Wood v. State Of Md., 1378
| Decision Date | 03 November 2010 |
| Docket Number | No. 1378,1378 |
| Parties | THOMAS WOOD, JR. v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Case No. 1378, Sept. Term, 2009
Opinion by Moylan, J.
The leitmotif of this opinion is that the unreliability of an extrajudicial identification is not an exclusionary factor. It is rather the case that the reliability of such an identification is an ameliorative factor that precludes exclusion. Although both items are, to be sure, related in one way or another to the phenomenon of sinking, we must not confuse the lifeboat with the torpedo. The purpose of a reliability inquiry can only truly be understood when constitutional identification law is viewed in historic perspective. The danger is that zealous advocates, particularly after a generational change, will cherry-pick choice sentences and phrases from the old cases and then misapply them to situations totally foreign to the context that originally gave them life.
Contrary to the first contention, the evidence abundantly supported both convictions. A brief summary of it will help to place the other contentions in understandable context.
An armed holdup was committed at the Kent Island Texaco Station at 400 Thompson Creek Road in Stevensville, Queen Anne's County, on December 13, 2008, at approximately 2:00 A.M. The lone clerk on duty, Thomas Davidson, described his assailant as an African-American male approximately six feet tall, weighing about 250 pounds, and wearing all black clothing. The assailant was armed with what appeared to be a black handgun. He demanded money. Mr. Davidson turned over money from both the cash register and the store safe. The robber also took several packs of Newport cigarettes.
At just about that time, James Taylor, a newspaper delivery man, observed a suspect run from the Texaco Station to an SUV (a sport utility vehicle) and drive quickly away from the area. Surveillance cameras captured a picture of the SUV, which appeared to be a silver Lincoln Aviator. It was parked at the gas pumps during the commission of the robbery. The video camera showed the SUV leaving the scene, headed westbound.
Corporal Eric Ferber of the Maryland Transportation Authority Police subsequently retrieved data from the Homeland Security cameras on the William Preston Lane Bridge (the Bay Bridge). They revealed a Lincoln Aviator SUV heading westbound over the bridge with Maryland tags 961M179 at approximately 2:00 A.M. on December 13. The tags were registered to the appellant, Thomas Wood, Jr., living at 1275 Kitmore Road in Baltimore City.
The appellant's MVA photo showed that he matched the description given by Mr. Davidson. From a photo array, Mr. Davidson was able to pick out the photograph of the appellant as "looking like" the man who robbed him. A subsequent search of the appellant's Lincoln Aviator SUV produced a black.177 caliber Marksman air pistol. The agreed statement of facts further recited that Mr. Davidson, after seeing the appellant in person, would have identified him in the courtroom as his assailant.
The second robbery was committed two weeks later, on December 27, 2008, at the Xtra Mart at 46380 Ocean Highway in Queenstown, Queen Anne's County. Christine Middleton was the clerk on duty and Michelle Mogavero was also present at shortly after midnight, when an African-American male, approximately six feet tall and weighing "in excess of200 pounds," entered the store. He pointed a black handgun at Ms. Middleton and ordered her to lie on the floor. He went through her purse, from which he removed two checks. He also took cash from the cash register and Newport cigarettes.
Both Ms. Middleton and Ms. Mogavero selected a photograph of the appellant from a photo array as "most resembling" the robber. Both witnesses stated, after seeing the appellant, that they would have positively identified him in court as the robber.
As the appellant ordered Ms. Middleton to lie on the floor, moreover, he struck her on the head with the black gun. When a black gun was seized from the appellant's SUV on January 2, 2009, a single strand of blond hair was recovered from the gun sight. Forensic examination showed that it had come from the head of Ms. Middleton.
The evidence was unquestionably sufficient to sustain both robbery convictions.
The appellant's second contention is that evidence of the extrajudicial photographic identifications of the appellant should have been suppressed because they were unreliable. The appellant's resort to the reliability/unreliability factor is what gives rise to the major theme of this opinion. If there were a book on the subject of Appellate Game Theory (there is not), this appeal could furnish rich examples for a chapter inevitably entitled "Diversionary Appellate Strategies" or "How to Finesse the Flaw of Immateriality." If the defense boldly asserts, "The extrajudicial identification was unreliable," and the State and/or court strongly believes that it was, to the contrary, very reliable, battle will almost reflexively be joined on that narrowly particularized issue. Lost in the din of battle may be the more pertinent and dispositive question of, "Does it really make any difference, one way or the other?" Obsessed with the factual yin and yang of the microcosm, everyone (including the court) can too easily neglect the threshold of materiality. Far from being inelegant, therefore, it should be the prime directive of appellate inquiry constantly to ask, "So what?" It is never out of place to question materiality.
In making this contention, the appellant boldly asserts that Judge Ross erroneously failed to suppress evidence of three extrajudicial identifications of the appellant. Hecontends that photographic identifications of him by Thomas Davidson from the Kent Island Texaco Station robbery and by both Christine Middleton and Michelle Mogavero from the Queenstown Xtra Mart robbery should have been suppressed because they were unreliable. The appellant's argument relies heavily on 1) the fact that one of these robbery victims was forced to lie down on the floor and was not, therefore, in the best position to observe the robber and 2) on the fact that several of the identifications were initially stated in arguably equivocal terms with less than ironclad certitude.
To some extent, although not totally, the State takes the bait and spends at least 50% of its appellate effort in bolstering the challenged reliability by running through, at length, the five-factored guidelines of Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). And see James v. State, 191 Md. App. 233, 253, 991 A.2d 122 (2010). The appellant and the State go back and forth in what would be a spirited and appropriate tug of war before a fact finder on the ultimate issue of guilt or innocence. The pertinent issue before us on this appeal, however, is not guilt or innocence, as a matter of fact, but the exclusion of evidence, as a matter of law. What might be persuasive argument on guilt or innocence is not necessarily pertinent argument on pretrial suppression. The appellant is reciting the reliability doxology in the wrong church.
The reliability of evidence, in and of itself, is fundamentally a jury issue and not an exclusionary issue. The exclusion of an extrajudicial identification, as a matter of law, is aconstitutional question, requiring some improper "state action" by way of violating either the Sixth Amendment's right to the assistance of counsel or the due process clause of the Fourteenth Amendment. The inherent unreliability of an identification, however, is not in and of itself the fulcrum for either one of those unconstitutionalities.
To argue for the exclusion of an extrajudicial identification, as a matter of law, is now a very dated tactic, although it was once, for a brief time, a popular appellate favorite. Our response to the now faded contention requires us to revisit briefly the basic reasons that caused the contention quickly to fall out of fashion. In Turner v. State, 184 Md. App. 175, 176-77, 964 A.2d 695 (2009), a case involving a similar contention to the one now being made, we noted the subject's heyday and its early demise:
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...
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