Small v. State

• Decision Date: 01 March 2018
• Docket Number: No. 916, Sept. Term, 2016,916, Sept. Term, 2016
• Citation: 235 Md.App. 648,180 A.3d 163
• Parties: Malik SMALL v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

235 Md.App. 648

180 A.3d 163

Malik SMALL

v.STATE of Maryland

No. 916, Sept. Term, 2016

Court of Special Appeals of Maryland.

March 1, 2018

Argued by: Ava V. Baker (Williams & Connolly, LLP, Washington, D.C., Paul DeWolfe, Public Defender, Baltimore, MD) all on the brief, for Appellant.

Argued by: Virginia S. Hovermill (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee.

Panel: Eyler, Deborah S., Leahy, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

Leahy, J.

The victim, Mr. Ellis Lee, was waiting at a bus stop in Baltimore City at approximately 2:00 a.m. on June 17, 2015. A man, who was covering part of his face with his T-shirt, pointed a gun at Mr. Lee and told him to hand over his money. Once it became clear that Mr. Lee did not have any money, the man told Mr. Lee to run and then opened fire, striking Mr. Lee once in his right lower calf muscle as he was fleeing.

Shortly thereafter at the hospital, Mr. Lee gave a description of his assailant, noting that the man had a neck tattoo with a block-cursive "M" in it, and that he believed that he had seen him before and recognized his voice. Later that same morning, after Mr. Lee was released from the hospital, he was transported to the police station where he viewed two photo arrays. In the first photo array, Malik Small ("Appellant") was the only person featured with a neck tattoo. Mr. Lee indicated that Appellant's photo may depict the man who shot him, but said that he was not sure. Then the officers presented Mr. Lee with a second photo array, and, although this time all photos featured persons with neck tattoos of various content, Appellant's photo was only one of two that had lettering in the tattoo. More significantly, Appellant's photo was the only one repeated from the first photo array and the only one with a block cursive "M." Mr. Lee selected Appellant, stating, "This is the same tattoo and face I remember robbing me and the man I remember shooting me. I also remember him from coming into my job on two different occasions."

Prior to his jury trial in the Circuit Court for Baltimore City, Appellant moved to suppress anything arising from both of the photo arrays prepared by the Baltimore City Police Department for Mr. Lee. The suppression court, although troubled by the suggestiveness of repeating Appellant's photo in the second photo array, found by clear and convincing evidence that Mr. Lee's identification was reliable.

Appellant's first challenge—and the primary focus of this appeal—is whether the suppression court erred in denying his motion to suppress. We hold that the inclusion of Appellant's photo in the first photo array showing the distinctive "M" tattooed in cursive on his neck—where no other person had a visible neck tattoo—coupled with the fact that Appellant was the only person whose photo was repeated in the second array, rendered the identification procedure impermissibly suggestive. We conclude, however, that the totality of the circumstances surrounding Mr. Lee's identification of Appellant—including recalling the unique features of his tattoo—made it sufficiently reliable to overcome the suggestive nature of the identification procedure and forfend violation of Appellant's rights under the Due Process Clause.

At the conclusion of his trial, the jury convicted Appellant of attempted robbery, second degree assault, and reckless endangerment.

Appellant assigns error on several additional rulings by the trial court as reflected in the following issues, which we quote from Appellant's brief:

"Did the trial court err in allowing the State to impermissibly argue its opinion regarding the credibility of the Defense's sole alibi witness?"

"Did the trial court abuse its discretion when it sustained the State's objection to entry of Appellant's relevant phone records into evidence?"

"Did the trial court err by refusing to grant Appellant's motion for judgement of acquittal on the grounds that the State failed to present evidence sufficient to sustain Appellant's convictions for attempted robbery, second degree assault, and reckless endangerment?"

Discerning no error or abuse of discretion, we affirm the trial court's judgments.

BACKGROUND

A. The Hearing on the Motion to Suppress

On March 18, 2016, Appellant moved to suppress the fruit of the two photo arrays prepared and administered by the Baltimore City Police. At the outset, the court suppressed the State's use of the first photo array because Det. Stanley Ottey, the detective who administered the first photo array, was unavailable at the time of the hearing. The hearing continued then on the question of whether the second photo array should be suppressed.

