*1 If it persuaded parties is not agreed to a down- stream regardless modification of petitioner’s institutional rec- ord, the Circuit Court must determine whether is persuaded by a preponderance of the petitioner evidence that sub- has stantially complied with the on-the-record statement of condi- imposed by tions the sentencing judge on March If 1998. petitioner successfully can shoulder the burden of persuasion issue, on that the petitioner is entitled to the requested modification.
If it not persuaded that petitioner substantially has complied with the imposed by conditions the sentencing judge, the Circuit Court shall exercise its in deciding discretion issue of whether extent to which petitioner’s motion and/or granted. modification should be
965A.2d 900 Dion G. TUCKER Maryland. STATE Sept.Term, 35No. 2008. Appeals Maryland. Court of
Feb. *2 (Jason Lichtman, Corle, L. Defender Ryan Assigned Public LLP, DC), Washington, Howrey, Assigned Public Defender brief, on for Petitioner. Gansler, F. Pritzlaff, Atty. (Douglas Asst. Gen. Page
Sarah Baltimore), brief, for Maryland, Respondent. on Atty. Gen. C.J., HARRELL, BELL, BEFORE ARGUED GREENE, BATTAGLIA, MURPHY, ADKINS and JOHN C. (Retired, specially assigned), ELDRIDGE JJ.
BATTAGLIA, Judge.
Petitioner,
Tucker,
Dion
G.
invites us
explore
applica-
State,
Smith
tion of our decision in
388 Md.
A.2d
(2005),
to a sentence included in a cross-racial
identifica-
so,
jury
doing
tion
instruction.
dowe
not address whether
bar,
such an instruction was appropriate in the case at
but
whether,
given,
once
instruction was a correct statement
Tucker v.
certiorari,
granted
law. We
(2008),
Did the trial err in granting court State’s instruc- tion regarding cross-racial Mr. over Tucker’s objection, when the State’s instruction misquoted applicable law jurors and directed the to believe that cross-racial identification was not a factor testimony? shall hold *3 We trial erred because the instruc- tion, formulated, was not a correct statement of the law.
I. Introduction
A. Facts The State’s evidence to the following tended show facts: 30, 2005, On the morning September Hilary Auth was in her bathroom when she heard a loud banging noise. She window, hooded, the peered out and saw a man a “light blue sweatshirt, blue/gray it,” ... design sweatshirt a on [with] boots, jeans and heavy dark attempting to break into her home; she identified the as black when man he looked for a up eye brief second and she saw part his face. After and attempting tone, to call 911 but getting no dial Auth concealed bedroom, herself in her and the peeking through bedroom door, a noticed different African-American man in a red- sweatshirt, boots, heavy hooded and jeans, slightly less hair, slight build, than braided shoulder-length relatively shoulder[s],” thin and without up “broad the coming stairs. Auth then moved from her bedroom to her livingroom, and there, once called 911 from phone. waiting a cordless While the from to livingroom Auth looked operator, for the 911 looking individual and saw the red-hooded of the stairs top her, individual blue/gray-hooded as the same as well back window, be- standing bathroom seen from her that she had individual declared red-hooded stated that hind. Auth out,” burglar, blue/gray-hooded a with the dispute “I’m had description of gave Auth no facial ran the front door. and out later identified although she burglar; blue/gray-hooded Tucker. burglar as neither thereafter and found arrived soon Police officers Tracy Auth met with Detective in the house. burglar Williams, reported and burglars, of the description a provided stolen, as well as had been keys purse her phone, cell card, was immedi- cards, Target a which including Visa credit to opportunity Williams had an cancelled. Detective ately stores, Target from representative with a credit card speak less than hour him that Auth’s card had been used who told Bowie, Maryland, and that Target at a burglary after Forestville, Maryland; again Target card was used at a were fruitless. attempts to use card both a of the Bowie Tar- videotape Williams obtained Detective officer of a description Target prevention from a loss get a man and three Impala. videotape, 2005 Chevrolet On buy attempting shown and then shopping women were electronics, specifically using Target Visa. man cart, purchase, items to pushing shopping choosing shown who to checkout with the three women accom- proceeding him, whom later turned out be Jasmine panied one of *4 in her After the card actually who had the card hand. Joyner, match the did not Joyner’s denied because identification was card, the four left in the 2005 Chevrolet Target name on the Impala. days burglary, Auth viewed the four after
