Turner v. State, 1611, September Term, 2007.

CourtCourt of Special Appeals of Maryland
Citation184 Md. App. 175,964 A.2d 695
Docket NumberNo. 1611, September Term, 2007.,1611, September Term, 2007.
PartiesLance Michael TURNER v. STATE of Maryland.
Decision Date04 February 2009
964 A.2d 695
184 Md. App. 175
Lance Michael TURNER
STATE of Maryland.
No. 1611, September Term, 2007.
Court of Special Appeals of Maryland.
February 4, 2009.

Stacy W. McCormack (Nancy S. Forster, Public Defender on the brief), Baltimore, for Appellant.

James E. Williams (Douglas F. Gansler, Atty. Gen. on the brief), Baltimore, for Appellee.

Panel: HOLLANDER, GRAEFF, CHARLES E. MOYLAN, JR., (retired, specially assigned), JJ.

CHARLES E. MOYLAN, JR., Judge, retired, specially assigned.

The appellant, Lance Michael Turner, was convicted by a Washington County jury, presided over by Judge Frederick C. Wright, III, of reckless endangerment. On this appeal, he raises the single contention that Judge Wright erroneously failed to suppress evidence of an extrajudicial identification made of him by a State's witness.

The contention evokes nostalgic memories of a period between 30 and 40 years ago when the constitutional law bearing on extrajudicial identification was at the front and center of legal consciousness. The juridical celebrity of the subject first rose and then fell in the decade between June of 1967 and June of 1977. It was in that time a regular centerpiece at all continuing legal education seminars. As will be seen as our analysis unfolds, however, that once vital concern has more recently been reduced to little more than a sideshow, now a

964 A.2d 696

matter far more for jury argument than for constitutional exclusion.

A Stupid Fight on the Parking Lot of a Bar

Driven by nothing more rational than an excess of testosterone mixed with an excess of alcohol, two young men got in a fight over nothing with three other young men on the early morning of September 1, 2006, on the parking lot of Barefoot Bernie's Bar in Hagerstown. Bryan Sprankle and Brian Aleshire had both been celebrating their birthdays with a group of friends at Barefoot Bernie's. The two of them had been drinking throughout the course of the evening and stayed at the bar until closing time.

As they adjourned their celebration and poured out onto the parking lot, they crossed the path of the appellant and two other young men. A casus belli arose as the threesome "spoke" to Brian Aleshire. He, in turn, "spoke" back. The nature of the conversation was presumably belligerent, for it provoked an immediate fight between the two camps. In the course of the melee, the appellant struck Bryan Sprankle several times over the head with a golf club. That was the corpus delicti of reckless endangerment. Sprankle himself never saw the person on the other end of the club. For the State, the critical challenge was the identification of the appellant as the wielder of the golf club.

The Extrajudicial Show-Up

Officer Andrew Lewis arrived at the fight scene at one a.m. He was dispatched there for "some type of assault or fight involving a golf club." He found Bryan Sprankle bleeding profusely from the head. He learned that Brian Aleshire had been assaulted as well. Both Sprankle and Aleshire were transported by ambulance to the Washington County Hospital.

Officer Lewis then took from the scene to the police station the appellant, not yet necessarily as a suspect but as a "person [they] needed to talk to about the incident." It was while the appellant was at the police station that the one-on-one show-up took place. Meanwhile, back at the hospital, Aleshire was being arrested for the malicious destruction of property and taken into custody. Officer Lewis was sent to the hospital to pick him up and bring him to the police station. Aleshire was intoxicated.

During the ride back to the station, Officer Lewis told Aleshire that the police "had a subject at the building that was possibly involved in the altercation." When the two of them then pulled up in front of the station, the appellant was "standing on the east side ... next to Officer Duffey." Officer Lewis then asked Aleshire "if the subject standing beside Officer Duffey was involved in the fight." Aleshire insisted, "Yes. He was the one with the golf club." Officer Lewis asked Aleshire if he was "sure about this." Aleshire insisted that he was "a hundred per cent sure." At the pretrial suppression hearing, Officer Lewis testified and there was argument from both counsel. Judge Wright ruled that the identification was admissible. This appeal timely followed.

