State v. Greene , 240 Md. App. 119 ( 2019 )

State v. Greene, No. 2199 of the 2018 Term, Opinion by Moylan J.
FIRST-DEGREE MURDER – THE CHARGE – THE STATE APPEAL – A
SUPPRESSION MOTION BASED ON IDENTIFICATION LAW – THE WRONG
PEW IN THE WRONG CHURCH – THERE WAS NO SELECTIVE PROCESS IN
PLAY – THE RELIABILITY FACTORS ARE TOTALLY INAPPLICABLE – “I
THINK SO” VERSUS “I KNOW SO” – “I THINK SO”: GOOD, RELEVANT
EVIDENCE – COACHING A WITNESS – A CONFIRMATORY IDENTIFICATION
– PRIMARY CONCLUSION – CONSTITUTIONAL IDENTIFICATION LAW: THE
FIRST HALF-DECADE – THE SPOTLIGHT TURNS TO GENERAL
RELIABILITY: THE SECOND HALF-DECADE – THE ARGUENDO
ALTERNATIVE – THE EXCLUSIONARY VERSUS THE BALANCING
APPROACH – A RELIABILITY ANALYSIS WAS ESSENTIALLY IGNORED – AN
ERRONEOUS OR A CLEARLY ERRONEOUS HYPOTHETICAL FINDING –
EXCLUDING THE IN-COURT IDENTIFICATION AS WELL AS THE PRE-TRIAL
IDENTIFICATION – CONCLUSION
Circuit Court for Baltimore City
Case No. 117362037
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2199
September Term, 2018
______________________________________
STATE OF MARYLAND
v.
DANIEL JOSEPH GREENE
______________________________________
Meredith,
Nazarian,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Moylan, J.
______________________________________
Filed: January 31, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-01-31
13:40-05:00
Suzanne C. Johnson, Clerk
A flurry of intense Supreme Court activity in the decade from June of 1967 through
June of 1977 produced a weighty body of criminal-constitutional law that has generally
been referred to simply as “identification law.” The thrust of this opinion is that,
notwithstanding that impressive body of constitutional doctrine, every time that the word
“identification” is used in a case or an issue involving identification somehow arises in a
case is not necessarily the occasion to invoke constitutional identification law. The mere
word “identification” need not set off the constitutional fire bell. Just as there have been,
since 1967, numerous constitutional issues involving identification law, there always have
been and will continue to be numerous non-constitutional issues that may, coincidentally,
involve the subject of identification. As will be more fully discussed infra, there may be,
for instance, a constitutional chasm of difference between what we will call selective
identification issues and other merely confirmatory identification issues. We need to look
at identification issues more closely before invoking the constitution.
The Charge
The appellee, Daniel Joseph Greene, was indicted on December 28, 2017, in the
Circuit Court for Baltimore City, for the first-degree murder of Jon Hickey. The appellee
moved pre-trial to suppress both an out-of-court and an in-court identification of him by
Jennifer McKay as the man depicted in a surveillance video tape. Following a hearing on
August 20, 2018, the suppression hearing judge granted the appellee’s motion.
Appropriately, the State filed an appeal.
The State Appeal
The State filed its appeal on August 20, 2018. The appeal is authorized by Maryland
Code, Courts and Judicial Proceedings Article, Section 12–302(c)(4). Pertinent are
subsections (c)(4)(iii) and (iv):
(iii) Before taking the appeal, the State shall certify to the court that
the appeal is not taken for purposes of delay and that the evidence excluded
or the property required to be returned is substantial proof of a material fact
in the proceeding. The appeal shall be heard and the decision rendered within
120 days of the time that the record on appeal is filed in the appellate court.
Otherwise, the decision of the trial court shall be final.
(iv) Except in a homicide case, if the State appeals on the basis of this
paragraph, and if on final appeal the decision of the trial court is affirmed,
the charges against the defendant shall be dismissed in the case from which
the appeal was taken. In that case, the State may not prosecute the defendant
on those specific charges or on any other related charges arising out of the
same incident.
(Emphasis supplied).
The record was filed with this Court on October 23, 2018. Accordingly, our decision
must be rendered no later than February 20, 2019. We heard oral argument on January 7,
2019.
A Suppression Motion
Based On Identification Law
As part of an omnibus ten-pronged pre-trial motion pursuant to Maryland Rule of
Procedure 4–252, the appellee moved for the suppression of both an out-of-court
identification and an in-court identification of the appellee. The grounds asserted were that
the identifying witness, Jennifer McKay, had been subjected to impermissibly suggestive
procedures pursuant to Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 11992
(1967), and its progeny in the course of the identification procedure. Sections 5 and 6 of
the omnibus motion claimed:
5. That any identification of the Defendant made at a pre-trial
identification procedure be suppressed as having been obtained by an
impermissibly suggestive process, and in violation otherwise, of this
Defendant’s Constitutional or other legal rights.
6. That the in-court identification of this Defendant be suppressed as
the product of a pre-trial identification process which was impermissibly
suggestive, or which otherwise violates the Constitutional and other legal
rights of the Defendant.
(Emphasis supplied).
After the appellee chose constitutional identification law as the suppression hearing
battleground, everyone else followed suit. There were, to be sure, enough surface
similarities to familiar identification law to make that an easy mindset into which to fall.
The challenge based on identification law was the sole focus of the suppression ruling and
that is the only issue brought before us on this State appeal.
The Wrong Pew In The Wrong Church
Although we have elected to consider, purely arguendo, constitutional identification
law as an alternative holding, our basic feeling is that this case is, quite to the contrary, not
a case involving familiar constitutional identification law at all.
The facts are unusual. The victim, Jon Hickey, was murdered in his Fells Point
apartment in the early morning hours of November 29, 2017. Several days after the murder,
the police recovered a surveillance video from the house next door to Jon Hickey’s
apartment. It apparently showed a figure attempting to enter the Hickey apartment. The
police believed that that unknown figure may have been the murderer.
3
Accordingly, Jennifer McKay was asked to come to the police station to see if she
could identify the figure on the video cam recording. She readily assented. As of the time
of the murder, Jennifer McKay had been involved in an intimate romantic relationship with
Jon Hickey for several months. Prior to that, Jennifer McKay had been involved in an
intimate relationship with the appellee for five years. She and the appellee, moreover, had
known each other well since childhood. A strong theory as to murderous motive was the
appellee’s jealousy at having been replaced by Jon Hickey.
At the police station, Jennifer McKay was shown the relatively brief footage
recorded by the video cam. It was not in evidence. The police interview with Jennifer
McKay, however, was recorded and later transcribed. It was the police behavior during that
interview that was the exclusive focus of the suppression hearing.