On October immediately two of the videotape almost identified Target had seen in in the those that she Target stores as individuals later, Williams submitted the days Ten Detective her home. pictures two identified Auth to local a newspaper, attempt pertinent to solicit information. days bulletin,
Within five of the on October Tucker to the Anne Arundel reported County Department Police that his 2005 Impala Chevrolet had been stolen sometime between thereafter, October 14 Shortly and October 19. Detective Williams discovered Tucker’s stolen auto report, precip- which securing picture Tucker, itated his who the Detective then identified as the man on the Target videotape. Investigating further, Detective spoke Investigator Williams to William Kissler, who informed him car resembling that a the Chevrolet Impala found, had been but that because it had been com- burned, pletely possible it was not identify to the car or its owner. brought
Detective Williams Tucker for questioning on his Miranda October and after having been advised rights, Tucker spoke police. photos He was shown four still Target taken from the videotape and was able to identify the women, Jasmine, three Cheryl, Monique and but declared brother, man that in the fourth photo was his “twin Mongo.” being picture After shown his older brother Mongo, Tucker admitted was he in picture. Tucker Jasmine, further Cheryl asserted had come Monique his during morning home of September sometime a.m., after him to 10:30 and asked drive them to in his Target Impala. Chevrolet Tucker initially stated that he had believed they just going were until shopping, Joyner was denied Target the use of the card because her did match the name on the card. Tucker also that the admitted group attempted to make other electronics at the purchases Target, again, Forestville but proffered by Joyner card denied; store, although they at a 7-Eleven successfully gas. used card to purchase statement, In a signed Tucker being denied involved Jasmine, burglary and declared that a black female about 21 years length hair, old shoulder braided was involved in a burglary she Cheryl before came to his house with
373 on had cuts Jasmine had asked whether morning. When put she had remembered that day, Tucker her hand that had and that fingers her on cut on one of bandage also, ques- to a responding when Taylor to bleed. continued car, “I think it was opined, had stolen his who tion about in the an article there was My told me that mother Jasmine. and hers. my picture that showed Capitol Newspaper burglary. called committing the accusing us of article was my and she stole car her it. I think and told about Jasmine any proof, I don’t have destroy any evidence. fire to set it on car my that she was seen thought Jasmine but I think day.” leaving Target first, third and charged arrested and
Tucker was theft, another’s credit stealing and degree burglary, fourth only first indicted for card; he was although subsequently home, Auth’s entering degree burglary,1 breaking band, a $500,2 of a diamond specifically, more theft over Article, (2002, Maryland Code of the Criminal Law 1. Section 6-202 Repl.VoI.)stated: 2005 dwelling of (a) person not and enter Prohibited.—A break violence, or a crime of to commit theft another with the intent guilty felony (a) Penalty.—Aperson section is of the who violates this subject impris- degree is burglary the first and on conviction of exceeding years. not onment Article, (2002, Maryland Code 7-104 of the Criminal Law Section stated, part: pertinent Repl.VoI.), willfully (a) person may or property.—A not control over Unauthorized property, if the knowingly or unauthorized control over obtain exert person: (1) deprive property; owner of the intends to conceals, uses, (2) willfully property or knowingly abandons or property; deprives or the owner of the a manner use, uses, conceals, knowing (1) con- property or abandons the cealment, probably deprive the owner of will or abandonment property. person property or services Penalty.—(1) A convicted of theft of (g) felony guilty of a and: $500 or more is with a value of exceeding (i) years fine not subject imprisonment or a $25,000 both; exceeding or (ii) pay property or the owner taken to owner shall restore property of the or services. value camera, a nominal car currency, keys amount and other personal trial, At property the Auth’s. Auth’s evidence; important piece of Tucker *6 she that testified she was “a hundred percent certain” that Tucker was the burglar blue/gray-hooded sweatshirt outside, then, home, and her inside as well as the man on the Target videotape. cross-examination, questioned
