Tibbs v. State, 2346

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Leahy, J.
Docket NumberNo. 2346,2346
Decision Date09 January 2017


No. 2346


September Term, 2015
January 9, 2017


Meredith, Leahy, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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Jason Kyle Tibbs, ("Appellant"), was charged in a fifteen-count criminal information in the Circuit Court for Dorchester County, Maryland, for the attempted armed robbery and assault of Phillip Brooks, James Brode, and Victoria Diehle. Appellant was charged after Diehle discovered a photograph of Appellant on Facebook and identified him to the police as the assailant, using that photograph.

On August 18, 2015, after the trial court denied Appellant's motion to suppress the identification evidence, Appellant was tried by a jury. The jury convicted Appellant of armed robbery of Brooks and Brode, first-degree assault of Brooks and Brode, second-degree assault of Diehle, reckless endangerment of Brooks and Brode, use of a firearm in the commission of a felony or crime of violence, and possession of a handgun. The sentencing court ultimately merged the counts of first-degree assault, reckless endangerment, and possession of a handgun, but imposed a total of 50 years' imprisonment for the outstanding convictions, which included a 20-year sentence for the use of a firearm in the commission of a felony or crime of violence conviction, to be served consecutively to the two armed robbery sentences.

Appellant timely appealed to this Court and presents the following questions for our review:

1. "Did the trial court err in denying Appellant's motion to suppress identification evidence?"

2. "Is Appellant entitled to resentencing where the State erroneously argued that the law required that the sentences for armed robbery and use of a firearm be imposed to run consecutively?"

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We affirm. We hold that under the circumstances presented in this case, the trial court correctly concluded that there was "no real misconduct on the part of the police," and therefore, the Due Process Clause did not require a preliminary judicial inquiry into the reliability of the eyewitness identifications. Further, Appellant is not entitled to resentencing because we discern no error by the sentencing court.

A. Suppression Hearing

At a hearing on Appellant's motion to suppress held on August 17, 2015, the following evidence was adduced through the testimony of Victoria Diehle, James Brode, and Detective Ed Howard.

On the evening of October 1, 2014, at around 7:00 p.m., Victoria Diehle, James Brode, Phillip Kyle Brooks, and Caleb Frampton decided to take advantage of free passes they had to go to the movies in Cambridge, Maryland. As Brode was driving the group to the theater in Brooks's car, a man approached them at a stop sign located at the intersection of High Street and Douglas Street. Diehle and Brode described the man as Caucasian and heavyset, in his thirties with red hair and red facial hair. He approached the right front passenger, Brooks, and demanded the group's wallets in a calm tone of voice while holding a gun to Brooks's neck. Diehle testified that, after members of the group showed him that their wallets were empty, the man became "a little angry" and told them to "get out of there."

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Describing this encounter further, the witnesses testified that, although it was just starting to get dark outside, the area was illuminated by street lights and the headlights of the car. Diehle agreed she was "dazed" by this confrontation, but maintained that she was staring at the red-haired man the entire time. Brode also testified that his view was "one hundred percent clear" and that he was "making sure" to stare in the direction of the man during this initial encounter.

The group decided to continue on to the movies. Diehle testified as to why they continued to the theater and did not call the police at this point:

A lot of -- me and those individuals we go through a lot so we don't usually just call the -- involving the police with anything. We've seen a lot. We've seen people shot on our streets. We live in the bad part of town so it's nothing []new to us. And none of us were hurt. None of us, you know, were injured so we didn't really see that it was really that important.

After the movie, they returned to Brode's house on High Street and went across the street to a neighbor's house. As they were outside talking to the neighbor, the same red-haired man from the earlier encounter—with another man—approached them again. However, the red-haired man seemed, according to Diehle, "a little more hysterical, more agitated." In fact, he was hostile and yelling at Brooks, again demanding money from him. Diehle and Brode believed the man must have thought Brooks was someone else.