There Was No Selective Process In Play
Over the decades, it has been recognized that the very purpose of constitutional
identification law has been to guarantee the reliability of the selection process. Whenever
a witness is asked to select the wrongdoer from a line-up of suspects, to select a photograph
of the wrongdoer from a photographic array, or otherwise to select the wrongdoer from a
larger group, the law’s concern is that the selection process be untainted by the police
slipping the answer, by word or by more subtle behavior, to the witness.
In this case, by contrast, there was no selection process in play. Jennifer McKay was
not asked to look at three separate video cam tapes and to select the one with the appellee
in it. Jennifer McKay was asked simply to confirm, if she could, that the man on the
surveillance tape was the appellee, Daniel Greene. Jennifer McKay’s knowledge of the
4
appellee’s appearance was absolute, beyond any peradventure of a doubt. All that Jennifer
McKay was asked to do could as readily have been asked of the appellee’s mother or of
his best friend or of his probation officer.
The difficult question in this case involved not Jennifer McKay’s ability to identify
the appellee but rather the quality of the picture or tape she was being asked to review. Was
it a good picture or was it an essentially unrecognizable picture? How far away was the
subject from the camera? Was the scene well-lit or dark? Did the subject ever turn and look
at the camera? Did the camera have any adverse impact on color? She was not looking at
high school yearbook photos but at possibly blurred and ambiguous images.
The Reliability Factors Are Totally Inapplicable
Since Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247(1968), impermissible suggestiveness is nothing more than a threshold question. The
primary concern is with ultimate reliability. Our focus is now on the reliability factors
articulated by 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). In the present
day, almost the entire attention of constitutional identification law is on these reliability
factors. In the case before us, however, those reliability factors are utterly irrelevant.
Classic identification law is simply inapplicable. How then do we apply the heart of
identification law if the heart of identification law is irrelevant?
“I Think So” Versus “I Know So”
If this case is not about identification law, what then is it about? A fair reading of
the suppression hearing transcript and a fair reading of the transcript of the police interview
5
of Jennifer McKay reveal clearly that what really concerned the appellee and defense
counsel and the suppression hearing judge was a discernible effort by the police to coach
the witness. Any suggestiveness, however, concerned not whom Jennifer McKay would
select. There was no selective identification. It concerned how forcefully or persuasively
Jennifer McKay would testify. The police wanted to prime her to be a more effective
witness.
The police interview of Jennifer McKay was fundamentally friendly and amicable
at all times. The exchanges were relaxed and pleasant. Jennifer McKay, moreover, was not
ultimately affected by any police suggestiveness. She identified the appellee as the man on
the video cam tape at the very outset of her interview. She identified him in almost precisely
the same terms at the very end of the interview. In response to the very first police question,
Jennifer McKay responded:
DET. O’CONNOR: Does he look like anybody?
MS. MCKAY: It looks like Dan.
DET. O’CONNOR: Why does it look like Dan?
MS. MCKAY: The beard.
DET. O’CONNOR: Anything else?
MS. MCKAY: The build.
DET. O’CONNOR: Okay.
(Emphasis supplied).
There was obvious difficulty with the quality of the tape, particularly with the effect
that “night vision” had on color.
6
DET. O’CONNOR: Take a look at them.
MS. MCKAY: It kind of looks like him.
DET. VAUGHN: Just remember the night vision is there.
DET. O’CONNOR: So, the colors are the things you’re looking at
aren’t really the same.
MS. MCKAY: What they are, right, right. So what color would that
jacket be?
DET. O’CONNOR: I don’t know.
MS. MCKAY: Okay.
(Emphasis supplied).
At another point, another detective showed her a photographic array.
DET. VODERK: All right. Do you recognize anyone?
MS. MCKAY: Yes.
DET. VODERK: What number was the person you recognized?
MS. MCKAY: Number four I believe. The top one.
DET. VODERK: Okay. Who is that person?
MS. MCKAY: Daniel Greene.
DET. VODERK: Okay. And how do you know Daniel Greene?
MS. MCKAY: He’s my ex-boyfriend.
(Emphasis supplied).
The pictures she viewed convinced Jennifer McKay that the appellee had killed Jon
Hickey.
DET. O’CONNOR: . . . . [W]hat do you think happened to Jon?
7
MS. MCKAY: Someone killed him.
DET. O’CONNOR: Someone?
MS. MCKAY: Dan did.
DET. O’CONNOR: Why do you say that?
MS. MCKAY: Pictures.
(Emphasis supplied).
At the end of the interview, her position was unchanged.
DET. VAUGHN: When you look at those pictures, I know you said
that it looks like Dan. Is that Dan on those pictures?
MS. MCKAY: (Affirmative nod).
DET. VAUGHN: You’re shaking your head.
MS. MCKAY: Yeah.
(Emphasis supplied).
Any problem the police had was exclusively with Jennifer McKay’s degree of
certainty. Her answers were consistently and invariably “I think so” rather than the
prosecutorial desideratum “I know so.” At one point she explained that her answer meant
that it “looks more like him than it doesn’t look like him.”
MS. MCKAY: It looks very much like him. But I mean, I can see
small differences. Like that, the face frame. But (inaudible) looks more like
him than it doesn’t look like him.
DET. O’CONNOR: Okay.
(Emphasis supplied). She is not being uncertain about Daniel Greene. What was uncertain
was the quality of the surveillance footage.
8
When the police tried to urge her to be more sure, Jennifer McKay remained
adamant that “this looks like him.”
DET. O’CONNOR: But you need to -- we need to know if that’s him
or not. And then we can do our own follow ups from there. But --
MS. MCKAY: I mean, from these pictures, yes, I would say this looks
like him.
(Emphasis supplied).
When the police explained that “I think” or “I don’t know” is not the response they
want, Jennifer McKay would not budge.
DET. O’CONNOR: That’s one thing, we just can’t have the “I think”
or “I don’t know.” That is what it is right there in front of you.
MS. MCKAY: Right.
DET. O’CONNOR: And nobody’s telling you to say one way or the
other.
MS. MCKAY: Right.
DET. O’CONNOR: We just need to know.
MS. MCKAY: No, it looks like him.
(Emphasis supplied).
In terms of her modest or relative level of certainty, Jennifer McKay did not yield
to police suggestiveness but maintained her position consistently. Once again, however,
any equivocation was based, almost certainly, on the poor quality of the video cam tape.
“I Think So”:
Good, Relevant Evidence
Maryland Rule 5–401 provides:
9
“Relevant evidence” means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.
Maryland Rule 5–402 then provides:
Except as otherwise provided by constitutions, statutes, or these rules,
or by decisional law not inconsistent with these rules, all relevant evidence
is admissible. Evidence that is not relevant is not admissible.