On Tucker Auth about incon- testimony statements, sistences her including from earlier the hue of the and sweatshirt whether she had told Detective Williams that earlier she was unable to a positive make identification because the had had suspect up his hood time; Auth entire that she had no responded recollection of that statement. Tucker his ended cross-examination ques- tioning Auth’s confidence her ability identify to members of race, specifically, another and how many African-Americans in her neighborhood.3 lived (2) (3) (4) subsection, Except provided paragraphs as of a and this person property convicted of theft or services with a value of less $500, guilty than is of a misdemeanor and: (i) subject imprisonment exceeding is to 18 months or a not fine both; exceeding $500 or and (ii) property pay shall restore the to taken the owner or the owner property value of the or services. subsequently significant
This Section was change amended without Chapter Maryland Chapters 25 of the Acts of and 393 and 394 Maryland of the Acts of 2008. questioned makeup neighborhood 3. Tucker Auth about the racial of her accordingly: makeup [DEFENSE The community COUNSEL]: racial of the live, you you community which you would indicate that the in which primarily live not African American? say [AUTH] al[l]. No I would not that at Okay? you give percentage [DEFENSE COUNSEL]: And could us you community? to believe be African American that is in that area, say neighbor my [AUTH]: I live in a rural so would to home, right, facing my gentleman. immediate is a Caucasian five gentle- next homes down are African American families. The gentleman live man—I sian, on comer—the across the street is Cauca- year and ago; he built his home about a half he to and a is new that fo- reflecting into evidence were entered Stipulations Tucker, of the both as source had excluded experts rensic blood DNA found inside and source of fingerprints and as the testified, in home, and Detective Williams the Auth’s outside investigation his regarding to the information addition immediately recog- had statement, Auth almost Tucker’s she witnessed burglars when Joyner nized Tucker Target videotape. Williams, inconsistences Detective On cross-examination her handwritten statement and testimony prior from Auth’s were such as lack of report explored, police Detective Williams in the insignia contempo- two any sweatshirt provide descrip- a failure to facial raneous statements impeach testimony Auth’s attempted Tucker also tion. that Tucker was the percent “a hundred certain” she was *7 police 5 of his having page Detective read burglar, by Williams he had written: report, where the hooded wearing gray that the male
Mrs. Auth stated other she first suspect the appeared sweatshirt be her door. to break into basement Mrs trying seen [had] up his hood the suspect the had Auth that because stated incident, the could not make a during entire time she of him. positive identification evidence, so testify, elected not the
At end of Tucker the instructions, and in about judge entertained discussion a cross-racial identification arguments regarding particular, a iden- that because cross-racial proffered instruction. Tucker case, a cross-racial identifi- tification was central to state’s instruction, from following language United using cation (D.C.Cir.1972) 552, (Bazelon, 469 F.2d Telfaire, States v. C.J., concurring), appropriate: was of a race
In witness is different identifying this case the it is more experience many of than the defendant. than of a different race mem- identify difficult to members next, say, across five homes from And the would area. are American families. street down African If is your experience, you bers of one’s own. this also own in evaluating consider it the witness’s You testimony. consider, course, also must of whether there are other present factors any this case which overcome such diffi- culty you identification. For example, may conclude had the witness has sufficient contacts members of the defendant’s that he have greater difficulty race would not a making reliable identification.
The State countered that cross-racial
identification
not
raised, so
appropriately
a cross-racial
instruction
not
should
be
given.
judge
trial
determined that the
presented
issue
call,”
explained
“close
but
that he
to give
wanted
instruction,
in Janey
upon
presented
based
discussion
645, 665-66,
cert.
(2006),
166 Md.App.
891 A.2d
denied,
(2006),
Conversely,
mere
fact
a witness denies
difficul
ty in making cross-racial identifications
not
should
deter the
considering
instruction,
trial
from
giving such an
if,
particularly
in the language of the
Cromedy[,
[State v.]
