Small v. State

• Decision Date: 24 June 2019
• Docket Number: No. 19, Sept. Term, 2018,19, Sept. Term, 2018
• Citation: 211 A.3d 236,464 Md. 68
• Parties: Malik SMALL v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

464 Md. 68

211 A.3d 236

Malik SMALL

v.STATE of Maryland

No. 19, Sept. Term, 2018

Court of Appeals of Maryland.

June 24, 2019

Argued by Ava V. Baker, Assigned Public Defender (Williams & Connolly, LLP, Washington, DC; Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner.

Mark Murphy, Esquire, Steptoe & Johnson, LLP, 1330 Connecticut Avenue, NW, Washington, DC 20036, James L. Brochin, Esquire, Brochin Law PLLC, 299 Park Avenue, 16th Fl., New York, NY 10171, Richard C. Tarlowe, Esquire, Marques S. Tracy, Esquire, Johan E. Tatoy, Esquire, Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, NY 10019, for Amici Curiae Brief for the Innocence Project, Inc. and The University of Baltimore Innocence Project Clinic In Support of Petitioner.

Argued by Virginia D. Hovermill, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J. Greene,^* Adkins, McDonald, Watts, Hotten, Getty, JJ.

Greene, J.

Ordinarily, the reliability of relevant evidence is a matter committed to the province of the jury. There may, however, be a reliability question concerning evidence of eyewitness identifications challenged on due process grounds. In such cases, the court will review an identification's reliability in the first instance if law enforcement procured the identification utilizing suggestive procedures. The matter before this Court concerns such a due process reliability inquiry.

Petitioner Malik Small ("Petitioner" or "Mr. Small") alleges that evidence of an out-of-court identification procedure, through which the victim of an assault identified Petitioner as the perpetrator of the crime, should have been suppressed because it violated his right to due process of law. We begin by reviewing and reaffirming the well-settled test for assessing the admissibility of evidence of extrajudicial eyewitness identifications. Applying that test to the facts of this case, we conclude that the challenged identification contained sufficient indicia of reliability to overcome the suggestive nature of the pretrial identification procedures. Therefore, we shall affirm the judgment of the Court of Special Appeals.

FACTUAL & PROCEDURAL BACKGROUND

On June 17, 2015, a man tried to rob, and ultimately shot, Ellis Lee ("Mr. Lee") at a bus stop in Baltimore City. Following the incident, the Baltimore City Police Department administered two photo arrays to Mr. Lee, which resulted in his identification of Petitioner Malik Small as the assailant. The State charged Mr. Small with a 10-count indictment in the Circuit Court for Baltimore City. Before the matter proceeded to trial, Mr. Small moved to suppress evidence of the two extrajudicial photographic array identification procedures. On March 18, 2016, the Circuit Court for Baltimore City held a suppression hearing to assess the admissibility of evidence of the identification procedures.

The Suppression Hearing

At the outset, the suppression court ruled that evidence of the first photo array could not be admitted by the State against Mr. Small at his trial.¹ The State and Mr. Small's counsel were, however, permitted to produce evidence of the first array during the suppression hearing in order to provide context for the second photo array. The hearing proceeded on the question of whether the second photo array would be admissible in evidence at Mr. Small's trial.

During the hearing, Mr. Lee recalled the incident that occurred on June 17, 2015. He testified that, at 2:00 a.m., he was sitting at a bus stop on Northern Parkway in Baltimore City looking at his cell phone when a man approached him. The man stood approximately one foot away from Mr. Lee, pointing a gun at Mr. Lee and covering the bottom portion of his face with a white T-shirt. The man said, "Let me get your money." Mr. Lee emptied his pockets and told the man that he did not have any money. The man said, "Run, bitch," so Mr. Lee ran away. As Mr. Lee fled, the man fired the gun, and one bullet struck the back of Mr. Lee's right leg. Mr. Lee made it to Gittings Avenue where he was met by an ambulance that transported him to the emergency room at Johns Hopkins Hospital.

While describing the incident during the suppression hearing, Mr. Lee testified that he noticed the gun before he saw the face of the man holding it. The assailant, Mr. Lee said, was covering the bottom portion of his face up to his nose with a white T-shirt, but his neck was exposed. Mr. Lee recalled that it was dark outside, but there was a very dark orange street light shining on the man, which made it "kind of easier to see him." His interaction with the assailant, Mr. Lee estimated, lasted "two minutes at most."

