Smith v. State

• Decision Date: 15 September 2004
• Docket Number: No. 330,330
• Citation: 857 A.2d 1198,158 Md. App. 673
• Parties: James SMITH and Jason Mack v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

857 A.2d 1198

158 Md. App. 673

James SMITH and Jason Mack v. STATE of Maryland.

No. 330, Sept. Term, 2003.

Court of Special Appeals of Maryland.

September 15, 2004.

Allen E. Burns (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Shannon E. Avery (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for Appellee.

Panel: DAVIS, EYLER, JAMES R., ADKINS, JJ.

JAMES R. EYLER, J.

On February 24-25, 2003, James Smith ("Mr. Smith") and Jason Mack ("Mr. Mack"), appellants, were tried together by a jury in the Circuit Court for Baltimore City. Mr. Smith was convicted of attempted robbery, assault in the second degree, and attempted theft of under five hundred dollars. After merging the assault and attempted theft convictions, the court sentenced Mr. Smith to six years' imprisonment, all but two years suspended, followed by three years' probation, for the attempted robbery conviction. Mr. Mack was convicted of attempted robbery, assault in the first degree, and attempted theft of under five hundred dollars. After merging the assault and attempted theft convictions, the court sentenced Mr. Mack to six years in prison for the attempted robbery conviction.

On appeal, appellants seek to have their convictions reversed, based on alleged errors by the trial court. The victim of the crime, who is White, identified appellants, who are African American, as the assailants. Appellants argue that the court erred in refusing to instruct the jury on the difficulties of cross-racial identification. In addition, appellants argue that the court erred in barring defense counsel from referring to the difficulty of cross-racial identification in closing argument.

Perceiving no reversible error, we shall affirm the judgments of the circuit court.

Facts

The following testimony was adduced at trial. Christine Crandall ("Ms. Crandall") testified for the State that she arrived at her home in the Fells Point area around 10:30 p.m. on the night of May 8, 2002. As she secured the gate to the area where she parked, she noticed two men walking towards her on the other side of the street. She said, "Hey guys," and testified that they appeared "normal." She stated that, "[t]hey looked great. They looked fine." Ms. Crandall described Mr. Smith as wearing a gray baseball hat and a "grayish long baggie sweat shirt and long oversized pants." She said Mr. Mack was wearing a "dark bluish" sweat shirt, jeans, and no hat. Ms. Crandall testified that there were street lights, so she could see Mr. Smith's face, despite his hat, and that his features made him "pretty distinctive looking."

When the men approached Ms. Crandall, Mr. Smith grabbed the hand in which Ms. Crandall held her car keys, but she maintained a tight fist around the keys. Mr. Mack held a gun, and said, "[g]ive me your keys, bitch. I'll shoot you." Ms. Crandall maintained eye contact with Mr. Mack as she repeatedly said, "[y]ou don't want to do this."

Ms. Crandall's neighbor, Mary Jo Slowey, interrupted the robbery when she called from her second-floor window to ask if Ms. Crandall was okay. Ms. Crandall said, "call 911, they have got a gun." Following this interaction, both men started to walk away, but Mr. Mack turned and pointed the gun at Ms. Crandall again. Ms. Crandall testified that she was able to observe his face and his eyes again, and that the entire incident lasted about four minutes.

Ms. Crandall testified that she was certain that appellants were the individuals who attempted to rob her. She explained her certainty by stating that, "I'm extremely good with faces." She testified that her background in art and "painting people" led her to look for distinctive physical features and postures in people.

Detective Randolph Wynn testified that he was assigned to the investigation of the attempted robbery. Two days after the incident occurred, Detective Wynn met with Ms. Crandall and showed her a photo array, including a photo of an individual whom he believed might have been involved in the attempted robbery.¹ Ms. Crandall wrote on the photos "Out of these 6 photos, I do not recognize the ones who attempt[ed] to car jack me."

