            REPORTED

IN THE COURT OF SPECIAL APPEALS
         OF MARYLAND

               No. 2237

        September Term, 2012



      MARCUS LEE SMILEY


                  v.


      STATE OF MARYLAND




 Krauser, C.J.,
 Matricciani,
 Moylan, Charles E., Jr.
  (Retired, Specially Assigned),

                            JJ.



        Opinion by Moylan, J.


       Filed: January 29, 2014
       Forfeiture by wrongdoing is a recent and, indeed, incongruous recruit to the ranks of

the hearsay exceptions. Its energizing focus is not on the inherent trustworthiness of the

hearsay declarant but on the inherent skulduggery of the hearsay opponent.

                         An Enigmatic Factual Background

       The appellant, Marcus Lee Smiley, was convicted in the Circuit Court for Wicomico

County by a jury, presided over by Judge D. William Simpson, of the attempted murder in

the first degree of Travis Green and related assault and handgun offenses. He was sentenced

to a term of life imprisonment plus ten years.

       There is an obvious back story linking the three leading characters in this criminal

drama, but the trial record is frustratingly obscure as to what exactly that narrative thread

might be. What we do know is that the appellant, Marcus Lee Smiley, was a drug dealer.

We also know that the man he shot for no apparent reason, Travis Green, was also a drug

dealer. What is missing is a motive.

       As unenlightening as the trial testimony is, however, it will help to frame the

appellate contentions that follow. At the time of the shooting, December 10, 2011, Travis

Green had just spent the night at 729 Dennis Street in Salisbury, the home of Amanda

Faulcon. Ms. Faulcon is the mother of Green's three young children, who live at that address

with their mother. Just after arising, Green walked out the back door, stood on the back

steps, and just looked around, while smoking a cigarette. At that point, he "observed this

guy sitting on the next step, to the left." He was describing the "house next door to

Amanda's, to the left, an abandoned house." Green said that he did not "know him
personally," but he identified that person in the courtroom as the appellant. Green described

the appellant's behavior.

              Yeah, he was just sitting there, looking a little bogie, crazy, looking
       crazy and everything, I didn't pay it no mind, you know, when I went there
       before, in the past I've seen people sitting on that back step and I, you know,
       it was none of my business, I didn't pay him no mind.

       Amanda then called Green back in the house as she knew that he was about to leave.

Green's truck was parked behind Amanda's house. He went out the rear door and

approached the front of the truck. As he did so, the person who had been sitting on the steps

next door came up to him and asked an innocuous question. As Green opened the driver's

side door, that individual suddenly fired a shot at Green.

               Then that's when he was saying what he said to me, Did you see where
       he went? And I looked back and I just, like, shook my head, like, you know,
       I didn't know what he was talking about. And then he fired a shot.

(Emphasis supplied).

       Green attempted to escape the fire by sliding across the front seat of the truck from

the driver's side to the passenger's side. The shooting continued.

               A. I jumped in the truck, as soon as I felt the shot to my arm I jumped
       in the truck to the, I tried to, you know, try to, I didn't know what he was, you
       know, what this guy was doing.

              Q. When you jumped in the truck, what did you try to do?

               A. Slide out the passenger door, and I did, but he fired a shot
       obviously over the, over the, you know, towards my way, when I was trying
       to get out of the truck, and I slid out, and I looked up and he was trying to put
       on his mask. And I tried to dart, I had time enough to run back in the house
       from that point, from the, because you see in the truck, from the truck door the

                                             -2-
         back door was right there, but I didn't want to take a chance and run back in
         the house and this fool running behind me and my kids in there, and Amanda,
         so I just kept on running beside the house. And I turned around, I don't know
         why I turned around, to see if he was still, if he was still behind me, and then
         came pow, pow, two more times.

                  Q. How many times were you hit?

                  A. Three times.

                  Q. Where were you hit?

              A. In my leg, my – well, the first shot was my arm, my leg and my
         abdomen.

(Emphasis supplied).

         Green insisted that he did not know the appellant before that morning, but

nonetheless said that he had "heard of him." During the encounter, the two men were within

about five feet of each other. Green ran to the side of the house as two final shots were

fired.

                A. I didn't go in the, I didn't go in the back, in the back door, I ran to
         the side of the house. That's where the last two shots were fired into my body,
         and he ran off.

                  Q. Okay. So, just for clarification, you run this way –

                  A. Right there, I made it right there.

                  Q. And you're shot again here?

                  A. Yes. I looked back and he was right behind me, he was on my
         heels.

(Emphasis supplied).


                                                -3-
      After the appellant's gun was empty, Green sought some explanation for the shooting,

but the appellant fled the scene without answering.

             Q. Did the Defendant ever ask you for anything at all?

             A. No. I asked him. On the side of the house, what, what, you know,
      what is it, a robbery? What is this about, money? What is this about?

             Q. Did he say anything?

             A. No.

             Q. At what point did that occur? When did you ask him that?

             A. On the side of the house.

             Q. Okay.

             A. Yeah.

             Q. As you were running?

             A. Yeah. No, not while I was running, after he fired the last shot, I
      said, boy, what you keep shooting me for? He kept clicking the gun, you
      know, it wasn't no more bullets left in it, I said what are you still trying to
      shoot me for, what is this about, money? I'm asking, right?

             Q. Did he answer?

             A. No, he just took off after.

(Emphasis supplied).

      Amanda drove Green to the hospital. Green next remembers waking up in the Shock

Trauma Unit of the University of Maryland Hospital in Baltimore, where he remained for




                                            -4-
five days. He had had a conviction in federal court for possession of crack cocaine and at

the time of the shooting was apparently working in cooperation with federal drug authorities.

       The entire confrontation between the appellant and Travis Green was witnessed by

Elmer Duffy. On December 13, 2011, three days after the shooting, Elmer Duffy gave a

statement about what he had observed. That statement was recorded and transcribed and

subsequently introduced into evidence.

       On the morning of December 10, 2011, Duffy had arrived to do some house painting

at the vacant house immediately adjacent to Amanda Faulcon's home at 729 Dennis Street.

Duffy knew the appellant from their frequent playing of basketball together some years

earlier. Duffy also knew the appellant's mother and his sisters. When Duffy first saw the

appellant standing in the driveway, the two greeted each other.

       So I spoke to him, "Hey, Mark." He said, "Hey, Elmer." And I went on in the
       house. When I went in the house, I let the blinds up so I could see what he be
       doing[.]

(Emphasis supplied).

       Duffy then described the shooting scene itself.

              A      He [Travis Green] stood there at that back door and looked
       around. Then when he came off that back stoop, he walked around the back
       side of his vehicle, opened this door up –

              Q      Okay.

              A      – and when he got in, I look and there was Mark running.

              Q      Okay. So –


                                            -5-
        A     Running towards him.

        Q     The guy that come out of the house went to the driver's side of
the –

        A     He went around the back of his vehicle, then got into the driver's
side.

        Q     Open the driver – okay.

      A      And once he got in the driver's side, I looked and Mark was
running towards that vehicle coming up from the back side.

        Q     Okay. From where he was standing?

      A       From where he was standing. So that means he came up in the
back of the vehicle.

        Q     Okay.

        A     And he ran around on this side, opened that door and just pow,
pow, pow, pow, pow, and I was, like – I'm standing to the window, and I'm,
like, damn. I figured the guy was dead, so help me God. Some kind of why
he jumped out on this side –

        Q     Okay.