At the hospital, Mr. Lee was interviewed by three detectives, including Detective Matthew DiSimone, the lead investigator on the case. Detective DiSimone testified that Mr. Lee described the assailant as "a black male, light skin, believed he had seen him before, a light [T]-shirt, tattoo on the right side of his neck, 5'8?, regular sized, a short haircut. He held the bottom of his shirt up over his face, blue jeans, block letter tattoo on neck, had letter ‘M’ in it." Mr. Lee believed he had seen the assailant twice before the incident at Staples, where Mr. Lee worked, because he recognized the assailant's voice and tattoo. Mr. Lee did not describe their interactions at Staples, and he did not know the assailant by name.

After Mr. Lee was released from the hospital, Detective DiSimone and Mr. Lee revisited the scene of the crime. Then, they drove to the Northern Police District. According to Detective DiSimone, Mr. Lee gave another description of the assailant at the police station. Mr. Lee described the assailant as "a light brown, black male, 5'8?, regular sized, with a scraggly beard, a tattoo on his neck." He also described the tattoo "in detail," as being "[b]lock styled cursive script, bold, not dull, containing multiple letters and at least one of them was an ‘M.’ "

Detective DiSimone used a police database to compile mugshots to be included in a "photo array identification procedure."² To compile the array, he searched for men with light brown complexions and beards, who were between 5'6" and 5'8". He did not look for men with neck tattoos. Ultimately, the first array included six pictures – Petitioner's photo and five filler photos.³ Detective DiSimone included one front-facing photo of each person in the first array in order to keep the tattoo out of view. "[He] felt that the tattoo was described in so much detail that it would be leading if [he] put the tattoo in the picture." Despite Detective DiSimone's intentions, the "M" tattooed on Petitioner's neck was plainly visible in Petitioner's photograph.⁴ Petitioner was the only person depicted in the first array who had a visible neck tattoo.

After compiling the array, Detective DiSimone printed the six photographs and array instructions, which were to be read to Mr. Lee. He gave the photos and instructions to Detective Stanley Ottey, the administrator for the first photo array. A blind procedure⁵ was used to administer the first photo array. Detective Ottey was not involved in the investigation, and neither Detective Ottey nor Mr. Lee was advised of the identity of the suspect. Detective Ottey administered the first photo array at 8:37 a.m. During the procedure, Detective Ottey made notes about Mr. Lee's statements. In reference to Petitioner's photo, Detective Ottey wrote that Mr. Lee said he "looks like [the assailant], doesn't think it's him."

Mr. Lee testified that during the first array, "[he] picked out one who kind of looked like [the assailant], but [he] wasn't too sure." He remembered seeing "[t]he tattoo on the neck, [he] just related the two ... it look[ed] pretty much like the same tat[too] [he] saw [during the incident]." Yet, Mr. Lee explained that the assailant was covering his face during the incident, so Mr. Lee said, "I'm not going to give you 100 percent of somebody's life in my control .... I gave him in terms of 80 percent sure." The parties stipulated to the fact that Mr. Lee could not make a positive identification during the first array.

After the first array, Mr. Lee gave another statement to Detective DiSimone. Then, Detective DiSimone compiled the second photo array. Detective DiSimone believed that "if a second array was shown containing side profile pictures, which gave a view of the tattoo, it might assist in ... identification." To compile the second array, Detective DiSimone searched for photos of men with light brown skin and a beard. This time, he also looked for photos of men with a tattoo on their neck. He explained that the database had a small selection of individuals with neck tattoos, so he did not specifically look for tattoos with letters. Ultimately, the second array included twelve pictures – two photos⁶ each of six individuals. Petitioner was included with five new fillers, making Petitioner the only individual from the first array who was repeated in the second array.⁷ All of the fillers in the second array had a tattoo on their neck.⁸ In addition to Petitioner, at least one filler had a tattoo that contained letters. None of the fillers had a tattoo with the letter "M" in it.

The second array was administered by Sergeant Detective Ethan Newberg using a blind procedure. Sergeant Newberg was not involved in the investigation, and he did not know who the suspect was. Likewise, Mr. Lee was not advised whom law enforcement suspected was the assailant. Sergeant Newberg conducted the procedure at approximately 11:45 a.m. in an office where only he and Mr. Lee were present. Sergeant Newberg explained that he read Mr. Lee a set of array instructions, then he showed Mr. Lee all twelve photographs. During the procedure, Sergeant Newberg made notes of Mr. Lee's statements. In reference to Petitioner's photo, Sergeant Newberg testified that, according to...