Thus, “I think that is Dan Greene” is just as relevant as “I know that is Dan Greene.”
Not as weighty, but just as relevant. Certainly weightier than “I have no idea.” “I think so”
will take a close case to the jury, whereas “I have no idea” will not. See
Fenner v. State, 381 Md. 1, 846 A.2d 1020 (2004). What is the percentage of certainty,
moreover, that permits a witness to graduate from “I think” to “I know”? Is that percentage
higher for scientists and academics than it is among laymen? Is it higher for timid souls
than it is for more assertive types? Is Albert Einstein’s “I think so” less weighty than a
blowhard’s “I know so”? One inevitably thinks of British historian and philosopher
Thomas Babington Macaulay, who was referred to by fellow historian George Trevelyan,
“I wish I could be as certain about anything as Tom Macaulay is about everything.”
Assertiveness may be as much about personality as it is about actual certainty.
Coaching A Witness
Improperly or excessively coaching a witness could be, of course, with respect to
any subject. The problem of coaching a witness is not one associated with identification
law particularly. One could as readily be coached about testifying with greater certainty as
to how much money was actually taken from the cash register or how provocative the
threatening gesture actually was before one struck in self-defense.
10
In the last analysis, any police behavior found to have been offending in this case
unquestionably would have been the effort to encourage or cajole Jennifer McKay to testify
with a greater degree of certainty. Offensive as that effort may have been, moreover, it had
no apparent effect. All of which is to say, this is not a classic selective identification case.
A Confirmatory Identification
The problem is that of recognizing those sets of circumstances where suggestiveness
is simply not a pertinent factor. The preceding concatenation of distinguishing
circumstances would be a lot easier to handle if we had the benefit of a convenient
shorthand reference or tag. The New York Court of Appeals has supplied that need to a
fare-thee-well with the term “confirmatory identification.” Distinguishing the selective
identification from the confirmatory identification, it makes, for present purposes, the
invaluable point that all identifications do not implicate the same juridical baggage.
People v. Rodriguez, 79 N.Y.2d 445, 593 N.E.2d 268 (1992), was a case in which
the suspect and the identifying witness were, as in the case at hand, well acquainted with
each other. In such cases, suggestiveness is not a concern.
“In cases in which the defendant’s identity is not in issue, or those in which
the protagonists are known to one another, ‘suggestiveness’ is not a concern
and, hence, [CPL 710.30] does not come into play.”
593 N.E.2d at 271 (emphasis in original; citations omitted). The degree of closeness of
the prior relationship is the controlling factor.
[W]hether the exception applies depends on the extent of the prior
relationship, which is necessarily a question of degree.
593 N.E.2d at 271.
11
The New York Court of Appeals fully explained the rationale of the “confirmatory
identification” exception.
A court’s invocation of the “confirmatory identification” exception is
thus tantamount to a conclusion that, as a matter of law, the witness is so
familiar with the defendant that there is “little or no risk” that police
suggestion could lead to a misidentification. . . . . In effect, it is a ruling that
however suggestive or unfair the identification procedure might be, there is
virtually no possibility that the witness could misidentify the defendant.
The exception may be confidently applied where the protagonists are
family members, friends or acquaintances or have lived together for a time.
593 N.E.2d at 272 (emphasis supplied; citations omitted).
In People v. Tas, 51 N.Y.2d 915, 415 N.E.2d 967 (1980), the New York Court of
Appeals applied the exception in a case where the suspect and the identifying witness had
been fellow inmates in the same tier of cells for at least one month.
As the Appellate Division noted, the victim and the defendants were inmates
in the same tier of cells for a period prior to the attack of at least one month
and, although the victim may not have known their particular names, he was
familiar with the defendants as individuals. Since the participants in the
incident the victim and the perpetrators were known to each other, there was
no “identification” within the meaning of CPL 710.30 and no prior notice
need have been given by the People.
415 N.E.2d at 967–68 (emphasis supplied; citations omitted).
In People v. Collins, 60 N.Y.2d 214, 456 N.E.2d 1188 (1983), the New York Court
of Appeals was dealing with a voice identification. The controlling constitutional law is
precisely the same as with visual identifications. The “confirmatory identification”
exception applies with equal certainty.
When a crime has been committed by a family member, former friend or
long-time acquaintance of a witness there is little or no risk that comments
12
by the police, however suggestive, will lead the witness to identify the wrong
person.
456 N.E.2d at 1191 (emphasis supplied).
The witness was being used in the Collins case for the same purpose as was the
witness in the case now before us. The Court of Appeals observed:
The existing identification procedures were designed for cases
involving “eyewitnesses” or persons who actually witnessed the crime as a
victim or bystander (see, e.g., United States v. Wade, supra, 388 U.S. pp.
228–229, 87 S. Ct. at pp. 1932–1933) and may be unsuitable in other
contexts. In the case now before us, for instance, Ruby Cohen’s identification
was sought not because she had witnessed the criminal events but because
she knew the defendant. There was no occasion to hold a “lineup” of tapes
including persons other than the defendant simulating the crime. The purpose
of asking her to make an identification was not to see whether she could
select the “real crime” but to determine whether, when confronted with a
recording of the crime, she was able to identify the perpetrator as a person
with whom she was familiar.
456 N.E.2d at 1191 (emphasis supplied).
In People v. Jenkins, 230 A.D.2d 806, 646 N.Y.S.2d 535 (1996), the New York
Appellate Division held that the use of a single photograph, albeit otherwise suggestive,
had no such adverse effect in circumstances where the suspect and the identifying witness
had established familiarity with each other.
It is well settled that the identification of a defendant by the use of a
single photograph must be merely confirmatory, based on the eyewitnesses’
prior familiarity with the defendant, in order to overcome the suggestiveness
of the procedure employed. The record here reveals that both identifying
witnesses had sufficient familiarity with the defendant from having
encountered him in the neighborhood two or three times a week for the period
of a year. In addition, the eyewitness to the shooting also knew the defendant
from an altercation on the streets in Brooklyn. Under the facts presented, the
identification of the defendant was merely confirmatory, and suppression
was properly denied.
13
230 A.D.2d at 807 (emphasis supplied; citations omitted).
In 2014, Massachusetts joined New York in recognizing, in Commonwealth v.
Crayton, 470 Mass. 228, 21 N.E.3d 157 (2014), that the integrity of the selective process
is not even called into question in circumstances involving a confirmatory identification
rather than a selective identification.
