Smiley v. State, 111 A.3d 43

This case involves Marcus Lee Smiley challenging the admission of a police photo array and the use of a witness’s pretrial statement obtained via alleged wrongdoing.
The shooting occurred December 10, 2011, in Salisbury, Maryland, where Smiley allegedly fired at Travis Green at close range and pursued him after Green fled.
Green identified Smiley from a six-photograph array; four photos depicting non-Smileys showed elongated faces and torsos but the array contained Smiley, who was not elongated.
Smiley moved to suppress Green’s extrajudicial identification as impermissibly suggestive due to the elongation; an expert testified to potential distortions.
After Duffy, a witness, was murdered, the State sought to admit Duffy’s recorded statement under Maryland’s forfeiture-by-wrongdoing provision (10-901/5-804(b)(5)(B)) based on Smiley’s alleged involvement.
Judge Seaton found clear and convincing evidence that Smiley engaged in, directed or conspired to procure Duffy’s unavailability, and the statements were admitted at trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the photo array was impermissibly suggestive.	Smiley contends elongation of four photos biased Green.	State maintains array remains fair and not impermissibly suggestive.	Not impermissibly suggestive; two-step Jones framework applied.
Whether Maryland should adopt Henderson standards for eyewitness identifications.	Smiley urges Henderson methodologies reflect current science.	Maryland already uses Jones-based safeguards and should not adopt Henderson.	Court declines Henderson adoption; preserves Jones framework.
Whether the recorded statement of Elmer Duffy was admissible under 10-901/5-804(b)(5)(B).	Smiley argues no clear and convincing showing of his wrongdoing connected to Duffy’s unavailability.	State showed Smiley’s conduct evidenced wrongdoing to procure unavailability; judge ruled accordingly.	Admissible; clear and convincing evidence supports Smiley’s role in procuring unavailability.

Jones v. State, 310 Md. 569 (1987) (two-step admissibility test for eyewitness identifications)
Bailey v. State, 303 Md. 650 (1985) (arrays may reflect similarities; not required to be identical)
Evans v. State, 304 Md. 487 (1985) (single-photo procedure impermissibly suggestive under certain circumstances)
Jones v. State (Kevin Jones), 395 Md. 97 (2006) (clarified reliability considerations in eyewitness identifications)
Bomas v. State, 412 Md. 392 (2010) (admissibility of eyewitness expert testimony governed by Rule 5-702)
Henderson v. State, 27 A.3d 872 (2011) (New Jersey standards for eyewitness identifications (not adopted))