(1999)]
court,
158 N.J.
Accordingly, holding this case—that judge did not abuse in refusing give his discretion to the requested instruction on cross-racial in- identification—should not be terpreted holding that it is to appropriate give never such an Nor instruction. should the fact that no on instruction in the Crim- yet Maryland appears identification cross-racial Instructions serve as basis Jury inal Pattern an instruction. granting to consider such arbitrary refusal to one sentence judge to add The asked State Smith instruction, straight from allegedly “pulled 288,” Mack case, preceding at 880 A.2d case page Janey, was in issue. in which identification cross-racial actually referenced read: entire sentence is “no argue particular of the studies there Proponents apply ... think the other-race effect does reason to cases,” others in criminal whereas actual eyewitnesses [to] on identification “bear little that studies cross-racial contend to resemblance real-life crimes.” (citations omitted) Md. at
Smith> sentence, (alterations in nev- original). requested The State’s ertheless, postulated: to that cross-racial particular
There is no reason think criminal eyewitnesses to actual applies identification cases. sentence, and the entire
The trial included the State’s instruction, given jury, as it was to stated: cross-racial witness is of different race identifying this case the it is more experience many, than In the the Defendant. than mem- to members of a different race identify difficult you your their race. If is also experience, bers of own this evaluating testimony. fact the witness’s consider that You must also consider whether there are other factors difficulty in the present case which overcome such example, you may For conclude identification. had with members Defendant’s
witness sufficient contacts he any greater difficulty making race that would not have a reliable identification. cross-racial particular
There is no reason think that actual criminal applies eyewitnesses cases. burglary first and theft degree
Tucker was convicted both merged with the over The theft count was 500 dollars. *9 burglary sentencing, years, count for and Tucker received 15 all but 10 A years suspended. three-judge of the circuit panel sentence, the upheld court and Tucker an appeal noted the Court of Special Appeals.
In the of Special Appeals, argued Court Tucker that the trial judge specific erred the giving instruction on cross- identification, racial by admitting eyewitness evi- identification suggestive means, dence obtained impermissibly by admit- car, ting regarding evidence by denying Tucker’s his motion mistrial, by determining for also evidence was conviction, sufficient to sustain the in addition to error plain arising from the closing argument. State’s The Court Special Appeals, unreported opinion, affirmed the convic- tion, specifically holding that the cross-racial instruction did law, applicable Maryland not misstate because the sentence true to the Smith “remain[ed] Court’s conclusions regarding the ultimate efficacy of cross-racial identification.” Tucker certiorari, petitioned asking us to address formulation of the jury instruction.
II. Discussion Jury A. Instruction issue presented sole this case is whether instruction, as given, law, was a correct statement of parties although junctures at suggested various have the whole identification, issue including cross-racial whether the facts of trial generated need for a cross-racial instruction, jury only is before us. We address jury whether the instruction was correct statement law; not, Tucker asserts that it while State asserts that was.
Jury governed by 4-325, instructions Maryland are Rule which states:
(a) give When Given. The court shall instructions the conclusion of all the evidence closing and before arguments and may supplement them later at a time when give also the court In its discretion appropriate. instructions. and interim opening
(b) file written re- may Requests. parties Written of the evidence or before the close at for instructions quests the court. time fixed any do so at and shall (c) any of request at the may, The court How Given. the the law and shall, jury applicable the as to instruct party The court binding. are which the instructions extent or, of the with the consent orally instructions give its may need not The court orally. in instead of writing parties, fairly if covered instruction the matter requested a grant actually given. by instructions
(d) the jury, In the instructing Evidence. Reference to in order to the evidence refer to or summarize may court event, In the decided. the issues to be clearly present the the sole of jury the that it is shall instruct court evidence, credibility of the and the facts, weight of the the witnesses.
(e) or giving as error the Objection. may assign No party on party objects an instruction unless give the failure to jury, after the court instructs promptly the record objects and party matter to which the stating distinctly the of Upon request any party, objection. of the grounds hearing out of the objections receive the court shall court, own initiative or on An on its jury. appellate cognizance however take party, suggestion instructions, of the rights in material to the error plain defendant, object. a failure to despite (f) any party Argument. Nothing precludes in this Rule to the case is different applicable that the law arguing from court instructions of the described from the law binding. to be stated not 4-325(c) the trial court requiring Rule interpreted
have We (1) in- requested instruction when: give requested (2) law; the requested of the is a correct statement struction (3) case; of the under the facts applicable instruction is fairly covered instruction was requested the content of the 380
elsewhere instruction actually given. Dickey State, 187, 197-98, (2008); Md. 946 A.2d Thomp- State, son v. 291, 302-03, 393 Md. (2006); 901 A.2d Patterson v. 677, 683-84, 356 Md. 741 A.2d (1999).