See People v. Rodriguez, 79 N.Y.2d 445, 449–450 & n. *, 583 N.Y.S.2d 814,
593 N.E.2d 268 (1992) (“confirmatory identification” exception to
requirement of pretrial hearing on admissibility of suggestive pretrial
identification applies where eyewitness and defendant are “known to one
another” or where defendant’s identity is not live issue at trial). And in both
of these circumstances, where the witness is not identifying the defendant
based solely on his or her memory of witnessing the defendant at the time of
the crime, there is little risk of misidentification arising from the in-court
showup despite its suggestiveness.
21 N.E.3d at 170 (emphasis supplied).
By 2018 New Jersey had also come aboard, at least by dicta if not by a square
holding. In State v. Pressley, 232 N.J. 587, 181 A.3d 1017 (2018), the Supreme Court of
New Jersey dealt with a case that did not involve a “confirmatory” identification. The
“confirmatory” identification, however, was expressly recognized even as it was
distinguished.
Nor do we believe that this case involved a “confirmatory”
identification, which is not considered suggestive. A confirmatory
identification occurs when a witness identifies someone he or she knows
from before but cannot identify by name. “ . . . Police will, on occasion,
display a single photograph to a witness in an effort to confirm the identity
of a perpetrator. Police typically limit this method to situations in which
the perpetrator is previously known to or acquainted with the witness.”
181 A.3d at 1020 (emphasis supplied; citation omitted).
14
This more incisive analysis recognizes that a mere “confirmatory identification”
does not generate the myriad risks of misidentification that frequently attend a selective
identification made under suggestive circumstances. Accordingly, there is no necessity to
conduct a taint hearing in order to decontaminate an identification procedure that is not
presumptively tainted.
Primary Conclusion
Our primary conclusion is that what was involved in this case was a mere
confirmatory identification, and not a selective identification. Under these circumstances,
the constitutional law governing identification procedures did not apply. There might have
been some problem with the manner in which the police coached the identifying witness
to assert herself with a greater degree of certainty, but no such contention is before us.
Because of the interest shown by all parties, however, in classic constitutional
identification law, we will, purely arguendo, assume that it applies. We will now look at
the present case through that very different lens.
Constitutional Identification Law:
The First Half-Decade
The appellee’s attempt to cast the current controversy as one involving
constitutional due process directs our analytic focus back to the turbulent decade between
1967 and 1977. In Wood v. State, 196 Md. App. 146, 7 A.3d 1115 (2010), cert. denied,
418 Md. 192, 13 A.3d 800 (2011), this Court described that ten-year-long phenomenon and
its impact.
Constitutional identification law . . . enjoyed a precise decade (plus
four days) of high-profile celebrity between 1967 and 1977. During that
15
decade, it rivaled confession law and search and seizure law in the national
spotlight. It commanded the attention of academic seminars and law reviews.
It began with a sunburst on June 12, 1967, as the Wade–Gilbert–
Stovall trilogy rocketed onto the national stage.
196 Md. App. at 157 (emphasis supplied).
Looking back from the perspective of over 40 years, it is now clear that that
turbulent decade broke down into two very distinct half-decades. The first half-decade was
obsessed with the Sixth Amendment’s right to the assistance of counsel. The second half-
decade shifted its attention almost completely onto general reliability pursuant to the Due
Process Clause of the Fourteenth Amendment. The Sixth Amendment phase, moreover,
relied heavily on the exclusion of evidence as a matter of law by suppression hearing
judges. The general reliability phase, by contrast, relied heavily on the weighing of
evidence as a matter of fact by lay jurors. It almost entirely eschewed the exclusion of the
identification as a matter of law. In Conyers v. State, 115 Md. App. 114, 691 A.2d 802,
cert. denied, 346 Md. 371, 697 A.2d 111 (1997), this Court noted the rising of the curtain.
The decade began with a roar with the much heralded Wade–Gilbert–
Stovall trilogy—United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L.
Ed. 2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18
L. Ed. 2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967,
18 L. Ed. 2d 1199 (1967). Identification procedures, which had theretofore
been treated as a purely factual matter left largely for lay jurors to handle, for
the first time took on constitutional dimensions. The catalyst for the
constitutionalization of identification procedures was the determination that
a police lineup was deemed to be a “critical stage,” thereby entitling an
accused who was forced to stand in a lineup to the Sixth Amendment right
to the assistance of counsel.
115 Md. App. at 116 (emphasis supplied).
16
Wood v. State noted both the Sixth Amendment character of those prototypical
cases and the inevitable reliance on the exclusionary rule as a curative measure.
The constitutional principle which they championed was the Sixth
Amendment’s guarantee of the assistance of counsel to a defendant. For the
first time in constitutional history, the placing of a suspect in a police line-up
for identification purposes was deemed to be a “critical stage.” These are
classic Sixth Amendment code words. If a defendant were placed in such a
line-up without a lawyer having been provided and present, exclusion of the
identification was automatically called for. Such exclusion was in high
vogue, and everyone was talking about identification procedures.
196 Md. App. at 157 (emphasis supplied).
Creative law enforcement, however, soon found a way to outflank the Sixth
Amendment by avoiding its application via two separate maneuvers. Wood v. State pointed
out the Sixth Amendment’s vulnerability to such creative prosecutorial strategy.
Within five years, however, a Thermidorean Reaction set in. Kirby v.
Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), first held 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 because such a
suspect was not yet an “accused.” Being at a critical stage would qualify an
“accused” for Sixth Amendment assistance, but if you are not yet “accused”
even a critical stage would not help. Whatever little wind still propelled the
exclusionary sails after Kirby, it was largely wafted away by the subsequent
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
subject, 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. Whereas Kirby had diminished the ranks of the “accused,” Ash
diminished the incidence of a “critical stage.”
196 Md. App. at 157–58 (emphasis supplied).
The prosecutorial strategy was clear-cut.
In short order, the police adjusted their identification procedures so as
to avoid almost entirely any Sixth Amendment problems. They either 1) used
some identification modality, such as a photographic array, that was not a
17
critical stage, instead of a live police lineup or 2) made sure that a police
lineup was used only for a suspect who was not yet an “accused.”
Conyers v. State, 115 Md. App. at 117 (emphasis supplied).
Turner v. State, 184 Md. App. 175, 964 A.2d 695 (2009), then pronounced the
requiem.
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.
184 Md. App. at 179 (emphasis supplied).
The Spotlight Turns To General Reliability:
The Second Half-Decade
With the essential fading away of identification issues based upon the Sixth
Amendment right to counsel, attention inevitably turned to general due process. With that
shift, moreover, came a concomitant shift away from the exclusion of evidence as a matter
of law and toward the weighing of evidence as a matter of fact.
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
18
not, a weighing function for a jury rather than an exclusionary function for a
judge.
Turner v. State, 184 Md. App. at 179 (emphasis supplied).
