sentencing hearing, imposed the death penalty for the two first degree murders.

I

Jones contends that the trial court erred when, at a pretrial hearing to suppress Mrs. Jordan's extrajudicial photographic identification of him, it refused to permit inquiry into whether she "was under the influence of alcohol or drugs at the time of the offenses." No claim is made that, at trial, Jones was prevented from cross-examining Mrs. Jordan with respect to her use of such substances at the time of the crimes.

The record discloses that two days after the crimes were committed, while Mrs. Jordan was in the hospital, she was shown an array of six photographs, including one of Jones. She selected Jones's photograph within five seconds of its being shown to her. She stated that she was positive that Jones was the murderer.

Jones's motion to suppress the photographic identification was based on the argument that it was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification" and, therefore, should be suppressed. Defense counsel extensively interrogated Mrs. Jordan at the pretrial hearing concerning the crimes and her subsequent identification of Jones. Even though she answered a number of questions calculated to test her powers of observation and recognition, the court sustained the State's objection to the question whether Mrs. Jordan had taken drugs or imbibed alcohol on the night of the murders.

In denying Jones's motion to suppress, the trial court concluded that there was nothing suggestive in the photographic array or in the manner in which the police conducted the photographic identification session at the hospital. It emphasized the reliability of the identification, noting that Mrs. Jordan had an excellent opportunity to observe the assailants and that the photographic identification occurred only two days after the crimes were committed. The court concluded that the identification involved no violation of due process, and that it was for the jury at trial to determine the weight to be accorded to the extrajudicial identification.

Before us, Jones does not assail the composition of the photographic array or the conduct of the photographic identification session. Nor does he take issue with the trial court's conclusion that the extrajudicial identification procedure was not suggestive. He now argues that the primary issue at the suppression hearing was the reliability of Mrs. Jordan's photographic identification, with her credibility constituting an important subsidiary issue. In this regard, Jones points out that Charles Jordan had cocaine in his system at the time he was killed; that Charles was a narcotics dealer; and that $14,000 in cash from narcotics transactions was found in Charles's bedroom, part of which Mrs. Jordan claimed as her own.

As Jones's suppression motion was clearly based on a claim of impermissible suggestiveness, the issue to be considered is whether the excluded question had any relevance in establishing this claim. We think it did not.

The Supreme Court has frequently examined the scope of due process protection against evidence derived from suggestive, out-of-court identification procedures. E.g., Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). "[D]ue process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures." Moore v. Illinois, 434 U.S. 220, 227, 98 S.Ct. 458, 464, 54 L.Ed.2d 424 (1977), quoted in Webster v. State, 299 Md. 581, 599-600, 474 A.2d 1305 (1984).

In Webster, we reviewed the law pertaining to suggestive pretrial identifications, noting that the cases establish a two-stage inquiry for due process challenges to extrajudicial identifications. Accord Evans v. State, 304 Md. 487, 498, 499 A.2d 1261 (1985). The first question is whether the identification procedure was impermissibly suggestive. Evans, supra, 304 Md. at 498, 499 A.2d 1261. "Suggestiveness" exists where "[i]n effect, the police repeatedly said to the witness, 'This is the man.' " Foster v. California, supra, 394 U.S. at 443, 89 S.Ct. at 1129 (emphasis in original). If the out-of-court identification was not made under suggestive circumstances, the due process inquiry ends: both judicial and extrajudicial identification evidence is admissible. Webster, supra, 299 Md. at 620, 474 A.2d 1305 (determination that lineup was in no way suggestive is dispositive of due process claim).

If, on the other hand, the identification was tainted by suggestiveness, the inquiry progresses to the second stage. Here, the court assesses whether, under the totality of circumstances, the identification was reliable. The factors to be used in determining reliability include:

"(i) the opportunity of the witness to view the criminal at the time of the crime;

(ii) the witness' degree of attention;

(iii) the accuracy of the witness' prior description of the criminal;

(iv) the level of certainty demonstrated by the witness at the confrontation;

(v) the length of time between the crime and the confrontation."

Webster, supra, 299 Md. at 607, 474 A.2d 1305. In deciding whether to suppress evidence of the identification, the court then weighs the reliability of the identification against the "corrupting effect" of the suggestiveness. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253; see Webster, supra, 299 Md. at 607, 474 A.2d 1305 (explaining in detail the second stage).

In the context of a pretrial photographic identification, a witness's reliability is not relevant for due process purposes, unless and until the defendant establishes that the identification procedure was in some way suggestive. Jones failed in this endeavor. As already indicated, the trial court carefully reviewed both the testimony and the photograph array itself in concluding that no suggestiveness tainted Mrs. Jordan's identification of the photograph. Consequently, the reliability of the identification simply was not at issue during the suppression hearing.

Nor was the excluded question relevant to Mrs. Jordan's credibility in identifying Jones's photograph at the hospital. Sustaining the State's objection to the inquiry in question was within the sound discretion of the...

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