Here, we are upon specifically called to address one phrase instruction, of an that being, particular “There is no reason to think that cross-racial applies to eyewitnesses in cases,” actual criminal alleged by the State to be a correct Smith, statement of the law upon based our opinion Smith, at 297. we were called upon to address whether judge erred preventing Smith making from closing Mack, remarks a case in which he and African-Americans, both being were tried for armed robbery and assault of a white victim.4 commentaries, After reviewing *11 cases from jurisdictions, other and this history State’s “ permitting defendants to ‘discuss the evidence and all rea- sonable legitimate inferences which be drawn from ” evidence,’ id. the facts in 880 A.2d at quoting State, Henry 204, 230, 324 Md. (1991), 596 A.2d we determined that erred when she prevented defense counsel from arguing implications of cross-racial identification, where the victim had testified that she had a heightened ability to identify faces:5
Defense counsel clearly was entitled to challenge vic- [the tim’s] “educated” identification of the defendants arguing charged handgun Smith and Mack also were with violations. 4. testifying faces,” In good addition to "extremely that she was with victim stated: Well, lay I am a teacher and I watch studying mannerisms. I’ve been painting people art and girl. since I was a little I’m obsessed with people’s postures way you’[re] looking seeing [at] them and going what's on. so, myself very, very And I think good people. [of] [as] study [I] have, people faces and I I look for features on that make them more distinct, apple— Adams 468, 475, (2005) (alterations Smith v. original). should not be accorded her identification to identify to them. ability to her own that she credited weight bias affects to which own-race the extent juncture At this available based on the is unclear eyewitness identification issue, cannot state with so that we addressing this studies identification is difficulty cross-racial certainty that Here, however, knowledge. matter of common established was anchored of the defendants the victim’s identification these circum- identify faces. Under ability her enhanced to argue have allowed stances, should been defense counsel closing argu- difficulties of cross-racial ment. in refusing court erred
Therefore,
that the trial
we conclude
on cross-racial identifi-
to comment
to allow defense counsel
in closing argument.
cation
488-89,
Id. at effect,” we had Smith, “cross-race explaining when laboratory or field dichotomy between to discuss the occasion situations, recognizing that: “real-world” studies and and scholars researchers among of contention point Another effect is whether of the cross-race regarding legitimacy field studies are laboratory the results of both victim or wit- situations where a to “real-world” applicable attempt later must an assailant and then ness confronts A. L. & Elizabeth Gary See Wells identify person. Olson, Eyewitness The Other-Race Identification: Effect It?, Pol’y Pub. & LawW Psychol. What Do We Do About *12 (2001). that there 230, argue the studies Proponents 230 that the other-race reason to think particular is “no effect apply actual criminal eyewitnesses in [to] ... does not cases,” id., on cross- others contend that studies whereas little resemblance racial “bear real-life identification Testimo- Identification Bartolomey, Cross-Racial crimes.” It, & Psychol. Pol’y 7 Pub. Not To Do About ny and What 249(2001). 247, Law added). and italics 484, (underlining 296-97
Id. at 880 A.2d at are two sides to that there sentence—suggesting It last is the 382 crimes,
the issue of cross-race effect when real as opposed to situations, laboratory are involved—with which we are con- sentence, cerned. When the State offered “There is no particular reason to think that cross-racial ap- plies eyewitnesses cases,” only actual criminal it was one one providing part, hypothesis, from the dichotomy of explained. theories that were In so doing, the State mischar- acterized what we were suggesting Smith—that there were commentators who supported both and denied the real-life effect of cross-racial identification—by offering only that por- tion of the sentence that referred to commentators who denied the cross-race effect in real life situations. The proffer was an law, and, result, inaccurate statement of the as a we hold that it was error for the trial judge given to have the instruction requested by State.
B. Harmless
Error
We now turn to whether
judge’s
error was
recently
harmless.6 We
addressed the application of the
Bellamy
v.
308, 332-33,
harmless error rule in
403 Md.
1107,
(2008) (internal
omitted),
citations
when
Harrell,
Judge
Court,
Glenn T.
writing
noted:
State[,
In Dorsey v.