In Stovall v. Denno, the third in the original trilogy of identification cases and the
one based on general due process, the defendant was found guilty of both first-degree
murder and attempted first-degree murder by the out-of-court identification, followed by
an in-court identification, of a victim who had watched the defendant stab her husband to
death and had then been stabbed herself a total of eleven times by the defendant. She
underwent major surgery to save her life. On the day after the surgery, she was lying in her
hospital bed when five detectives, one of whom was handcuffed to the defendant, brought
the defendant into the room and stood him at the foot of the bed. The victim identified him:
“That’s the man.”
Was such an identification procedure suggestive? Of course it was. As Turner v.
State noted, “By its very nature . . . 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.).” 184 Md. App. at 180.
The Supreme Court nonetheless affirmed the legitimacy of the one-on-one show-up
in the hospital room on the ground that it, albeit unquestionably suggestive, was necessary
and, therefore, not impermissible. A jury, the Supreme Court pointed out, is perfectly
capable of weighing the pluses and minuses of such an identification. That is why mere
suggestiveness in and of itself does not call for exclusion. Justice Brennan’s opinion
19
pointed out that it is not a due process violation per se. It must be not only suggestive, but
also 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.
Even as a starter, a challengeable identification procedure must be not only suggestive, but
IMPERMISSIBLY SUGGESTIVE.
With Stovall v. Denno, however, the definition of a challengeable identification
procedure was still far from complete. Law enforcement was still awaiting the ultimate
clarification. In Wood v. State, this Court described the fulfillment of that expectation.
In 1968, Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19
L. Ed. 2d 1247 (1968), came riding, like the cavalry of old, to the rescue of
beleaguered police identification procedures. Simmons fine-tuned the due
process test of Stovall v. Denno. Even impermissible suggestiveness on the
part of the police would not, ipso facto, call for suppression as a matter of
law. Simmons made it clear that evidence of an identification will not be
excluded unless the identification procedure was “so impermissibly
suggestive as to give rise to A VERY SUBSTANTIAL LIKELIHOOD OF
IRREPARABLE MISIDENTIFICATION.”
196 Md. App. at 159–60 (emphasis in original).
Justice Harlan’s opinion in Simmons v. United States was perspicaciously clear that
the constitutional focus was not on police or prosecutorial behavior per se but only upon
the ultimate reliability of the identification.
[C]onvictions based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground only if the
photographic identification procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification.
20
390 U.S. at 384 (emphasis supplied). That is strong language. It is not merely a “likelihood”
but “a very substantial likelihood” of not merely a “misidentification” but of “irreparable
misidentification.” With so austere a definition limiting the actual exclusion of an
identification, it is small wonder that the Supreme Court has excluded an impermissibly
suggestive identification on only a single occasion.
Simmons v. United States was transformative in constitutional identification law.
What had been fundamentally exclusionary pursuant to the right to counsel of the Sixth
Amendment became almost entirely non-exclusionary pursuant to the totality of the
circumstances of the Due Process Clause. This will become a crucial factor when we turn
to our alternative arguendo analysis infra.
Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969), was
decided just one year after Simmons v. United States and the two cases represent the Yin
and Yang of ultimate reliability. After two successive line-ups and one individual show-
up, all of which were highly suggestive, the Supreme Court concluded, “The suggestive
elements in this identification procedure made it all but inevitable that [the witness] would
identify petitioner whether or not he was in fact ‘the man.’” 394 U.S. at 443. The procedure
was held to have violated due process as a matter of law. Actually, Foster’s being placed
in a line-up without benefit of counsel would have been a violation of the Sixth Amendment
right to counsel per United States v. Wade but for the fact that the line-up in Foster took
place before the Wade opinion had been filed and Wade was held not to be retroactive. As
late as 2012, Justice Sotomayor’s dissenting opinion in Perry v. New Hampshire, 565 U.S.
21228, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012), pointed out, “To date, Foster is the only
case in which we have found a due process violation.” 565 U.S. at 261.
The use of an exclusionary rule as a sanction against improper police or
prosecutorial behavior, moreover, has little place in such a scheme, where the primary
focus is on the quality of the evidence and not on the behavior of the police. Turner v. State
was emphatic in that regard.
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 the due process clause, moreover, the law does not
use an exclusionary sanction to regulate police procedures. The focus is on
the evidence itself in terms of its ultimate reliability. If the evidence is
reliable notwithstanding improper antecedent procedures, it will not be
suppressed under the due process clause. What matters is the trustworthiness
of the evidence, not the propriety of the governmental conduct that produced
it.
184 Md. App. at 181 (emphasis supplied).
All that remained was to receive guidance from the Supreme Court with respect to
assessing ultimate reliability. In Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d
401 (1972), on federal habeas corpus review, a United States District Court held that the
station-house identification procedure had been so suggestive that it violated due process.
The United States Court of Appeals for the Sixth Circuit affirmed that ruling. 448 F.2d 91(1971). The Supreme Court reversed the Sixth Circuit and articulated a number of factors
that could be used to assess the ultimate reliability of an identification without regard to
impermissive suggestiveness.
As indicated by our cases, the factors to be considered in evaluating the
likelihood of misidentification include the opportunity of the witness to view
the criminal at the time of the crime, the witness’ degree of attention, the
22
accuracy of the witness’ prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and the length of
time between the crime and the confrontation. Applying these factors, we
disagree with the District Court’s conclusion.
409 U.S. at 199–200.
Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), closed
out the decade of heavy Supreme Court activity in this area. The identification procedure
in question was found to have been impermissibly suggestive and the identification was
suppressed by the United States Court of Appeals for the Second Circuit. 527 F.2d 363(1975). Justice Blackmun’s opinion noted that “[s]ince the decision in Biggers, the Courts
of Appeals appear to have developed at least two approaches to such evidence.” 432 U.S.
at 110. The Supreme Court then contrasted the exclusionary approach to identification
issues, as used by the Second Circuit in that case, with the “more lenient approach”
focusing on ultimate reliability. It described the exclusionary approach:
The first, or per se approach, employed by the Second Circuit in the present
case, focuses on the procedures employed and requires exclusion of the out-
of-court identification evidence, without regard to reliability, whenever it has
been obtained through unnecessarily suggested confrontation procedures.
432 U.S. at 110 (emphasis supplied; footnote omitted). See also Pulaski, “Neil v. Biggers:
The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection,” 26 Stan. L.
Rev. 1097 (1974).
The Supreme Court criticized the exclusionary approach for denying the jury
evidence that is “reliable and relevant.”
The per se rule, however, goes too far since its application automatically and
peremptorily, and without consideration of alleviating factors, keeps
evidence from the jury that is reliable and relevant.
