84 A.3d 190
Md. Ct. Spec. App.2014Background
- Marcus Lee Smiley was convicted of attempted first‑degree murder, related assault, and handgun offenses; sentenced to life plus 10 years.
- Victim Travis Green was shot December 10, 2011; eyewitness Elmer Duffy (neighbor) gave a recorded statement 3 days later identifying Smiley but was murdered before trial.
- Smiley, while jailed, made intercepted phone calls urging family/nephew to "get Elmer out of the picture" and to ensure Duffy "don't come to court." His nephew, Keith Parker, was later charged with Duffy's murder.
- The State sought admission of Duffy's recorded out‑of‑court statement under Maryland forfeiture‑by‑wrongdoing law (Md. Rule 5‑804(b)(5)(B) / MD Code, Courts & Jud. Proc. §10‑901).
- Smiley also challenged (1) a pretrial photographic identification by Travis Green and (2) the trial court's exclusion of proposed expert testimony on eyewitness memory.
- The Court of Special Appeals affirmed admission of Duffy's statement under §10‑901, rejected the suppression challenge to the photo array, and upheld exclusion of the expert.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Smiley) | Held |
|---|---|---|---|
| Admissibility of Duffy's recorded statement under forfeiture‑by‑wrongdoing (§10‑901) | Intercepted calls show Smiley directed/ conspired to procure Duffy's unavailability; clear and convincing proof of wrongdoing and intent to prevent testimony | Insufficient proof that Smiley procured unavailability; indictment of nephew is not dispositive; §10‑901 standard not met | Court: Admission proper — two jail calls + subsequent murder and nephew's charge suffice to show by clear and convincing evidence Smiley engaged/conspired to procure Duffy's unavailability; §10‑901 hearing and evidentiary requirements satisfied |
| Suppression of photographic identification (due process / suggestive lineup) | Identification procedure was not impermissibly suggestive; agent followed proper procedures; photo array adequate | Photo array was suggestive (several photos distorted), requiring suppression | Court: Judge did not err — array not impermissibly suggestive; even if suggestive, reliability/harmlessness militates against exclusion |
| Exclusion of expert testimony on eyewitness memory | Expert would not offer aide beyond common sense; cross‑examination can cover factors (stress, weapon focus, double‑blind) | Expert testimony necessary to explain scientific frailties of memory and lineup procedures | Court: Exclusion proper — testimony would not materially assist jury beyond commonsense and cross‑examination; trial court did not abuse discretion |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial hearsay barred by Confrontation Clause unless forfeiture applies)
- Davis v. Washington, 547 U.S. 813 (2006) (forfeiture doctrine can extinguish confrontation claims when defendant procured witness unavailability)
- Giles v. California, 554 U.S. 353 (2008) (forfeiture requires intent to make witness unavailable)
- Reynolds v. United States, 98 U.S. 145 (1878) (early articulation of forfeiture by wrongdoing)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (due process suppression of identifications only when impermissibly suggestive and likely to cause irreparable misidentification)
- Simmons v. United States, 390 U.S. 377 (1968) (test for suppressing identifications as impermissibly suggestive)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (identification reliability ordinarily for jury; suppression rare)