        A     – on the ground –

        Q     Come out the passenger's side on the –

       A      Come out the passenger's side on the – and jumped on the
ground. Mark came around the front side of the vehicle and like he was trying
to shoot him again. And what made me think that that guy was shooting back
at Mark was because Mark was ducking. Do you understand what I'm saying?

        Q     Right.

       A      When he ran around this side to try to shoot the guy, he ducked
and ran back to this side. Then the guy got up off the ground, and then I don't

                                     -6-
       know if he shot at Mark or Mark shot him again, then he bust in the back
       door. Then when he bust in the back door, like, Mark shot a couple more
       times. And then when Mark come running back this a way[.]

(Emphasis supplied).

       Elmer Duffy did not testify at the appellant's trial on October 10, 2012, for the

obvious reason that he was murdered on February 20, 2012. The introduction into evidence

of his recorded statement to the police is the most noteworthy of the contentions before us.

       Ironically, the testimony of the appellant himself helped to fill in what otherwise

might have been arguable gaps in the State's case. The appellant placed himself right at the

scene of the crime at approximately 8:30 a.m. on December 10, 2011. The appellant

testified that he went to the area, specifically to a Richard Blake's house, because he "had

some furniture that needed to be taken to Delmar Recycling." Richard Blake's house was

next door to the house where Elmer Duffy was to do some painting. Elmer Duffy arrived

in the area about 15 minutes after the appellant got there. The two men, who knew each

other, conversed for a time. At that point, two of the appellant's "associates" came up and

inquired of the appellant if he knew where they could get some drugs. "Associates" means

buyers of narcotics and "anything" means narcotic drugs.

              A      Well, like I said, Mr. Duffy pulled up, and then I had two friends
       that come to me, associates that came to me and asked me did I know anybody
       that had anything. I said no, I don't know nobody got anything because –

              Q      What does that mean, had anything?

              A      Talking about drugs.


                                            -7-
(Emphasis supplied).

      In his further testimony, the appellant elaborated:

            THE WITNESS: Like I said I had two associates who come up,
      approached me, asked me did I know anybody who had anything as far as –

      BY [DEFENSE COUNSEL]:

             Q      Mr. Smiley, what does that mean?

             A      Drugs.

             Q      And what do you mean by associates?

             A      Well, two guys that I knew. Not friends but ...

             Q      Not friends?

             A      People that I associate with.

             Q      Okay. And they came up, and what did you do after they came
      up?

             A      Well, like I said, they asked me did I know anybody that had
      anything.

(Emphasis supplied).

      From that point on, the appellant took up the cause of getting his associates some

drugs, as he took the associates' purchase money.

             THE WITNESS: Okay. Well, what I did next was, I took the money
      that he had given me, I took the money, and I was in the process, like I say he
      asked me did I know anybody had anything, I said no, I don't know anybody
      have anything. He said, well, he knows Travis[.]

(Emphasis supplied).


                                           -8-
       Even if the appellant and Travis Green were not close acquaintances, the appellant

knew that Travis Green sold drugs. The appellant waved to Green, called him by name, and

ran in his direction in an effort to purchase drugs.

       I ended up going towards Mr. Green. I had about, about, the house was about
       40 to 50 yards away, and I went to Mr. Green. And I didn't know him, I was
       just going to him, and as I was going to him I waved my hand in the air like
       this, I was asking him, I said Travis, I'm trying to get something, I'm trying to
       get something. And he looked at me like I'm crazy, and I'm looking at him
       like he's crazy, because we didn't know each other. We didn't know each
       other. And I said I'm going to, I'm running to him trying to buy something,
       trying to get some drugs, and in the process of me running to him I get about
       a good, like I said, a good about 40, 50 yards away from him, and when I get
       about a good 25 to 30 yards away, and he said –

              ....

       As I was getting closer to Travis, about 15 yards away, and he's standing, he's
       standing on the back porch, he's standing on the back porch, and as though
       he's talking to somebody in the driveway, and like I said, as I'm running
       towards him saying, I'm trying to catch him before he leaves, and I'm trying
       to, trying to say I want to get something from him. And in the process, like
       I said, somebody, he act as though he's talking to somebody in the driveway.
       And as I get to about, a good ten yards away from him, I see this person in all
       black, with a black ski mask on, he jumps in between the house, I hear two
       shots. When I heard two shots, I immediately hit the ground. I stayed on the
       ground about a good five to eight seconds. I look up, I don't see Travis on the
       back porch anymore.

(Emphasis supplied).

       But for the sudden appearance of the mysterious masked gunman, the appellant

essentially corroborated the versions of events given by both Travis Green and Elmer Duffy.

The appellant's placing of himself at the scene of the crime and his acknowledgment that,

to some extent at least, he knew Green certainly dispel any lingering doubt about the

                                             -9-
reliability of Green's photographic identification of the appellant. The fact that the appellant

knew Green, moreover, gives rise to a permitted inference that Green knew the appellant.

                                     The Contentions

       The appellant raises three contentions.

       1.     He contends that at a pretrial hearing on September 27, 2012, Judge
              Leah J. Seaton erroneously ruled that the out-of-court declaration of
              Elmer Duffy, who was unavailable as a witness because he had been
              murdered, was admissible via an exception to the rule against hearsay,
              Maryland Rule 5-804(b)(5)(B) and Courts and Judicial Proceedings
              Article, § 10-901;

       2.     He contends that at a pretrial hearing of June 8, 2012, Judge W.
              Newton Jackson, III, erroneously failed to suppress the victim, Travis
              Green's, extrajudicial identification of him from a photographic array;
              and

       3.     He contends that at trial Judge Simpson erroneously excluded
              testimony by his proposed expert witness on the frailties of eyewitness
              memory and identification.

                    The Doctrine Of Forfeiture By Wrongdoing

       Happily, all parties are in full agreement on one thing. Elmer Duffy was unavailable

as a witness on October 10, 2012 because Elmer Duffy had been murdered on February 20,

2012. His out-of-court declaration to the police of December 13, 2011 was quintessentially

hearsay when proffered in evidence in lieu of his live appearance. The State nonetheless

sought to qualify it as an exception to the Rule Against Hearsay pursuant to Maryland Rule

5-804(b)(5)(B), which provides:

             (b)      Hearsay exceptions. The following are not excluded by the
       hearsay rule if the declarant is unavailable as a witness:

                                             - 10 -
               ....

               (5)    Witness unavailable because of party's wrongdoing.

                      ....

                     (B) Criminal causes. In criminal causes in which a witness
       is unavailable because of a party's wrongdoing, admission of the witness's
       statement under this exception is governed by Code, Courts Article, § 10-901.

       Although Rule 5-804(b)(5)(B), effective as of January 1, 2006, now masquerades as

a typical hearsay exception, it is, in its essential nature, something quite different. Like many

hearsay exceptions, it is, of course, dependent on necessity, to wit, upon the unavailability

of the live witness. Unlike most other exceptions, however, its complementary raison d'être

is not the reliability of the assertion. Its animating rationale, rather, is a policy position that

the opponent of a hearsay declaration will not be permitted to profit from his own

wrongdoing in procuring the absence of the declarant as a witness.