23
432 U.S. at 112 (emphasis supplied). The Court further pointed out how per se exclusion
can sometimes amount to a “Draconian sanction.”
The third factor is the effect on the administration of justice. Here the
per se approach suffers serious drawbacks. Since it denies the trier reliable
evidence, it may result, on occasion, in the guilty going free. Also, because
of its rigidity, the per se approach may make error by the trial judge more
likely than the totality approach. And in those cases in which the admission
of identification evidence is error under the per se approach but not under the
totality approach cases in which the identification is reliable despite an
unnecessarily suggestive identification procedure reversal is a Draconian
sanction.
432 U.S. at 112–13 (emphasis supplied; footnote omitted).
The Court then contrasted that approach with “the more lenient approach.”
The second, or more lenient, approach is one that continues to rely on
the totality of the circumstances. It permits the admission of the confrontation
evidence if, despite the suggestive aspect, the out-of-court identification
possesses certain features of reliability. Its adherents feel that the per se
approach is not mandated by the Due Process Clause of the Fourteenth
Amendment. This second approach, in contrast to the other, is ad hoc and
serves to limit the societal costs imposed by a sanction that excludes relevant
evidence from consideration and evaluation by the trier of fact.
432 U.S. at 110 (emphasis supplied; citations omitted).
The Supreme Court first pointed out that it had recently been evidencing an
increasing disenchantment with the exclusionary approach.
Certainly, inflexible rules of exclusion that may frustrate rather than promote
justice have not been viewed recently by this Court with unlimited
enthusiasm.
432 U.S. at 113 (emphasis supplied).
After a thorough and extended review of the opposing approaches, the Supreme
Court opted for ultimate reliability instead of for exclusion.
24
We therefore conclude that reliability is the linchpin in determining
the admissibility of identification testimony for both pre- and post-Stovall
confrontations. The factors to be considered are set out in Biggers. 409 U.S.
at 199–200, 93 S. Ct. at 382. These include the opportunity of the witness to
view the criminal at the time of the crime, the witness’ degree of attention,
the accuracy of his prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the crime and the
confrontation. Against these factors is to be weighed the corrupting effect of
the suggestive identification itself.
432 U.S. at 114 (emphasis supplied).
This then was the lay of the land as of June 16, 1977, with respect to the
constitutional propriety of selective identification procedures. That lay of the land has not
changed since Manson v. Brathwaite.1 All the identification law we need can be found in
the decade 1967–1977.
The Arguendo Alternative
Let us assume, therefore, solely for the sake of argument, that the pre-trial
suppression hearing in this case were a procedure within the coverage of constitutional
identification law, to wit, that we were dealing with a selective identification instead of a
1
In the immediate wake of Manson v. Brathwaite, Moore v. Illinois, 434 U.S. 220,
98 S. Ct. 458, 54 L. Ed. 2d 424 (1977), held simply that placing an “accused” suspect in a
position for a corporeal identification of him to be made was a violation of his Sixth
Amendment right to counsel. Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L. Ed.
2d 549 (1981), held that, in the absence of any defense request for a hearing, there is no
sua sponte constitutional obligation on the trial judge to conduct a hearing simply because
there is identification evidence of questionable reliability.
The most recent entry in the identification law field is Perry v. New Hampshire, 565
U.S. 228, 261, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012). The Supreme Court held that a
hearing on reliability is not required simply because an identification may be of
questionable reliability. There must be some state action behind impermissible
suggestiveness to trigger a taint hearing. Otherwise, it is simply for the jury to weigh and
balance the evidence.
25
very different confirmatory identification. Even under such hypothetical circumstances, the
suppression of Jennifer McKay’s identification of the appellee on the surveillance video
tape would have been erroneous for any of four separate reasons, any one of which would
require the remand of this case for further proceedings.
The Exclusionary Versus The Balancing Approach
We would hold, were the arguendo hypothetical before us for decision, that the
exclusionary act of suppressing Jennifer McKay’s identification of the appellee on the
surveillance tape was error, at least without compelling reasons to do so. There is no
question but that the suppression court’s ruling was one of per se exclusion: “I will grant
the Defense’s motion to suppress the out of court identification.” It is conceivable that there
might be, sometime and somewhere, an impermissibly suggestive identification resulting
in the “very substantial likelihood of an irreparable misidentification.” It is prudent,
therefore, never to say “never.” Short of such an extreme situation, however, the
exclusionary approach is in strong disfavor, certainly since the promulgation of Manson v.
Brathwaite in 1977. Under the totality of circumstances approach, the jury would have been
able to balance the many reasons why Jennifer McKay’s identification of the appellee
would have been reliable against any reasons why they might not. It was error for the court
to shortchange the efficacy of the weighing or balancing process. Notwithstanding any
police pressure brought to bear on Jennifer McKay’s level of certainty, we cannot see a
very substantial likelihood of irreparable misidentification, and nothing short of that could
justify excluding McKay’s testimony.
A Reliability Analysis Was Essentially Ignored
26
Pre-trial hearings challenging the propriety of identification procedures are
frequently referred to as “taint hearings.” The primary purpose of such hearings is not to
discover taint and then to sanction the police for having tainted the identification by
excluding the evidence. The predominant purpose is to give the State the opportunity to
purge any initial taint by showing that the ultimate identification is, notwithstanding the
taint, nonetheless reliable (to wit, untainted).
Since the promulgation of Simmons v. United States in 1968, it has been
perspicaciously clear that the factfinding jury should not be denied the knowledge of an
identification unless the identification procedure was 1) suggestive, 2) impermissibly so,
and 3) that there is a very substantial likelihood of an irreparable misidentification. As it
has blossomed forth in Neil v. Biggers and Manson v. Brathwaite, that probing of ultimate
reliability is now at the heart of constitutional identification law.
It is evident from a close reading of the record of the suppression hearing in this
case that the hearing focused almost exclusively on the behavior of the police and ended
up with the conclusion that the police behavior had been impermissibly suggestive. The
decisive focus was on the suggestive language of the police interviewer.
From start to finish, the focus of the suppression court was on the suggestive
behavior of the police—and it stopped there. At one point, the State wanted to call Jennifer
McKay to explain her reaction to the police interview. In denying that request, the court
explained:
THE COURT: I just don’t see whether that changes your position with
regard to whether the police were impermissibly suggestive in the way they
conducted this interview.
27
(Emphasis supplied).
The court reiterated that “the conduct that occurred on this video is the only thing
we’re talking about.” (Emphasis supplied). Moments later, the court reiterated its view that
Jennifer McKay’s state of mind was not a factor in the exclusionary equation.