Detective Wynn continued to investigate possible suspects, and following the receipt of certain information, prepared two additional photo arrays, which included pictures of each appellant. On May 23, 2002, from these photo arrays, Ms. Crandall identified Mr. Mack as the man who held the gun, although she noted that his hair was different,² and she identified Mr. Smith as the man who tried to take her keys. On the back of Mr. Mack's photo, Ms. Crandall wrote "He looks very much like the man who had the gun and attempted to rob me. The hair is changed but still looks like the man." On the back of Mr. Smith's photo, she wrote, "This looks like the man wearing the hat that attempted to rob me. He tried to take the keys from my hand while the other man held the gun to me." Detective Wynn testified that when Ms. Crandall identified Mr. Mack, she said she was sure he was the person who pointed the gun at her, and when she identified Mr. Smith, she said she was sure he was the person who tried to take her keys.

Ms. Crandall's neighbor, Mary Jo Slowey, testified that when she looked out her window to check on Ms. Crandall, she could see that there were two people on the street with Ms. Crandall, but she could not tell the race or gender of the two individuals.

Officer Kevin Evans testified on behalf of Mr. Smith, stating that when he responded to the call about the attempted robbery, Ms. Crandall stated that she could draw a sketch of the armed suspect, but not the unarmed suspect.

Following their convictions and sentencing, appellants filed a timely appeal to this Court.

Questions Presented

Appellants raise the following two questions on appeal:

1. Did the trial court err in refusing to instruct the jury on cross-racial identification?

2. Did the trial court further err in barring defense counsel from referring in closing argument to the difficulty of cross-racial identification?

Discussion

Jury Instructions

At the outset, we want to make it clear that this case is not about the reliability of eyewitness testimony generally. This subject has been addressed in many cases, law review articles, reports on the results of studies, and treatises. With respect to cases, see, e.g., Manson v. Brathwaite, 432 U.S. 98, 111-112, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)

(discussing "the [Supreme] Court's concern with the problems of eyewitness identification."); U.S. v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ("The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification."); Vitauts M. Gulbis, J.D., Annotation, Necessity of, and prejudicial effect of omitting, cautionary instruction to jury as to reliability of, or factors to be considered in evaluating, eyewitness identification testimony — state cases, 23 A.L.R.4th 1089 (1983). Some cases specifically discuss the cross-racial issue, in addition to the general issue of problems associated with eye-witness identifications. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 73, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)(Blackmun, J., dissenting)(citing to an article discussing a study, which found that "[c]ross-racial identifications are much less likely to be accurate than same race identifications.")

We have not attempted to compile a list of all the relevant studies relating to the subject of eyewitness identification, generally, or to cross-racial identification, specifically. There is, however, an extensive list of references relating to cross-racial identification at the end of an article by Wells and Olsen, discussed in detail below. See also John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 AM. J.CRIM. L. 207 (2001) (discussing both studies and court opinions addressing cross-racial identification). Some courts, in the opinions cited below, discuss studies relating to the general subject of eyewitness identification, in addition to studies relating to the cross-racial issue.³

In this case, as discussed below, the jury was instructed with respect to the issue of eyewitness identification. The issue before us is whether a special instruction was required identifying race as a factor and, specifically, the difficulty of cross-racial identification.

Appellants contend that the trial court erred in denying their requested instruction on cross-racial identification. The requested instruction was as follows:

In this case the identifying witness is of a different race than the defendant. In the experience of many it is more difficult to identify members of a different race than members of one's own. If this is also your experience, you may consider it in evaluating the witness's testimony. You must also consider, of course, whether there are other factors present in this case which overcome any such difficulty of identification. For example, you may conclude that the witness had sufficient contacts with members of the defendant's race that he would not have greater difficulty in making a reliable identification.

The proposed instruction was a quote from a concurring opinion in United States v. Telfaire, 469 F.2d 552, 561 (D.C.Cir.1972). The trial court in this case refused to propound the requested instruction, instead propounding Maryland Criminal Pattern Jury Instructions, MPCJI-Cr 3:30,⁴ relating to the identification of a defendant. This instruction does not specifically refer to cross-racial identification as a factor to be considered in determining the reliability of the identification. The court explained that the pattern jury instructions "related to the totality of facts that were presented in this case." Appellants assert that the court's rationale in denying the requested instruction was based on the fact that the defense had...