Mr. Lee testified to the course of events on June 17, 2015. He stated that at about 2:00 a.m. in the morning

[I w]as sitting on the bus stop, the 36 bus stop on Northern Parkway and Alameda, had my phone in my right hand, checking my phone, and in the corner of my ear, I hear "Let me get your money." I looked to my immediate right. There's a male looking at me with a gun aimed towards me. I told him I don't have anything.... There was no wallet on me. He said, "Run, bitch." So he has a gun, so I ran.

He then "heard some shots go off and [he] felt the pluck at the back of [his] leg and [ ] kept running." He stopped briefly to call his family, and eventually he made his way to Gittings Avenue, where he sought help at the fire department located there. Mr. Lee was transported by ambulance to The Johns Hopkins Hospital emergency room. Baltimore City police officer Kenneth Howard, who was later joined by detectives Joel Hawk and Matthew DiSimone, met with Mr. Lee at the hospital and interviewed him about what happened.

Det. DiSimone testified that Mr. Lee described his attacker 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 a letter M in it.

Mr. Lee told the detectives that he believed he had seen his assailant at his job at Staples on approximately two prior occasions, but could not specify the time frame. According to Det. DiSimone, Mr. Lee recognized his assailant because of "the tattoo and his voice."

Some hours later, after Mr. Lee's gunshot wound was treated and he was released from the hospital, the detectives drove Mr. Lee to the bus stop on Northern Parkway so that he could show them exactly where the incident occurred. Afterward they drove Mr. Lee to the police station where they continued interviewing him about the crime.

1. The First Photo Array

Det. DiSimone was permitted to testify as to how he compiled the first photo array in order to give context for his testimony concerning how he generated the second photo array. He recounted that when they returned to the station on the morning of the 17th, Mr. Lee provided another description of the assailant and his tattoo.

Consulting his notes from that morning, Det. DiSimone said Mr. Lee described the assailant as "[a] light brown, black male, 5'8?, regular sized, with a scraggly beard, [and] a tattoo on his neck." And Mr. Lee described the tattoo as "[b]lock styled cursive script, bold, not dull, containing multiple letters and at least one of them was an M[.]"

Det. DiSimone then used a Baltimore City Police Department database to compile a group of mugshots to create a photo array based on the description Mr. Lee provided. He searched for males between 5'6? and 5'8? with light brown complexions and beards, but he did not include neck tattoos in the search.

Det. DiSimone confirmed that the first photo array was administered at roughly 8:30 a.m., and featured six African–American males, appearing to be around the same age, directly facing the camera. Each man had a beard and short, cropped hair. Despite Det. DiSimone's intention to leave tattoos out of the photos,¹ Appellant's photo was the only photo in the array with a tattoo visible on the side of his neck. The tattoo, shown from the front, displayed a cursive "M".

Mr. Lee testified that the detectives brought him "a collection of pictures on the first sheet." He recalled that, "I picked out one who kind of looked like him, but I wasn't too sure. I was, like, okay, I see the tattoo. I remember there being a LYM tattoo." The court asked:

THE COURT: You mean you saw the tattoo on the picture or you saw the tattoo—

MR. LEE: Yeah.

THE COURT: —on the person?

MR. LEE: The tattoo on the neck, I just related the two. I was like, oh, it looks pretty much like the same tat I saw. I identified the person, but I told them, I was like, "He was covering his face with the shirt." I'm not going to give you 100 percent of somebody's life in my control. He said, "Okay. I understand." I gave him in terms of 80 percent sure.

Det. Ottey, who administered the photo array, noted Mr. Lee's statement on the Photograph Array Action form: "# 2 looks like him, doesn't think it's him." Det. DiSimone testified that the first photo array was a "negative array," meaning that a positive identification had not been made.

2. The Second Photo Array

After the conclusion of the first photo array, Mr. Lee gave another taped statement at 11:16 a.m. Det. DiSimone testified that he conducted the interview, and that he relied on Mr. Lee's description of the tattoo in creating the second photo array. Using the same database, he inserted the parameters: "[b]lack male, light brown skin, and [ ] tattoo on neck." When asked whether the search parameters included tattoos with letters, Det. DiSimone testified that some of the tattoos may have had letters, while others did not. When pressed by the court on this point, Det. DiSimone testified that he did not include tattoos with letters as part of his search parameters.

He explained that this was because the number of people who had tattoos and met other parameters, such as light brown skin, was very small. From the limited number...