211 A.3d 236
Md.2019Background
- At ~2:00 a.m. on June 17, 2015, Ellis Lee was shot during an attempted robbery; the assailant covered his lower face with a T-shirt but Lee observed a distinctive cursive-script neck tattoo (containing an “M”) and later believed he had seen the man at his workplace (Staples).
- Police conducted two blind photo arrays the same day. The first (6 photos) included Small with a visible “M” tattoo; Lee indicated one photo “looked like” the assailant but did not make a positive ID.
- About three hours later a second array (12 photos: two views each of six men) was shown; Small was the only person repeated from the first array and the only person with an “M” in his tattoo; Lee positively identified Small and wrote he was "100% sure."
- The circuit court suppressed evidence of the first array (administrator unavailable at hearing) but allowed the second, finding reliability by clear and convincing evidence; Small was convicted at trial and sentenced to 8 years.
- The Court of Special Appeals found the second array suggestive but held the identification sufficiently reliable to admit; the Court of Appeals affirmed, applying the Manson–Jones two-step due process test and concluding indicia of reliability outweighed the suggestiveness.
Issues
| Issue | Small's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the second photo array was unduly suggestive | Second array was tainted because Small's photo was emphasized in the first array and repeated in the second (only repeated photo), creating an implicit suggestion | Presentation was blind; fillers in second array had neck tattoos; repetition alone did not prove undue influence on Lee | Court: second array was unduly suggestive (repetition + prior emphasis rendered it suggestive) |
| Whether identification was nevertheless admissible (reliability under totality of circumstances) | Suggestiveness fatally tainted ID; wavering certainty and potential contamination undermine reliability | Identification reliable by clear and convincing evidence: prior acquaintance, opportunity to view, detailed prior description (including the “M”), short time lapse, distinctive tattoo | Court: despite suggestiveness, indicia of reliability (prior familiarity, attention, description, timing, tattoo) overcame taint; admissible — jury to weigh persuasiveness |
| Proper legal framework for pretrial ID challenges | (Amici) Manson–Jones is outdated; courts should adopt Henderson-style variables and procedures reflecting modern memory science | Continue to apply Manson–Jones; courts may consider additional system/estimator variables within totality inquiry; legislature addressed some procedures | Court: reaffirmed Manson–Jones two-step test but acknowledged courts may consider broader system/estimator variables; declined to adopt Henderson wholesale |
| Standard and burden in reliability stage | Suppression should have excluded ID because suggestiveness created very substantial likelihood of misidentification | State must prove reliability by clear and convincing evidence; where reliability outweighs suggestiveness, evidence admitted and jury decides weight | Court: State met clear-and-convincing burden; trial court properly denied suppression; ultimate weight remains for jury |
Key Cases Cited
- Manson v. Brathwaite, 432 U.S. 98 (Sup. Ct. 1977) (reliability is the linchpin; courts apply totality of circumstances using Biggers factors)
- Neil v. Biggers, 409 U.S. 188 (Sup. Ct. 1972) (five-factor test for assessing reliability of identifications)
- Jones v. State, 310 Md. 569 (Md. 1987) (Maryland adoption of Manson two-step framework)
- Perry v. New Hampshire, 565 U.S. 228 (Sup. Ct. 2012) (identification infected by improper influence is not automatically excluded; reliability governs admissibility)
- State v. Henderson, 27 A.3d 872 (N.J. 2011) (reformulated suggestiveness/reliability inquiry emphasizing system and estimator variables; urged procedural changes)
- Smiley v. State, 442 Md. 168 (Md. 2015) (declined to adopt Henderson; reaffirmed Manson–Jones in Maryland)
- Sallie v. State, 24 Md. App. 468 (Md. Ct. Spec. App. 1975) (unique physical marks in photo arrays may corroborate rather than taint identification)
- Morales v. State, 219 Md. App. 1 (Md. Ct. Spec. App. 2014) (repeating a suspect’s photo across arrays is not per se suggestive absent evidence the witness noticed repetition)