       Although the provenance of the principle goes deep into Anglo-American common

law, its current prominence is as a collateral consequence of the Supreme Court's watershed

decision of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004).   The Supreme Court's decision was that an out-of-court declaration that is

"testimonial" in nature cannot escape the rigors of the Confrontation Clause even if it

otherwise qualifies as an exception to the Rule Against Hearsay. With Crawford, therefore,

much of the typical prosecutorial arsenal was rendered useless. As alternative solace, the

prosecution turned to the venerable, but theretofore largely neglected, principle of forfeiture


                                              - 11 -
by misbehavior. If the unavailability of a witness is a result of a misdeed by a criminal

defendant, that defendant is deemed to have forfeited any right to use the Confrontation

Clause to bar even a testimonial out-of-court declaration by the missing witness.1 The

switch in prosecutorial tactics was immediate and nationwide.2

      In Davis v. Washington, 547 U.S. 813, 833, 126 S. Ct. 2266, 165 L. Ed. 2d 224

(2006), the Supreme Court reaffirmed and elaborated on the doctrine of forfeiture by

wrongdoing:

      1
          The Crawford opinion itself, 541 U.S. at 62, explained:

      [T]he rule of forfeiture by wrongdoing (which we accept) extinguishes
      confrontation claims on essentially equitable grounds; it does not purport to
      be an alternative means of determining reliability.

(Emphasis supplied).
      2
         Professor Byron L. Warnken, "'Forfeiture by Wrongdoing' After Crawford v.
Washington: Maryland's Approach Best Preserves the Right to Confrontation," 37 U. Balt.
L. Rev. 203, 229 (2008) (hereinafter "Warnken"), described this shift in prosecutorial
tactics:

      [P]ost-Crawford, the doctrine of forfeiture by wrongdoing has assumed
      greater importance in evidentiary battles over admissibility of hearsay
      statements by unavailable, out-of-court declarants. Prior to Crawford, when
      the Roberts test controlled, a prosecutor needed only to persuade the trial court
      of the reliability of a statement as a condition of its admission. After
      Crawford, prosecutors must rely much more heavily on the forfeiture doctrine
      and must demonstrate that the defendant procured the unavailability of the
      witness.

(Emphasis supplied).




                                            - 12 -
      [W]hen defendants seek to undermine the judicial process by procuring or
      coercing silence from witnesses and victims, the Sixth Amendment does not
      require courts to acquiesce. While defendants have no duty to assist the State
      in proving their guilt, they do have the duty to refrain from acting in ways that
      destroy the integrity of the criminal-trial system. We reiterate what we said
      in Crawford: that "the rule of forfeiture by wrongdoing ... extinguishes
      confrontation claims on essentially equitable grounds." That is, one who
      obtains the absence of a witness by wrongdoing forfeits the constitutional
      right to confrontation.

(Emphasis supplied).

      The Supreme Court itself had applied the doctrine of forfeiture by wrongdoing as far

back as Reynolds v. United States, 98 U.S. 145, 158, 8 Otto 145, 25 L. Ed. 244 (1878):

             The Constitution gives the accused the right to a trial at which he
      should be confronted with the witnesses against him; but if a witness is absent
      by his own wrongful procurement, he cannot complain if competent evidence
      is admitted to supply the place of that which he has kept away. The
      Constitution does not guarantee an accused person against the legitimate
      consequences of his own wrongful acts. It grants him the privilege of being
      confronted with the witnesses against him; but if he voluntarily keeps the
      witnesses away, he cannot insist on his privilege. If, therefore, when absent
      by his procurement, their evidence is supplied in some lawful way, he is in no
      condition to assert that his constitutional rights have been violated.

(Emphasis supplied).

      The doctrine is, indeed, traced as far back as Lord Morley's Case, 6 How. St. Tr. 769,

before the House of Lords in 1666. See also 6A Lynn McLain, Maryland Evidence, §

804(5), "When Declarant's Unavailabity Is Obtained By Wrongdoing of Opponent Of

Hearsay" (3d ed. 2013); Joseph F. Murphy, Jr., Maryland Evidence Handbook, § 805(A)(1),

"Forfeiture by Wrongdoing" (3d ed. 1999, 2008 Cum. Supp.). In the wake of Crawford v.



                                           - 13 -
Washington, however, this theretofore modest equitable doctrine took on a far greater

significance.

       Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008),

completed the trilogy of Supreme Court opinions dealing with forfeiture by wrongdoing. In

fine-tuning the doctrine, Giles stands for the unremarkable proposition that it is not enough

that the wrongdoing of the defendant shall actually have caused the unavailability of the

witness. It is further required that the wrongdoing have been perpetrated for the purpose of

causing the witness to be unavailable. It is a specific-intent doctrine. In Giles, the

wrongdoing had been Giles's murder of his ex-girlfriend, who thereby became the

unavailable witness. Giles's testimony, however, had been that, in the course of a hot-

tempered struggle, he had killed the ex-girlfriend in self-defense. The California court

required no showing of an intent to make the victim unavailable as a witness. It was for

ignoring that critical element that the Supreme Court reversed.

              The state courts in this case did not consider the intent of the defendant
       because they found that irrelevant to application of the forfeiture doctrine.
       This view of the law was error, but the court is free to consider evidence of
       the defendant's intent on remand.

554 U.S. at 377 (emphasis supplied).

       Two excellent analyses of the prosecutorial response to Crawford's new interpretation

of the Confrontational Clause are Warnken, 37 U. Balt. L. Rev. 203, and Paul W. Grimm

and Jerome E. Deise, Jr., "Hearsay, Confrontation, and Forfeiture By Wrongdoing:



                                            - 14 -
Crawford v. Washington, A Reassessment of the Confrontation Clause," 35 U. Balt. L. F.

5 (2004) (hereinafter "Grimm").

       In the case now before us, by dramatic contrast, this intent or motivation element

poses no remote problem. The two intercepted telephone calls from the appellant sending

the word to his nephew to eliminate Duffy emphatically proclaim the appellant's purpose and

intent of "mak[ing] sure that boy don't come to court."

       Maryland's quick response to Crawford v. Washington and to the new battlefield

conditions manifested itself within the year in Chapter 446 of the Acts of 2005, effective

October 1, 2005, now codified as Maryland Code, Courts and Judicial Proceedings Article,

§ 10-901:

       § 10-901. Admission of statement in a criminal case.

               (a) In general. – During the trial of a criminal case in which the
       defendant is charged with a felonious violation of Title 5 of the Criminal Law
       Article or with the commission of a crime of violence as defined in § 14-101
       of the Criminal Law Article, a statement as defined in Maryland Rule 5-801(a)
       is not excluded by the hearsay rule if the statement is offered against a party
       that has engaged in, directed, or conspired to commit wrongdoing that was
       intended to and did procure the unavailability of the declarant of the
       statement, as defined in Maryland Rule 5-804.

              (b) Hearing. – Subject to subsection (c) of this section, before
       admitting a statement under this section, the court shall hold a hearing outside
       the presence of the jury at which:

                     (1) The Maryland Rules of Evidence are strictly applied; and

                     (2) The court finds by clear and convincing evidence that the
       party against whom the statement is offered engaged in, directed, or conspired
       to commit the wrongdoing that procured the unavailability of the declarant.

                                            - 15 -
              (c) Exceptions. – A statement may not be admitted under this section
       unless:

                      (1) The statement was:
                              (i) Given under oath subject to the penalty of perjury at
       a trial, hearing, or other proceeding or in a deposition;
                              (ii) Reduced to writing and signed by the declarant; or
                              (iii) Recorded in substantially verbatim fashion by
       stenographic or electronic means contemporaneously with the making of the
       statement; and

                     (2) As soon as is practicable after the proponent of the
       statement learns that the declarant will be unavailable, the proponent notifies
       the adverse party of:
                             (i) The intention to offer the statement;
                             (ii) The particulars of the statement; and
                             (iii) The identity of the witness through whom the
       statement will be offered.

