Background - Victim Ellis Lee was shot during an attempted robbery at ~2:00 a.m.; he reported the assailant had a distinctive cursive block-letter "M" neck tattoo and that he had seen the man at his workplace on two prior occasions. - Police showed Lee a first photo array (~8:30 a.m.) in which appellant Malik Small was the only photo with a visible neck tattoo; Lee tentatively indicated that photo but was not sure (about 80% sure). - A second photo array (~11:45 a.m.) was compiled to include neck tattoos; Small’s photo was the only one repeated from the first array and the only one with a block-cursive "M" in the same position; Lee positively identified Small and later identified him in court. - Appellant moved to suppress identifications from the arrays; the suppression court found the procedure troubling but admitted the second array, holding the identification reliable by clear and convincing evidence due to Lee’s prior familiarity and tattoo description. - At trial the jury convicted Small of attempted robbery, second-degree assault, and reckless endangerment; Small challenged suppression denial, prosecutorial remarks, exclusion of phone records, and sufficiency of the evidence on appeal. - The Court of Special Appeals affirmed: it held the second photo-array procedure was impermissibly suggestive but that Lee’s identification was nevertheless sufficiently reliable; other trial rulings were affirmed as not prejudicial or not preserved. ### Issues | Issue | Appellant's Argument | State's Argument | Held | |---|---:|---|---| | Whether second photo array was impermissibly suggestive | The first array highlighted Small’s unique neck tattoo and the second array repeated only Small’s photo, signaling the correct choice | Array was justified by Lee’s tattoo description and his equivocal first response; police acted reasonably | Procedure was impermissibly suggestive (repetition + unique tattoo), but not dispositive because reliability overcame the suggestiveness | | Whether identification was nevertheless reliable under totality of circumstances | Identification unreliable: poor lighting, partial face covering, wavering certainty, later doubt, limited prior familiarity | Identification reliable: close proximity during crime, detailed accurate tattoo description, prompt ID, prior sightings and voice recognition | Identification was sufficiently reliable by clear and convincing evidence; suppression denial affirmed | | Whether prosecution’s rebuttal comments vouching for witness credibility warranted reversal | Comments improperly vouched for and shifted burden; prejudiced defense | Remarks attacked alibi witness credibility based on trial testimony and were permissible argument | Issue unpreserved; even if preserved, remarks were within permissible scope and not improper vouching | | Whether exclusion of defense phone records was reversible error | Records would corroborate alibi testimony and were improperly excluded | Records were cumulative and defense failed to proffer their significance at trial | Issue not preserved (no adequate proffer); trial court’s exclusion not shown to be an abuse of discretion | ### Key Cases Cited Foster v. California, 394 U.S. 440 (Sup. Ct.) (repeated appearance of a suspect across lineups can impermissibly taint identification) Simmons v. United States, 390 U.S. 377 (Sup. Ct.) (photo arrays that spotlight a single picture or repeat it increase risk of misidentification) Manson v. Brathwaite, 432 U.S. 98 (Sup. Ct.) (reliability is the critical inquiry when suggestive procedures are shown) Neil v. Biggers, 409 U.S. 188 (Sup. Ct.) (set of reliability factors for evaluating identifications) Perry v. New Hampshire, 565 U.S. 228 (Sup. Ct.) (due process is implicated only when identification procedure is suggestive and police-arranged) Webster v. State, 299 Md. 581 (Md. 1984) (Md. framework for suppressing unreliable suggestive identifications) Smiley v. State, 442 Md. 168 (Md. 2015) (photo-array suggestiveness analysis and importance of uniform features) Morales v. State, 219 Md. App. 1 (Md. Ct. Spec. App.) (repetition of a photo in successive arrays can be suggestive if witnesses notice it) Conyers v. State, 115 Md. App. 114 (Md. Ct. Spec. App.) (distinguishing improper pressure from suggestive conduct that "feeds the answer" to witness) Gatewood v. State, 158 Md. App. 458 (Md. Ct. Spec. App.) (burden shifts to State to prove reliability by clear and convincing evidence once suggestiveness shown) * Sallie v. State, 24 Md. App. 468 (Md. Ct. Spec. App.) (distinctive physical marks in arrays can both make identification inevitable and, in some circumstances, more reliable)