638,
(1976)]
When an court, its own review reviewing upon independent unless a belief, record, beyond a the is able to declare a doubt, way the error in no influenced the reasonable that verdict, and a such error cannot be deemed “harmless” reviewing court must thus be reversal is mandated. Such possibility that there is no reasonable satisfied erroneously admitted or complained evidence of-whether the rendition of the excluded-may have contributed to guilty verdict. analysis, we are not to find performing a harmless error Instead, believe, “what evidence to weigh
facts or evidence. it, and what facts flow from that weight given what to be “ jury ... to determine.” ‘Once it has evidence are for the committed, been determined that error was reversal is verdict; required unless the error did not influence the if did not only play any jury’s error is harmless role reviewing possibility verdict. The court must exclude that ” “ beyond say a reasonable doubt.’ ‘To that an error did is, rather, not contribute to the verdict find error unimportant everything in relation to the jury else consid- ” ered on the issue in question, by revealed the record.’ ... “harmless error rule has been and should be carefully circumscribed.” Harmless error review standard of review most favorable to the defendant short of an automatic reversal.
(Citations omitted). standard, upon Dorsey Based we say regarding cannot that the error the cross-racial identifica- doubt, beyond tion instruction was harmless a reasonable because the Auth was so central all other to the conviction and because evidence was conceded- ly of her now tainted testimony—testimony corroborative discounting adverse effect of cross-racial potentially bias the erroneous instruction. certainly we are aware that
Although exclusive recently goods permits drawing stolen of an possession strong enough inference of fact to sustain a conviction *14 thief, case, the or in the the we possessor present burglar, inference can suggest negated by also that the be satisfacto Mele, 437, 449, ry explanation. Brewer v. 267 Md. 298 A.2d (1972) (“We long consistently have and held that recently of stolen a satis possession goods, exclusive absent factory explanation, permits drawing the of an inference of conviction____”). strong enough fact to sustain a case, Tucker, significant Joyner, be present physically possessed Target credit card and that Tucker Williams, given in to Detective suggested statements and evidence, into that he was a in participant introduced witless attempted purchase goods. during Whatever occurs case, nevertheless, persuaded the retrial of this we are not in beyond judge’s a reasonable doubt that error formulating the instruction was harmless. THE
JUDGMENT OF COURT OF SPECIAL APPEALS REMANDED REVERSED. CASE TO THAT COURT TO REVERSE THE WITH INSTRUCTIONS JUDGMENT OF AND TO REMAND THE CONVICTION CASE TO THE ANNE CIRCUIT COURT FOR ARUNDEL COUNTY A TRIAL. IN AND THE FOR NEW COSTS THIS COURT BE PAID BY ANNE COURT OF SPECIAL APPEALS TO ARUNDEL COUNTY.
HARRELL, J., in opinion dissents and files which ADKINS, JJ., join part. MURPHY MURPHY, J., dissenting files a opinion. HARRELL, Judge, which MURPHY
Dissenting Opinion ADKINS, JJ., join in part. First, two separately appeal write reasons. (but instances) State, I in most parties primarily imagine, trials, either expert testimony future criminal where jury sought subject or a instruction is on the proffered difficulties, Frye1-Reed2 or cross-racial identification to seek a (and in limine in those cases to make a hearing judges hearing) regarding validity determination based on that underpinning and reliance vel non of the scientific of that Second, case, I would affirm the subject. present jury convictions rendered Court for Anne Circuit analy Arundel based on of harmless error County, application sis.
I.
appear
reported Maryland opinions
There
to be three
which a flagship
propriety
issue was the
instructions or
closing argument
involving reputed
cross-racial
State,
case,
present
difficulties—the
Smith v.
(2005),
Md.
Because (due to the courts appellate case reached our present in limine to evaluate the hearing or Frye-Reed absence of a science), validity reliability and resolution of conclusive necessary has been shielded from underlying science question the threshold Let us consider judicial scrutiny.4 have the cases consequences, to the been proceeding before move, circum- appropriate in the urge far. I someone so for a trial stances, hearing or in limine and for a Frye-Reed validity rule on the scientific consider and judge to If the science withstands underlying science. reliability of the (in case, applying latter scrutiny in limine Frye-Reed or could be devised pattern instruction Frye-Reed principles), future cases litany so as to avoid standing included here. represented of the kind
II.
sought by
present
Tucker
the instruction
Whether
is, me,
for
problematic.
the evidence
generated
case was
that it
that we must assume
present purposes,
suppose,
judge,
parties
and the
jury,
to the
apparent
victim,
Auth,
Ms.