THE COURT: Right. I agree with [defense counsel]. I’m going to
deny your request to call -- because what her state of mind is --
[PROSECUTING ATTORNEY]: That’s fine.
THE COURT: -- has nothing to do with whether the police conduct
was impermissibly suggestive.
(Emphasis supplied).
At another point, the court observed, “The burden was always on the State to prove
that it was not impermissibly suggestive.” (Emphasis supplied). At yet another point, the
court rejected the idea that Jennifer McKay’s state of mind could have any redemptive
influence once impermissible suggestiveness had been found:
THE COURT: I accept -- even if I accept that she was in shock that it
could be somebody that she knew that murdered somebody else that she
knew, it doesn’t impact whether the police were impermissibly suggestive.
(Emphasis supplied).
Ultimately, the court ruled that Jennifer McKay could testify as to her state of mind
during her police interview.
If I understand Jones, which I have reviewed a long time ago, what Jones is
saying is once I determine that suggestiveness, that the identification was
suggestive, then you have an opportunity to present the totality of the
circumstances to demonstrate that it’s still reliable.
28
On being called to the stand, Jennifer McKay explained that she was sure about her
identification of the appellee on the tape, and explained that any hesitation on her part was
because of her disbelief that someone she once had loved could commit this murder of her
live-in boyfriend.
Q. So -- and what happened? Explain -- when you looked at the video,
if anything?
A. I saw Daniel Greene on the video in the back like alleyway of his
-- of Jon’s apartment complex.
Q. Now do you recall on December 4th, 2017, was there -- on
December 4th, 2017, when you looked at the video, is that how quickly you
said it was Daniel Greene?
A. No, it took me some time to come to that conclusion.
Q. Can you explain to Her Honor why that is or what was -- what you
were thinking or what was going on in your mind?
A. I mean I was in doubt that somebody that I loved at one point in
time was capable of committing murder.
Q. And -- okay. Did --
THE COURT: Right. But what did that have to do with the
identification in the video?
MS. MCKAY: Yes. I mean it took me some time to -- to come to the
realization that I was in belief that it was him. But yes, when I looked at the
video I was able to identify him.
After rigorous cross-examination by defense counsel, the court announced that “the
only thing that I need to decide, my issue today, is was the police conduct impermissibly
coercive in forcing Ms. McKay to pick out the defendant. That’s the only issue for me.”
29
(Emphasis supplied). The focus of the court continued to be on impermissible
suggestiveness.
THE COURT: [Prosecuting Attorney], I am not challenging Ms.
McKay. She in effect is somewhat of a victim in this case. What this goes to
is the police conduct with regard to how they conducted this identification.
So would you address your remarks to whether the conduct of the police was
impermissibly suggestive?
(Emphasis supplied).
At the very end of the court’s analysis, there was a passing and unadorned mention
that “it’s not a reliable identification” but nothing more in that regard.
THE COURT: Okay. Now here’s how this court after viewing the
video sees this case; that the -- if the police had come in and said, here’s the
video, can you tell us who’s in the video and she says I’m not sure, it’s not
very clear. I’d let it in. If the police said, okay, well, let’s go get the still
pictures and maybe you can see it more clearly, that would be fine too. But
when they cross the line and say, now look, Daniel has a beard, that guy has
a beard. Daniel has a nose. Do you see the nose? It’s the same nose. And they
lead her to make a positive identification. That is suggestive.
Additionally, under the totality of the circumstances in this case,
they’re not asking her do you know Daniel. They’re asking do you know the
person that’s in this video. And as [defense counsel] points out, that is in
effect stranger to stranger because if she comes in not knowing who that
person is and she does it of her own volition make that decision that it is in
fact Daniel. And the fact that she comes in today and reinforces the concept
that they pushed her and pushed her and then reassured her that it is Daniel
at the end of the interview that the State introduced, the next part of the
interview where they said, don’t worry about it. I know this is hard and they
just reinforce and make her more sure that she’s picked out the person that
they want her to pick out. So for those reasons I find it is suggestive and that
under the totality of the circumstances it’s not a reliable identification and
therefore, I will grant the Defense’s motion to suppress the out of court
identification.
(Emphasis supplied).
30
Ultimate reliability was not a meaningful factor in that analysis, if it was, indeed, a
factor at all. The conclusion seemed to follow that if the procedure was suggestive, the
identification would be ipso facto unreliable without any more detailed analysis. Even
granting, arguendo, impermissible suggestiveness in the police interview of Jennifer
McKay, it was not nearly as strong as the impermissible suggestiveness found to have
existed by the United States Court of Appeals for the Sixth Circuit in Neil v. Biggers.
Impermissible suggestiveness, however, was not enough to justify exclusion. After
examining the four-fold reliability factors articulated by that case, the Supreme Court
reversed the decision of the Sixth Circuit to exclude the identification. By the same token,
any possible impermissible suggestiveness in this case was not nearly so strong as that
found to have existed by the United States Court of Appeals for the Second Circuit in
Manson v. Brathwaite. Once again, however, impermissible suggestiveness was not
enough to justify exclusion. After examining in detail the countervailing reliability factor
in that case, the Supreme Court did not hesitate to reverse the decision of the Second Circuit
to exclude from evidence the identification in that case.
Were a case involving constitutional identification law before us, we similarly
would reverse the decision of the Circuit Court for Baltimore City in the present case. The
court did not undertake a serious assessment of whether, beyond impermissible
suggestiveness, there was “a very substantial likelihood of irreparable misidentification.”
An Erroneous Or A Clearly Erroneous Hypothetical Finding
Were this, arguendo, a case of selective identification and were our framework of
analysis, arguendo, the constitutional identification law that has been promulgated by the
31
Supreme Court, we would find error for yet another reason. The suppression hearing court
necessarily found, pursuant to Simmons v. United States, Neil v. Biggers, and Manson v.
Brathwaite, that Jennifer McKay’s identification of the appellee was, by a very substantial
likelihood, an irreparable misidentification. Such a finding, we hold, would have been
clearly erroneous.
There was no evidence of any misidentification having been made in this case. After
first viewing the video camera surveillance tape, Jennifer McKay identified the appellee as
the man pictured on the tape. At the end of the protracted police interview of her, Jennifer
McKay continued to identify the appellee as the man pictured on the tape. That never
changed. No police pressure or influence ever caused her to select anyone other than the
appellee. The only thing that arguably might have changed (it appears to us not to have
changed) was the degree of certainty with which Jennifer McKay made the identification.
All of the alleged police suggestiveness was aimed at Jennifer McKay’s level of certainty.