(Emphasis supplied).

                                     Colkley v. State

       The first and only Maryland appellate case on the forfeiture by wrongdoing doctrine

was Colkley v. State, 204 Md. App. 593, 42 A.3d 646 (2012), rev'd on other grounds, 432

Md. 650, 69 A.3d 1104 (2013). Colkley actually dealt with two separate and completely

unrelated invocations of the forfeiture doctrine, an unsuccessful invocation by the defense

and a successful invocation by the State.

       At an earlier trial, a witness had given some marginally helpful testimony for the

defendant. That witness, however, was unavailable for the defendant's retrial because of an

intervening conviction for perjury. The defendant blamed the State for having brought

about that unavailability by that conviction. The defendant's invocation of the forfeiture

                                            - 16 -
doctrine, however, was twice-curst. In the first place, the State's legitimate and successful

perjury prosecution was not a wrongdoing. In the second place, there was no remote

showing that the perjury prosecution had been undertaken for the purpose of making the

witness unavailable. That fatal lack of intent was a straightforward application of Giles v.

California.

       The second invocation of the forfeiture doctrine was by the State and it was

successful. It bore a striking resemblance, moreover, to the case now before us. A 17-year-

old co-defendant gave a taped statement to the police shortly after his arrest, implicating the

defendant Colkley. Colkley learned of that fact and subsequently, from jail, made telephone

contact with two separate confederates. One of them testified for the State and described

Colkley's conversation with him.

       [Colkley] at that point was telling me that the case ... the State had against
       [him] was weak. The only thing, the only place where they had any type of
       strength that came from their case was from the kid [the 17-year-old]. He
       supposed to make a tape for the State. He told the State law enforcement
       about the whole incident and it was recorded. ... [H]e was telling me that they
       had to get rid of [the 17-year-old] because without [the 17-year-old] they
       won't have no case.

204 Md. App. at 635 (emphasis supplied).

       Several hours later, the 17-year-old was shot and killed.           One of Colkley's

confederates, who paid for several contract killings in the course of the larger case, was

introduced to and paid a theretofore unknown "hit man" for the killing of the 17-year-old

potential witness. The trial judge found the following:


                                            - 17 -
       [T]he State has established by clear and convincing evidence that Mr. Colkley
       engaged in, directed or conspired to make, to commit wrongdoing that was
       intended to and in fact did cause [the 17-year-old] to be unavailable.

Id. at 637-38. This Court affirmed that finding and ruling.

       [The] conspiracy unquestionably included the ... necessary coverup of
       preventing detection by police and use by the prosecution, as particularly
       evidenced by Colkley's telephone conversation with Horsey on July 9, 2003,
       that "they had to get rid of [the 17-year-old] because without [the 17-year-
       old], they won't have no case."

Id. at 638 (emphasis supplied).

                    The Appellant's Forfeiture By Wrongdoing

       As Professor Warnken pointed out, 37 U. Balt. L. Rev. at 204, the Maryland

procedure for applying the forfeiture by wrongdoing doctrine is the most defense-oriented

in the nation:

       Maryland is the only jurisdiction that takes a defense-oriented, pro-
       confrontation position on all three major components of a "wrongdoing"
       determination, requiring: (1) a hearing, (2) strict rules of evidence, and (3)
       clear and convincing evidence of wrongdoing.

(Emphasis supplied). Section 10-901, moreover, limits the availability of forfeiture by

wrongdoing to a limited category of crimes – to narcotics offenses under Title 5 of the

Criminal Law Article and to crimes of violence pursuant to Section 14-101 of the Criminal

Law Article.

       This appellant received the full benefit of every one of Maryland's heightened

standards. There was no question about Elmer Duffy's unavailability on October 10, 2012.

He had been murdered on February 20, 2012. In compliance with Courts and Judicial

                                           - 18 -
Proceedings Article, Section 10-901(a), the appellant was on trial for a crime of violence

under Criminal Law Article, Section 14-101(a)(7) "murder," and (a)(15) "an attempt to

commit any of the crimes described in items (1) through (14) of this subsection."

       Before finding a forfeiture by wrongdoing, Maryland, unlike the majority of

American jurisdictions, requires a hearing. The appellant received a full two-day hearing

before Judge Leah J. Seaton on September 27 and October 1, 2012. Maryland, unlike most

American jurisdictions, requires that the hearing judge be persuaded of the wrongdoing by

clear and convincing evidence. In rendering her decision on October 1, 2012, Judge Seaton

expressly made her finding according to that heightened standard of persuasion.

       Under 10-901, the Court finds by clear and convincing evidence that the
       defendant engaged in, directed or conspired to commit the wrongdoing that
       procured the unavailability of Mr. Duffy.

(Emphasis supplied). Section 10-901(b)(1) further directs that the Maryland Rules of

Evidence be strictly applied. We have scanned every line of the two-day hearing before

Judge Seaton and find not a murmur of objection or protest to any evidentiary ruling or

hearing procedure.

             A Burden of Persuasion Is Not a Burden of Production

       Maryland's enhanced level of persuasion is worthy of some comment, for the appellant

apparently reads something into it that is not there. In brief and argument, he solemnly

intones the phrase "by clear and convincing evidence," as if it were a mantra having a critical

bearing on the issue before us. It is not. Burdens of persuasion are simply guidelines to



                                            - 19 -
factfinders as to the level of certainty they should feel before arriving at a conclusion on a

particular issue.3 As a matter of law, a jury should be instructed as to the proper burden of

persuasion. As a matter of law, the factfinding judge must arrive at certain conclusions using

the proper burden of persuasion. Beyond that, however, the burden of persuasion deals only

with matters of fact and its application by the factfinder to a particular set of facts is not a

matter of law.

       When we at the appellate level are assessing legal sufficiency with regard to the

burden of production, we assume maximum credibility and maximum weight, which is

something the hearing judge does not do. He must be persuaded, whereas we need not be.

Once the burden of production has been satisfied, that quantum of evidence that could

persuade one factfinder by a bare preponderance of the evidence could persuade a second

factfinder clearly and convincingly and could persuade yet a third factfinder beyond a

reasonable doubt. The burden of production, which is our only concern on appeal, does not




       3
        The very concept of different levels of persuasion is an elusive one. Perhaps the most
effective communication of what is meant by "burdens of persuasion" was that suggested by
Professor J.P. McBaine in his article, "Burden of Proof: Degrees of Belief," 32 Cal. L.R.
242, 246-47 (1944). He explained that (a) belief by a bare preponderance, (b) a clear and
convincing belief, and (c) belief beyond a reasonable doubt about whether a particular event
has happened are simply respective levels of assurance that the event in question "(a)
probably has happened ... (b) ... highly probably has happened, or (c) ... almost certainly has
happened." (Emphasis in original). It is a psychological measurement, not a legal
measurement. See also In Re Winship, 397 U.S. 358, 369-75, 90 S. Ct. 1068, 25 L. Ed. 368
(1970) (Harlan, J., concurring); Kaplan, "Decision Theory and the Factfinding Process," 20
Stan. L. Rev. 1065, 1071-77 (1968).

                                             - 20 -
rise or fall with the burden of persuasion. Nor does the imposition of a heightened burden

of persuasion imply the imposition of a heightened burden of production.