Tucker is African-American
(whatever
phys-
of observable
the bundle
Caucasian-American
only
record
portend).
those classifications
ical attributes
identify
and distin-
ability
on Ms. Auth’s
bearing
evidence
(or
per-
race of
African-Americans
other
guish between
sons)
fishing expedition by
unsuccessful
hugely
came from a
of Ms. Auth when
cross-examination
during
defense counsel
*16
addressing this
based on the available studies
identification is unclear
issue,
difficulty
certainty
in cross-
cannot state with
that
so that we
knowledge.”
matter of common
identification is an established
racial
A.2d at 300.
388 Md. at
any
"race”
individu-
Beyond
of what is "race” and which
4.
the nuances
purposes
bias
fairly may
a member of for
of own-race
al
be deemed
"races,”
decidedly
persons
other
there
regarding identification of
of
the asserted
appears
consensus which direction
to be no scientific
Hispanic ancestry
persons
apparent Asian
where
of
difficulties run
7-8,
Smith,
at 296 nn.
implicated.
at 481-82 nn.
880 A.2d
are
7-8.
that she
limited substantive
possessed
he tried to establish
community
to African-Americans
the rural
where
exposure
at the time of the crime. The defense’s efforts
she resided
that, to the
yielded testimony
contrary
apparently
what
he
establish,
hoped to
Ms. Auth lived on a street where 10 of the
Thus,
by
13 homes were
African-American
occupied
families.
essentially,
evidentiary predicate “generating”
sole
sought
instruction
here was that the victim and the defendant
If
presumably had different skin colors.
is all
generate
evidentiary
takes to
basis for the giving of a
instruction,
cross-racial identification
much
the mis-
Smith,
489-500,
chief I
my
foresaw
dissent
Assuming, that Tucker was entitled the evi- instruction, difficulty dence to a cross-racial identification sought instruction he was an accurate statement of the law (itself “if’), big and that it was error to engraft onto his for, proposed instruction what the State asked nonetheless conclude, record, on this such error was beyond harmless reasonable doubt.
Whatever
nature of the difficulties of a cross-racial
identification, that was not central
to Tucker’s
trial.
eyewitness
actual
identification difficulties here were attrib-
uted to
acute angles
and time available for Ms. Auth’s
observations of him
breaking
while he was
into and moving
Smith,
Compare
(apparent
about by general, pattern covered these factors were identification instruc- The cross-racial given. instruction important. tion was not implication his view of the freely argued
Defense counsel requested, instruction he without the cross-racial at the by tacked on reference to the errant sentence argue significance not what the The State did request. State’s meant to the case. of its added sentence brief, in its there was substantial points out As State implica- racial quite apart Tucker’s from guilt evidence of in to observe Tucker opportunities Auth had two tions. Ms. description Her home as the crime unfolded. or about her on the videos clothing aligned image with his his physique addition, the ex- accounting Target from the stores. the sex of regarding the victim mis-perception plained Joyner co-hort, positively Ms. Auth identified Joyner, Tucker’s possession crime. Tucker’s participant as the other temporal proximity credit cards close use of the stolen break-in, circumstances of the loss extraordinary and the car, timing police and the of his of Tucker’s and destruction that, conviction. I am persuaded, endorsed the report about doubt, errant sentence included that the beyond a reasonable contributed given identification instruction the cross-racial Thus, I affirm the verdict. would nothing guilty to the County jury. Anne Arundel judgment of this only Judge Part II of this dissent. joins Judge MURPHY harmless of Part II addressed to joins only part ADKINS error. MURPHY, Judge.
Dissenting Opinion by Judge Harrell’s everything I with almost Although agree II and write join only part opinion,, of the dissenting opinion, admissibility that—while the my opinion separately express be decided evidence should of “cross-racial identification” be applicable test not hearing—the Frye/Reed in limine test does or does Frye/Reed Whether the to such evidence. should identification” evidence be to “cross-racial apply at the judge presiding in the first instance decided in limine hearing.