The Extrajudicial Show-Up

Beginning with the promulgation of the Wade-Gilbert-Stovall trilogy on June 12, 1967, the constitutionality of extrajudicial identifications shot into prominence and then dominated the center stage until its run ended ten years and four days later with the promulgation of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140. Early in the run, following the lead of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967),

964 A.2d 697

and relying on an accused's Sixth Amendment right to counsel at any critical stage, the exclusion of identification evidence as a matter of constitutional law was in high vogue. That exclusionary trend, however, ebbed significantly with the holding in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), that a suspect placed in a pre-indictment, as opposed to a post-indictment, line-up did not yet enjoy the protection of the Sixth Amendment. Whatever little wind still propelled the exclusionary sails after Kirby effectively drifted away with the holding in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), that even a post-indictment exhibition of a photograph of a suspect, either in a group picture or as part of an array of individual photographs was, unlike standing the suspect in a live line-up, not a critical stage. Under the combined impact of Kirby and Ash, the post-indictment line-up essentially disappeared from the world of criminal investigation, and with it any significant exclusion of identification evidence based on the Sixth Amendment's right to counsel. The once familiar line-up parade of stage and screen has been retired to the Smithsonian. Creative law enforcement procedures effectively finessed the Sixth Amendment.

Whatever vitality the Wade-Gilbert-Stovall trilogy still retained after 1973 was by virtue of its third member, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Unlike Wade and Gilbert, Stovall was grounded in the due process clause of the Fourteenth Amendment rather than in the right to counsel of the Sixth Amendment. In one sense, a due process claim under Stovall enjoyed much broader coverage than a right to counsel claim under Wade and Gilbert because a due process claim is not limited to post-indictment procedures and does not require that the procedure be considered a critical stage. On the other hand, whereas a Sixth Amendment violation results in virtually automatic exclusion of the identification, a due process violation only occasionally does so. Instead of exclusion, an arguable due process violation generally calls for a balancing of competing factors under a "totality of circumstances" approach, and this is, far more often than not, a weighing function for a jury rather than an exclusionary function for a judge. In his opinion in Webster v. State., 299 Md. 581, 602, 474 A.2d 1305 (1984), Judge Orth highlighted the difference in the constitutional lenses that can be trained upon an identification procedure.

We emphasize what is obvious from the Supreme Court's opinions. It has fashioned two sets of exclusionary rules with respect to the admission of evidence tainted by reason of having as its source a confrontation which is constitutionally infirm. One set concerns those confrontations at which the right to counsel was not satisfied. The other applies to those confrontations which infringed the right to due process. Although the factors to be considered in applying the rules are similar, the two sets call for different standards and are separate and distinct.

(Emphasis supplied).

In Stovall v. Denno itself, the Supreme Court did not hold that the questionable identification evidence there should be suppressed. It rather affirmed the legitimacy of that one-on-one show-up in a hospital room on the ground that it, albeit unquestionably suggestive, was necessary and, therefore, not impermissible. By its very nature, of course, a one-on-one show-up is suggestive, just as 99 out of every 100 judicial or in-court identifications are suggestive. (It is always a good bet that the person the witness is being asked to identify is the guy sitting at the trial table who is not dressed like a lawyer.) A jury,

964 A.2d 698

however, is perfectly capable of weighing the pluses and minuses of such an identification. That is why mere suggestiveness does not call for exclusion. Stovall pointed out that it is not a due process violation per se that an identification procedure is suggestive. It must be not only suggestive, but impermissibly suggestive. Many self-evidently suggestive one-on-one show-ups shortly after a crime has occurred are deemed to be permissibly suggestive, and therefore unoffending, because of the exigent need to take quick action before the trail goes cold. See Billinger v. State, 9 Md.App. 628, 636-37, 267 A.2d 275, cert. denied, 259 Md. 729 (1970).

Within a year after Stovall v. Denno, moreover, the due process test was fine-tuned still further by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Simmons made clear that evidence will not be excluded unless the identification procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. at 384, 88 S.Ct. 967 (emphasis supplied). With Simmons the focus turned to the ultimate reliability of the identification in question. If the identification is reliable, it, by definition, is not a misidentification. Under...

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