       This is not to say that the Maryland General Assembly's decision to heighten the

burden of persuasion is not significant. It is very significant. It makes the proving of

forfeiture by wrongdoing more difficult in Maryland than it is in most states and in the

federal courts, which are content to rely on the bare preponderance level of persuasion. All

we are saying is that Maryland's heightening of the burden of persuasion has its impact at the

trial level, where the factfinding judge must apply that heightened standard to himself, but

not at the appellate level, where persuasion is not a concern. The place for the appellant's

rhetorical intoning of the mantra, therefore, was before the hearing judge, not before us. It

is a very important factor in its proper context, but the defense must not take it out of that

context and attempt to turn it into a measure of legal sufficiency at the appellate level.

       In any event, Judge Seaton correctly applied Maryland's enhanced level of persuasion

to herself and her ultimate findings and ruling were in strict compliance with that enhanced

standard.

                           A Critical Mission For a Nephew

       Elmer Duffy gave his recorded statement to the police on December 13, 2011. The

word apparently spread quickly, for on December 14, the appellant, albeit in jail, was aware

that Duffy was telling people that he had seen the appellant as the person involved in the

shooting of Travis Green. The first of two intercepted telephone calls that the appellant


                                            - 21 -
made from the Wicomico County Detention Center was to his mother at 9:46 a.m. Through

his mother, the appellant was passing on the unmistakable message to his nephew, Heathcliff

"Keith" Parker, to get Elmer Duffy "out of the picture."

              MR. SMILEY: ... But let – let Heathcliff – Heathcliff [Smiley's
       nephew] and Kev and them know that the boy who lives across the street from
       Kevin, Elmer Duffy, was a witness. He – he told people he seen me standing
       outside and he seen me running with the gun and all that stuff.

              ....

            Elmer ... Elmer Duffy, the boy that lives across the street from Kevin,
       Mom. The boy that lives across the street from Kev.

              ....

              You see that boy Elmer, get him out of the picture. You know, I don't
       want that stuff. I ain't trying to go out like that, Mom.

              ....

               But yeah, Mom. Tell Kevin, like I said, I'm going to put him on the
       visiting list.

              MOTHER: They'll be over. Put them down.

              MR. SMILEY: I'm going to put them on.

              ....

            MR. SMILEY: Just tell Kim I said – just make sure you tell Kim,
       Mom, that I said make sure they take care of that.

              MOTHER: All right.

              MR. SMILEY: You know what I'm talking about?

              ....

                                          - 22 -
             MR. SMILEY: Make sure he take care of everything, Mom, what I'm
      talking about. You know what I'm talking about –

             MOTHER: All right.

(Emphasis supplied).

      The second telephone call from the appellant that was intercepted that same morning

was to an unidentified female. The same urgent message was to tell Heathcliff not to let

Elmer Duffy "come to court."

              MR. SMILEY: Come on, man. And the guy that lives right across the
      street, this boy named Elmer – you hear me?

             MS. SPEAKER: Uh-huh.

            MR. SMILEY: The guy named Elmer, he's the one that lives across
      from me – lives across from Kev. He said – he the one that saw everything.
      He saw me shoot the boy. He saw me chase the boy down. He saw me pull
      the mask down, saw me pull the mask back up. Oh man. He saw all this,
      doggone, then why didn't he report the crime in the very beginning?

             MS. SPEAKER: Uh-huh.

             ....

           MR. SMILEY: ... I think Heathcliff's number is [redacted] Take that
      number down, too. [Redacted].

             MS. SPEAKER: Okay.

             MR. SMILEY: Okay. And tell him that I said, man, make sure that he
      don't – he don't come to court, man.

             MS. SPEAKER: Okay.

             MR. SMILEY: And make sure they don't – do you know what I mean?


                                         - 23 -
              MS. SPEAKER: Yeah.

              ....

              MR. SMILEY: ... I said, tell everybody I said I love them, and make
       sure – make sure that Kevin and them take care of what I asked them to take
       care of. Tell Kev I said make sure he get on top of that. Make sure that boy
       don't come to court. Make sure he don't – he don't –

              MS. SPEAKER: Yeah.

(Emphasis supplied).

       Under Section 10-901, the proof of wrongdoing in this case requires proof of two

different elements – the effective actus reus of murdering Elmer Duffy and the effective

mens rea of doing so with a particular specific intent, to wit, the intent to prevent Elmer

Duffy from testifying. These two intercepted telephone calls from the appellant supply the

motivation and the specific intent to get rid of Elmer Duffy as a witness par excellence. In

terms of intent, no more could be asked for.

                          The Unavailability of Elmer Duffy

       At his own trial, Heathcliff Parker may be cloaked in a mantle of innocence, but he

is not so grandly garbed on a threshold issue at someone else's trial. On the question of the

State's Section 10-901 motion, the evidence showed 1) that the appellant ardently and

insistently sent word to his nephew to get rid of Elmer Duffy, 2) that Elmer Duffy was

subsequently murdered, 3) that the appellant jubilantly reacted to the news of the murder,

and 4) that nephew Heathcliff Parker was, indeed, then charged with that murder. On that



                                           - 24 -
evidence, Judge Seaton found that the appellant was involved in procuring the unavailability

of Elmer Duffy as a witness. We cannot say that she was clearly erroneous.

       At the hearing on the motion, defense counsel made a passing allusion to the

worthlessness of an arrest or an indictment as evidence of guilt. The predominant theme of

counsel's argument, however, was that the State had failed to show that Heathcliff Parker

had actually been charged with Elmer Duffy's murder. The refrain was repetitive that no

indictment had been introduced. The full record, however, was not so bereft. In announcing

her ruling, Judge Seaton ruled:

       The Court takes judicial notice of the case file in this court, Case Number
       K12-0587 in which the murder charges are pending against Mr. Parker.

       In the State's Notice of Intent to Introduce the Recorded Statement of Elmer Duffy,

filed on August 9, 2012, the State had alleged, inter alia, that:

       Keith Parker, the nephew of the above captioned defendant, has been charged
       with the murder of Elmer Duffy.

       In his Memorandum in Support of Opposition to State's Notice of Intent to Introduce

the Recorded Statement of Elmer Duffy, filed on September 21, 2012, the appellant,

moreover, listed, among the Facts of the case:

       On February 20, 2012, Duffy was killed.

              Keith Parker ("Parker"), nephew of the Defendant, was charged with
       murder and conspiracy to commit the murder of Mr. Duffy on July 23, 2012.
       The conspiracy charge alleges that Parker conspired with the Defendant to
       commit the murder of Duffy, but the Defendant has not yet been charged in
       Duffy's murder.


                                            - 25 -
(Emphasis supplied).

               An Indictment Is Not Without Evidentiary Significance

          A defendant may enjoy the presumption of innocence at his own trial, but that

presumption does not attend him in all other contexts. A voter may vote against an otherwise

qualified candidate just because the candidate has been indicted for election fraud or for any

other crime. A parent may discontinue hiring a babysitter who has only been indicted for

child abuse. A bank may choose not to hire an otherwise qualified applicant just because he

has been indicted for embezzlement. These perfectly rational decisions do not offend the

presumption of innocence. Indictments have significance and they are given significance,

except at the criminal trial of the person indicted.