A "fight" then ensued, in which the red-haired man was assisted by his unidentified accomplice, whom Diehle described as a "black heavyset muscular male." Diehle testified this second man "went after" Brooks while the red-haired man "went after" Brode. Both

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Brode and Brooks were hit during this incident. In fact, Brooks was struck on his ear and lip with a bottle, ultimately requiring a visit to the hospital and thirty-six stitches.

This second encounter occurred around midnight, and lasted anywhere from fifteen to twenty minutes, according to Diehle. Diehle further testified she could see "perfectly fine" because of all the nearby porch and street lights. Brode testified that there was least one street light nearby and that he was only standing about three feet away from the red-haired man as the red-haired man was attacking Brooks. In fact, Diehle testified that, at one point, she stood within six inches of this man, and was close enough to smell alcohol about his person. After the prosecutor asked her whether her view was obstructed during this encounter, specifically, "[w]as there anything between those six inches between you and he," Diehle simply replied, "[h]ostility."

After the second encounter, Brode, Brooks, and Diehle traveled to the hospital for medical treatment. The police became involved when Corporal Jeff Smith, who did not testify at trial, met with Brooks at the hospital and filled out a police report concerning the group's two violent encounters that evening. Detective Ed Howard testified that he was assigned the case the following morning.

Diehle heard from a number of friends that the red-haired man was named "Jason Tibbs." Diehle looked up that name on Facebook and found a picture that she testified "[l]ooked almost like an identical match." Diehle went to the police station the day after the encounters and spoke with Detective Howard. After Detective Howard showed Diehle a photo array, she saw someone she thought looked like the assailant but asked the

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Detective if she could look at the picture on her phone, and then showed the Facebook photograph to Detective Howard.1 When asked why she had shown the detective what was on her phone, Diehle said "[b]ecause I wanted to be sure that I wasn't going to identify somebody that wasn't the same person." The Facebook photo was admitted into evidence at the motions hearing.

On cross-examination, Diehle clarified that the second encounter with Appellant happened in her own neighborhood. Diehle continued that, when she returned from the hospital after the incident, her neighbors came over to check on her and her friends to see if they were okay, and they started talking about who they thought was the attacker, indicating that it was a person named "Jason Tibbs." Diehle testified:

[APPELLANT'S COUNSEL:] And you say these people indicated to you that it was Jason Tibbs?

[DIEHLE:] Yes, sir.

[APPELLANT'S COUNSEL:] And what did you then do?

[DIEHLE:] I look[ed] it up. I looked at Facebook before anybody said anything. I didn't really see anything except for a picture that looked identical. People started saying names. I seen the names it kind of matched. I mean there is not very many redheaded people I know around here. And it's kind of weird that a lot of people give the same name and it happens to look like the same person.

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[APPELLANT'S COUNSEL:] And as a result of this you looked up that photograph on Facebook?

[DIEHLE:] Yes, sir.

[APPELLANT'S COUNSEL:] Okay. And were you a hundred percent positive that that's the individual?

[DIEHLE:] It's almost an identical match unless there was a DNA test.

[APPELLANT'S COUNSEL:] Sorry. You say you're not a hundred percent positive?

[DIEHLE:] I mean I could look at it, look at the person they look the exact same, same eyes, same hair, same body structure. I mean I might not know the person in person but I'm pretty sure I can identify somebody by looking at them in a picture.

[APPELLANT'S COUNSEL:] You're pretty sure?

[DIEHLE:] I'm one hundred percent sure.

Diehle then testified that the photograph that she chose in Detective Howard's photo array was of an individual with "very short hair," while the Facebook photo she found was of a person with "longer hair." She continued:

The photo that he had showed me I wasn't really sure it [] was the same person, but when I showed him the photo that I had it had looked like the individual that had approached us the night before. And when I showed him that and I seen the names it was pretty obvious at that point.

Detective Howard interviewed Brode at the police station the same day of Diehle's interview. When asked during the hearing about Tibbs's Facebook photo, Brode confirmed that Detective Howard had showed him that photograph during his interview and that it was a photograph of the same person that was involved in the incidents. He testified that Diehle showed him the photograph before they went to the police station. Brode...

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