The statement, “I think that is the appellee” and the statement, “I know that is the appellee”
are both relevant evidence helping the jury to conclude that the man pictured on the tape
is, indeed, the appellee. The difference between the two levels of certainty goes only to the
weight of the evidence and not to its relevance and, therefore, its admissibility. “I think so”
is just as relevant as, “I know so.” 60% certainty is just as relevant as 95% certainty. Not
nearly as weighty, of course, but just as relevant. Sliding up and down the certainty scale
does not alter the substantive nature of the thing one is either very sure about or perhaps
only tentatively sure about.
32
Weight, of course, is classic grist for the jury mill. Improperly to strengthen the
certainty of an identification (just as, for that matter, improperly to weaken the certainty of
an identification) does not transform an identification into a misidentification. It may,
indeed, be a case of the improper coaching of a witness (by the police, by the prosecuting
attorney, by the defense attorney, by anyone) but that is an entirely different matter than
giving hints as to the selection of this person over the selection of some other person. It is
not something, moreover, that has been argued on this appeal. As this Court pointed out in
Conyers v. State:
To do something impermissibly suggestive is not to pressure or to browbeat
a witness to make an identification but only to feed the witness clues as to
which identification to make. THE SIN IS TO CONTAMINATE THE TEST
BY SLIPPING THE ANSWER TO THE TESTEE.
115 Md. App. at 121 (emphasis in original).
Under no circumstances, moreover, could an identification of the appellee by
Jennifer McKay be inherently unreliable. The appellee and Jennifer McKay had known
each other since childhood. They had lived together in a husband-wife relationship for five
years, breaking up only recently before the appellee, as the ex-live-in-boyfriend shot and
killed the new live-in-boyfriend. The appellee and Jennifer McKay had been in
communication since that break-up. Under any set of criteria, any identification she made
of him would be inherently reliable and thus, under Simmons v. United States, Neil v.
Biggers, and Manson v. Brathwaite would not call for exclusion.
The inability even to apply Neil v. Biggers’s reliability factors to the circumstances
of this case simply illustrates the overriding reality that this is not truly an identification
33
case at all, but rather a case involving, at worst, the improper or excessive coaching of a
witness. Because this confirmatory identification does not in any way involve the
identification of a criminal by a victim or other witness to the crime, the Neil v. Biggers
reliability factors are utterly inapposite. The square peg of Neil v. Biggers specifically or
of constitutional identification law generally simply do not fit into the round hole of this
case. That makes the point yet again that, despite some surface similarities, this is not truly
a case involving identification law at all. This case would be the same if the arguably
improper coaching by the police of Jennifer McKay had been about a dozen other subjects
not remotely involving a confirmatory identification of the appellee. It might have been the
time of day or whether the front door had truly been locked. In any event, a finding of
circumstances giving rise to a very substantial likelihood of an irreparable misidentification
would have been clearly erroneous and, therefore, reversible.
Actually, it is almost certainly not the “clearly erroneous” test that we should be
applying at this point, even in analyzing our arguendo alternative. Although the Supreme
Court has not given us express guidance in this regard, it is, from the very language of the
ultimate reliability test itself, almost certainly the case that a conclusion by a suppression
hearing judge that a particular identification procedure was so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable misidentification is not a finding,
as a matter of fact, but a ruling, as a matter of law, that the identification in issue will not
be permitted even to go to the jury for its weighing and balancing. Whether, however, the
suppression hearing judge in this case was erroneous, as a matter of law, or clearly
erroneous, as a matter of fact, really does not make any difference. In either event, a remand
34
is required. For future guidance, however, we would opt for considering this to have been
a ruling, as a matter of law, subject to de novo right or wrong appellate review.
Excluding The In-Court Identification
As Well As The Pre-Trial Identification
Immediately after the court suppressed the out-of-court identification, the State
inquired about a subsequent in-court identification. There was no argument by counsel on
the subject or even discussion. The in-court suppression followed the out-of-court
suppression almost automatically.
THE COURT: . . . .So for those reasons I find it is suggestive and that
under the totality of the circumstances it’s not a reliable identification and
therefore, I will grant the Defense’s motion to suppress the out of court
identification.
Now let’s go onto the motion to suppress the searches.
[PROSECUTING ATTORNEY]: Is Your Honor preventing her to do
an in court looking at the video?
[DEFENSE COUNSEL]: Yes, that was the whole court’s --
THE COURT: That was the whole point.
[PROSECUTING ATTORNEY]: Well, you said out of court. So --
then the State, Your Honor, at this moment there’s no -- the State would ask
Your Honor to stay the proceedings so we can --
THE COURT: No, denied, denied.
(Emphasis supplied).
If nothing else needed to be considered in assessing subsequent in-court reliability,
how about the adjective “irreparable”? What was in play in this case, of course, was the
degree of certainty of Jennifer McKay’s identification of the appellee as the figure on the
35
surveillance tape. If police questioning arguably had the effect of ratcheting the certainty
dial upward, might not strong, forceful, and persuasive cross examination by defense
counsel probably have ratcheted the dial back downward again? Would not such a
vulnerability to countervailing pressures make any arguable “misidentification” a
“reparable” one rather than an “irreparable” one? The deliberate use of the adjective by the
Supreme Court was not random or accidental. It is a key component of the constitutional
reliability factor. Would the appellee have us simply ignore the adjective “irreparable”?
Might not any uncertainty about Jennifer McKay’s level of assurance be explained
by showing the jury, in court, the very security cam tape that she had been shown by the
police? Is it possible that the images of the suspect on the tape were from a distance? Or in
the dark? Or such circumstances where colors might be subject to change? Might a blurred
or murky image have been such that one would have difficulty identifying a picture of
oneself? In any event, could looking at the tape itself have thrown helpful light on Jennifer
McKay’s level of certainty? Might not this have made even equivocal testimony reparable?
By showing the surveillance tape to the jury, the jurors would have had a chance to
compare Jennifer McKay’s ability to make an identification with their own. They would
be viewing the same tape that she had viewed. They would be comparing the image on the
tape, blurry or clear, with the person sitting immediately in front of them at the trial table.
If that were not sufficient, the appellee could have been directed to walk over immediately
in front of the jury box, to bend over, to turn around, etc. This might have made the
apparently irreparable reparable. Once again, we hold that the suppression of an in-court
identification was in error.
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Conclusion
Our basic holding is that this case is not a case involving constitutional identification
law at all, but a case rather of the arguably improper or excessive coaching of a witness, a
contention that is not before us. Even if, however, it were, purely arguendo, a case
involving classic identification law, we would rule that the suppression order would have
to be reversed and the case remanded for further proceedings.
SUPPRESSION ORDER REVERSED AND
CASE REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION; COSTS TO BE
PAID BY APPELLEE.
37