          An indictment, moreover, may pack more persuasive punch than an arrest by a

policeman. Quantitatively, to be sure, probable cause remains probable cause remains

probable cause, but successive findings of probable cause by an escalating set of probable

cause assessors is not without a particular type of significance. Inevitably, adding to the mix

the confirmation by the hearing judge, Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L.

Ed. 2d 54 (1975), and then the reconfirmation by the Grand Jury enhances persuasion even

if it does nothing to enhance production. Aside from several very general guidelines,

persuasion is not a subject that can be reduced to rules and measurements. The things that

may persuade a factfinder are very personal and idiosyncratic. The appellant discounts this

truism.



                                            - 26 -
       The rigors that the appellant would attach to the evidentiary hearing are unrealistic.

Proof of an excited utterance, for instance, does not demand a psychiatrist to establish

distraught emotion clearly and convincingly nor does a dying declaration insist on a priest

administering last rites to establish the expectation of imminent death on the part of the

declarant beyond a reasonable doubt. An evidentiary hearing is not a trial on guilt or

innocence. Those evidentiary qualifiers for hearsay exceptions are peripheral issues and not

an ultimate verdict. There is another obvious impediment to what the appellant proposes.

It would be absurd to hold that the appellant's pretrial hearing on the hearsay issue in this

case could not move forward until Parker's trial for murder had been concluded. It would be

equally absurd to hold that Parker's guilt of murder would have to be proved at the appellant's

evidentiary hearing as a veritable trial within a trial or, in this case, a veritable trial within a

pretrial hearing. Parker's indictment for murder was admissible evidence at the evidentiary

hearing to help show the appellant's involvement in procuring the witness's unavailability.

       We repeat that we are venturing no opinion on what might or might not be admissible

at the actual trial of Parker for the murder of Elmer Duffy. That would be a different context

entirely. Our concern is only with the significance of that piece of evidence at a hearing

before the judge alone with no question about the counterweight of possible prejudice to a

jury. Where the evidentiary issue was whether the appellant played some role in the death

of Elmer Duffy and where the appellant had sent clear direction, through two different




                                               - 27 -
intermediaries, to his nephew to get rid of Elmer Duffy, the subsequent indictment of that

nephew for the murder of Elmer Duffy was not without relevance.4

                                 Judge Seaton's Ruling

       At the conclusion of the hearing, Judge Seaton considered all of the facts before her

and made the following ruling:

               The State's Notice of Intent to submit the recorded statement of Elmer
       Duffy was opposed by the defendant. Section 10-901 of Courts and Judicial
       Proceedings governs the admissibility of the recorded statement. The Court
       has considered the State's notice, the defendant's opposition and supplemental
       filing and oral arguments, admitted exhibits, the testimony of Mr. McFarland,
       and the recorded statement and transcript of that conversation which
       accurately reflected the conversation.

              Under 10-901, the Court finds by clear and convincing evidence that
       the defendant engaged in, directed or conspired to commit the wrongdoing
       that procured the unavailability of Mr. Duffy. Mr. Duffy was murdered.
       Keith Parker has been charged with that murder.

             The Court finds ... Mr. McFarland's testimony about the defendant's
       statements and his reaction to the news of Mr. Duffy's murder to be credible.

              In addition, the Court notes that in the conversation with his mother,
       the defendant wanted to, quote, "get Mr. Duffy out of the picture," end quote.
       He also tells – well, the quote part is "out of the picture." He also tells his


       4
          Although the information was not before Judge Seaton, of course, at the time of the
hearing on September 27 and October 1, 2012, we note that on January 25, 2013, the
nephew, Keith Parker, entered an Alford plea of guilty, pursuant to North Carolina v.
Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to the murder in the second
degree of Elmer Duffy. The trial judge heard the State's recital of the evidence and ruled
that it adequately supported the plea. Although, pursuant to Alford, Parker did not expressly
acknowledge murdering Elmer Duffy, he accepted a prison term of 25 years on the strength
of the State's case that he had murdered Elmer Duffy. We have to wonder why the appellant
would even want a remand on this issue or what purpose it could possibly serve.

                                           - 28 -
       mother at the end of the conversation, quote, "make sure they take care of
       everything, Mom. I'm talking about, you know what I'm talking about."
       Period end quote.

               The Court takes judicial notice of the case file in this court, Case
       Number K12-0587, in which the murder charges are pending against Mr.
       Parker. It is not persuaded by counsel's argument that the State has not proven
       the wrongdoing, nor that the State has failed by clear and convincing evidence
       to establish that the defendant engaged in, directed or conspired to commit the
       wrongdoing that procured the unavailability of Mr. Duffy.

              The Court has also considered the defense's argument that Section 10-
       901 violates the Federal Constitution and the Maryland Declaration of Rights.
       After reviewing the case law and the statute, the Court is not persuaded by
       these arguments.

              The State's notice of intent to introduce Mr. Duffy's statement is
       granted. The defendant's opposition is denied.

(Emphasis supplied). We see no error in that ruling.

                          The Fringe Issue of Identification

       The appellant's two remaining contentions both concern identification law. They

seem, however, to be largely an academic exercise because identification ironically does not

figure as a significant issue in this case. The appellant himself testified that he was present

at both the scene of the crime and the time of the crime. He testified that he knew Elmer

Duffy and conversed with him at the scene. He testified that he was attempting to buy drugs

from Travis Green and that he ran up to him and called him by name at the scene. The

appellant, to be sure, parts company with Travis Green and Elmer Duffy in that his narrative

includes a mysterious masked gunman who suddenly appeared on center stage, like a deus

ex machina, and started firing shots at Travis Green. Despite that dramatic glitch in the plot

                                            - 29 -
line, the appellant's story does not resemble that of the typical innocent who is miles away

and yet finds himself the unexpected victim of a tragic misidentification. The lofty

identification issues raised by the appellant, therefore, might have been pertinent in some

other trial that might have been but seem oddly out of place in the trial that actually was.

                                The Photographic Array

       The appellant contends that, at a pretrial suppression hearing on June 8, 2010, Judge

W. Newton Jackson, III, erroneously failed to suppress an extrajudicial identification of him

by the shooting victim, Travis Green. It is a curious contention in several respects.

       In his trial testimony on October 10, 2012, Travis Green unhesitatingly identified the

appellant as the man who shot him on December 10, 2011.

              Q. When you say "this guy," who are you talking about?

             A. You all say his name is Marcus Smiley.              I don't know him
       personally.

              Q. Where is he seated?

              A. He's seated over there. (Pointing)

             [PROSECUTOR]: Let the record reflect that the witness has identified
       the Defendant.

       There was no objection to this in-trial identification. Indeed, at no time in his pretrial

motion or at the hearing did the appellant ever move to have the subsequent in-trial

identification suppressed as the "fruit of the poisonous tree" of the allegedly impermissibly

suggestive photographic identification. The appellate contention now before us, neither in


                                             - 30 -
its title nor in a single line of its argument, even alludes to the in-trial identification. A

causative link-up between an extrajudicial identification and a subsequent judicial

identification could, to be sure, be alleged and shown, but it is by no means automatic. This

appellant simply has not challenged his in-court identification by Travis Green.

       This lack of a challenge would make harmless error (were it necessary to fall back

on Plan B; it is not) virtually a foregone conclusion. The reference to the extrajudicial

photographic identification was very brief and low-keyed. Its significance was pale beside

that of an in-court identification. The statement of Elmer Duffy, moreover (which we have

held to have been admissible), clinched the identification of the appellant. Elmer Duffy had

known the appellant and his family for years and they conversed with each other, by name,

immediately prior to the shooting. If that were not enough, the appellant himself in his

sworn testimony placed himself at the scene of the shooting and corroborated 90% of the

narratives of both Elmer Duffy and Travis Green. Were the issue of harmless error before

us, we would have no glimmer of a doubt that Green's extrajudicial identification did not

influence the jury's verdict in any way.

                           It Is Not Ours To Second-Guess

       The contention is curious in a second respect – at least as it is urged upon us. In

arguing that a photographic array was impermissibly suggestive, the appellant presents us

with a copy of the photographic array, virtually as a res ipsa loquitur exhibit. It is a

legitimate tactic – but one with sensitive undertones. When holding before one's eyes the


                                            - 31 -
exhibit that is the centerpiece of the entire hearing, there is the instinctive temptation to

make an independent judgment as to whether the array is or is not suggestive, ignoring the

fact that it was another judge's job to make that judgment. There is a thin line between

having one's own opinion and second-guessing, and it calls for Spartan appellate self-

discipline to avoid the latter.

              Suppression Has Become Virtually An Anachronism

       Suggestiveness, however, is but a part of a significantly larger equation. Suppression,

moreover, is no longer the remedy of choice. The constitutional heyday of identification law

lasted for precisely a decade and, early on, suppression was a large part of it. In Turner v.

State, 184 Md. App. 175, 178, 964 A.2d 695 (2009), this Court briefly summarized that

constitutional season in the sun.

              Beginning with the promulgation of the Wade-Gilbert-Stovall trilogy
       on June 12, 1967, the constitutionality of extrajudicial identifications shot into
       prominence and then dominated the center stage until its run ended ten years
       and four days later with the promulgation of Manson v. Brathwaite, 432 U.S.
       98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Early in the run, following the
       lead of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d
       1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L.
       Ed. 2d 1178 (1967), and relying on an accused's Sixth Amendment right to
       counsel at any critical stage, the exclusion of identification evidence as a
       matter of constitutional law was in high vogue.

(Emphasis supplied).

       We pointed out how the exclusionary trend ebbed significantly as attention soon

turned from the Sixth Amendment right to counsel to Fourteenth Amendment due process.



                                             - 32 -
               Whatever vitality the Wade-Gilbert-Stovall trilogy still retained after
       1973 was by virtue of its third member, Stovall v. Denno, 388 U.S. 293, 87
       S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Unlike Wade and Gilbert, Stovall was
       grounded in the due process clause of the Fourteenth Amendment rather than
       in the right to counsel of the Sixth Amendment. In one sense, a due process
       claim under Stovall enjoyed much broader coverage than a right to counsel
       claim under Wade and Gilbert because a due process claim is not limited to
       post-indictment procedures and does not require that the procedure be
       considered a critical stage. On the other hand, whereas a Sixth Amendment
       violation results in virtually automatic exclusion of the identification, a due
       process violation only occasionally does so. Instead of exclusion, an arguable
       due process violation generally calls for a balancing of competing factors
       under a "totality of circumstances" approach, and this is, far more often than
       not, a weighing function for a jury rather than an exclusionary function for a
       judge.

184 Md. App. at 179 (emphasis supplied).

       By the end of the 1967-1977 decade, the focus was almost exclusively on Fourteenth

Amendment reliability under the three-pronged reliability test of Simmons v. United States,

390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). We described that final development

in Conyers v. State, 115 Md. App. 114, 117-18, 691 A.2d 802 (1997):

               The due process criterion was more fully fleshed out in Simmons v.
       United States (1968) and reached full flower in Neil v. Biggers (1972), and
       Manson v. Brathwaite (1977). The final definition for an excludable pretrial
       identification became "one that was so [1] impermissibly [2] suggestive [3]
       as to give rise to a very substantial likelihood of irreparable misidentification."
       The third requirement massively curtailed the applicability of the first two and
       effectively returned identification law to where it had been before the
       Wade-Gilbert-Stovall trilogy enjoyed its brief moment in the sun.

              With Manson v. Brathwaite in 1977, the constitutional phase of
       identification law had largely run its course. The Supreme Court pointed out
       that



                                             - 33 -
              inflexible rules of exclusion, that may frustrate rather than
              promote justice, have not been viewed recently by this Court
              with unlimited enthusiasm.

       432 U.S. at 113, 97 S. Ct. at 2252. Except in extreme cases, the Supreme
       Court was content to let the trustworthiness of an identification be left to a
       commonsense weighing process by lay jurors[.]

(Emphasis supplied).

       The Supreme Court in Perry v. New Hampshire, 565 U.S. ___, 132 S. Ct. 716, 181

L. Ed. 2d 694 (2012), virtually pronounced an obituary over the use of exclusion in

challenged identification cases.

       When a witness identifies the defendant in a police-organized photo lineup,
       the Court ruled, the identification should be suppressed only where "the
       photographic identification procedure was so [unnecessarily] suggestive as to
       give rise to a very substantial likelihood of irreparable misidentification." ....

               Synthesizing previous decisions, we set forth in Neil v. Biggers, and
       reiterated in Manson v. Brathwaite, the approach appropriately used to
       determine whether the Due Process Clause requires suppression of an
       eyewitness identification tainted by police arrangement. The Court
       emphasized, first, that due process concerns arise only when law enforcement
       officers use an identification procedure that is both suggestive and
       unnecessary. Even when the police use such a procedure, the Court next said,
       suppression of the resulting identification is not the inevitable consequence.

              A rule requiring automatic exclusion, the Court reasoned, would "g[o]
       too far," for it would "kee[p] evidence from the jury that is reliable and
       relevant," and "may result, on occasion, in the guilty going free." Brathwaite
       (when an "identification is reliable despite an unnecessarily suggestive
       [police] identification procedure," automatic exclusion "is a Draconian
       sanction," one "that may frustrate rather than promote justice").

132 S. Ct. at 724 (emphasis supplied).



                                             - 34 -
              A Three-Pronged Test For Identification Excludability

        Simmons v. United States sets out a three-pronged definition for an excludable

extrajudicial identification. In the due process challenge to the police use of a photographic

array in that case, the Supreme Court held that an identification should be suppressed only

where

        the photographic identification procedure was so impermissibly suggestive as
        to give rise to a very substantial likelihood of irreparable misidentification.

390 U.S. at 384. See Perry v. New Hampshire, 132 S. Ct. at 724.

        The first requirement is that the photographic array or other extrajudicial

identification procedure be suggestive. It is further required that even if the procedure were

suggestive, it must be impermissibly (or unnecessarily) suggestive. Stovall v. Denno, 388

U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). The third requirement, at least where

the defendant seeks to exclude a subsequent in-court identification as the "fruit of the

poisonous tree," is that even an impermissibly suggestive identification procedure must have

been so impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable misidentification. Not a mere "likelihood" but a "very substantial likelihood"!

Not a mere "misidentification" but an "irreparable misidentification"! That's a hard furrow

to plow. These are three integral parts of a single definition. It is not the case that a

defendant need establish only the first and second elements and then sit back and enjoy a

presumption as to the third element, which the State must then try to rebut. The proponent

of exclusion carries the burden of justifying exclusion.

                                            - 35 -
              Suggestiveness May Be In The Eye Of The Beholder

       With three hurdles to surmount, the appellant never got over the first hurdle.

Corporal Durbin Hamilton of the Wicomico County Sheriff's Office put together the

photographic array. When asked how she compiled it, she explained:

       We have a computer system at our office, it's consisted of about 10,000 photos
       that we've obtained through Salisbury City Police Department, Fruitland
       Police Department, the jail, photos that we've taken ourselves, and then we
       have a program that puts it into a photo lineup. And we then basically cut and
       paste the pictures into that photo lineup.

Selecting five pictures from her computer system, she cut and pasted those five along with

a picture of the appellant on to a single sheet of paper. Those six photographs constituted

the array. The original was in color. She also made a black and white copy.

       It was Special Agent Matt Beccio of the Federal Bureau of Alcohol, Tobacco,

Firearms and Explosives who showed the black and white copy of the array to Travis Green

at the Maryland Shock Trauma facility in Baltimore on December 12, 2011, two days after

the shooting. The photographic array had been sent to him electronically from the

Wicomico Bureau of Investigation. He used the black and white copy instead of the color

copy because, "I only had access to a black and white printer that day so I printed it out black

and white."

       Of the six photographs in the array, the appellant's was in the Number 5 position.

On the first four photographs in the array, the heads of the subjects appear somewhat

narrowed or elongated as if there had been some sort of glitch in transmission, either from


                                             - 36 -
the computer file to Corporal Hamilton in the first instance or from Wicomico County to

Baltimore in the second instance. Judge Jackson commented in this regard:

       But for the sake of argument I will agree that one, two, three and four seem
       to be slightly elongated, maybe that's a result of transmission through
       telephone wires or computer or cyberspace, I don't know what causes it.

       Agent Beccio described his technique in asking Travis Green to make an

identification.

               THE WITNESS: I unsealed the envelope. I took the photo lineup out
       of the envelope, laid it face down on his side, the side that he was not injured
       that he could use his left arm, laid it face down and asked him to turn it over
       when he was ready.

       BY MS. DISHAROON:

              Q. And did he turn it over?

              A. He did.

              Q. Did he pick anybody out of the photo array?

               A. Once he turned it over I handed him a pen in his right hand, which
       is the hand I mentioned before had the cast on it that was injured in the
       shooting incident, and within I would say maybe 30 or so seconds,
       approximately 30 or so seconds he pointed to what was the picture number
       five in this array and said this is the guy and began to try to circle it with the
       pen that he had had in his hand, his right hand.

              Q. Did he attempt to sign it as well?

             A. Yes, he attempted to actually initial on the right side there but
       because of his injuries he could not really write properly.

              Q. But he pointed out photo number five.

              A. He did.

                                             - 37 -
              ....

              Q. Did you ever tell Travis Green who to pick from the photo array?

              A. Absolutely not.

              Q. Did you promise him anything to get him to pick any particular
       individual?

              A. Absolutely not.

              Q. Did you make any threats to him or implied threats to him to get
       him to pick any particular individual?

              A. Absolutely not.

The conduct of the identification procedure appears to have been impeccable.

       The apparent electronic glitch in the reproducing of four of the photographs is the

appellant's entire basis for urging exclusion. All six photographs are of faces that are

recognizable. The culprit to be selected from the array could as readily have been one of the

four whose heads appear elongated as one of the two whose heads do not so appear.

       An argument, to be sure, could be made in favor of suggestiveness, but a

counterargument could just as surely be made, as Judge Jackson did:

               But this can be said about all of the photographs. They depict six
       African-American males, all roughly of the same age, all with close-cropped
       hair, no corn rows, no dreadlocks, no Afros, all close-cropped hair. Five of
       the six have receding hairlines. All six have facial hair of the same style. And
       I don't know what the style is called, it's very prevalent nowadays, practically
       every baseball player you see on television has the same thing. I'm sure there's
       a word for it. Not full beards, not goatees, not single soul patches, but the
       same type of facial hair. They all have the same expression on their faces, too,
       people who aren't happy having their picture taken, they look rather glum.
       Nobody is smiling. In other words picture number five, who apparently is the

                                            - 38 -
       individual identified, does not wear a different facial expression than the other
       five photographs.

       Judge Jackson concluded that the photographic array, albeit not perfect, was not

fatally suggestive.

               I'm satisfied based upon what I heard from both of those witnesses as
       well as the two ATF officers that there was no deception involved, no
       coercion, no promises made to either of the two people to pick out photograph
       number five. More could have been said, but I don't know if that would have
       made a bit of difference. As both counsel know, the test is whether – it's a
       two stage test. First the Defendant must demonstrate that the identification is
       impermissibly suggestive, and second, if the Defendant does that then the
       State has the burden of proving by clear and convincing evidence existence
       of reliability which outweighs suggestiveness.

               Dr. Brigham concluded that this was essentially a two person or a two
       photograph array. I'm not necessarily agreeing with him in that respect. I
       think it's a perfectly – it's not a perfect photographic array, but it's an adequate
       photographic array for purposes of making an identification without
       impermissibly suggesting to the viewer which picture to pick out.

               But I would also refer you, [Defense Counsel], to [In re Matthew S.,
       199 Md. App. 436, 23 A.3d 250 (2011),] where the Court of Special Appeals
       upheld identification by a single photograph, that was a yearbook photograph.
       So it doesn't have to be contained with the other photographs. Yes, it's better
       that there are other photographs, it might have been better had there been 24
       pictures instead of six. But even if you call it a two photograph array, it still
       is not impermissibly suggestive. So that's going to be the finding of the Court
       with respect to State's Exhibits 2 and 3.

(Emphasis supplied).

       Even if impermissibility is inextricably intertwined with suggestiveness, there is no

need even to go on to the third factor of the ultimate reliability of the identification. On the

issue of impermissible suggestiveness, plausible arguments were made in both directions.


                                              - 39 -
On appellate review, our posture is deferential. We look at the evidence in the light most

favorable to the prevailing party (in this case, the State). Employing that deference, we

cannot say that Judge Jackson's findings were clearly erroneous or that his ruling was an

abuse of discretion.

            Expert Opinion On Eyewitness Memory and Identification

        The final contention will not detain us long. The defense sought to call a Dr.

Brigham as an expert witness who would have given the jury an overview of present

scientific knowledge concerning eyewitness memory; about how facial memories are

acquired and encoded, retained, and then retrieved; and about such high stress factors as

weapon focus and unconscious transference. He was ready to opine about how Agent

Beccio's identification procedure with Travis Green would have been more reliable if the

"double blind" process had been used, in which the officer administering the identification

procedure does not know which photograph is that of the suspect.

        Judge Simpson ruled that Dr. Brigham's opinions would not have been helpful to the

jury:

        Several issues were identified, that the victim ran from the assailant as he was
        shot, which was an event of high stress, and during which he would have or
        may have had weapon focus, that he saw the assailant for a brief duration and
        there could have been unconscious transference, the nature of the lineup and
        the photographs, and that it would have been preferable to use a double blind
        lineup. So those were really the three issues.

        Under the standard in Bomas[ v. State, 412 Md. 392, 987 A.2d 98 (2010)],
        these issues are issues that are intuitive. All of these issues can be brought out


                                              - 40 -
      under cross-examination of the witnesses, the fact witnesses and are subject
      to the argument to the jury.

      The Court finds that the expert testimony will not be of real appreciable help
      to the trier of fact. Accordingly, the Court finds that the testimony of Dr.
      Brigham is inadmissible.

We agree.

                                                   JUDGMENTS AFFIRMED; COSTS
                                                   TO BE PAID BY APPELLANT.




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