MARCUS LEE SMILEY v. STATE OF MARYLAND
Court of Special Appeals, Moylan, Filed Jan. 29, 2014,
Hearsay- Unavailability of witness by wrongdoing- Defendant’s jail calls to “get [witness] out of the picture” and “make sure that he don’t – he don’t come to court” where witness was shot and killed soon after were sufficient to demonstrate unavailability by wrongdoing.

Notes from the case on Unavailability by Wrongdoing:
– Requires (1) a hearing, (2) strict rules of evidence, and (3) clear and convincing evidence of wrongdoing (“the most defense-oriented in the nation”)
– Must show specific intent that wrongdoing was for the purpose of preventing witness’ appearance at trial
– Limited in MD to felony drugs and crimes of violence
– Exception to (or waiver of) confrontation clause

Other notes from the case:
– Photo lineup- Exclusion not the preferred remedy
– Photo lineup- 3-part test to exclude photo array was set forth by the USSC in Perry: 1) Suggestive, 2) Unnecessarily, 3) Very substantial likelihood of irreparable misidentification. (“That’s a hard furrow to plow.”)
– Not improper to allow photo array where 4 of 6 photographs had been elongated due to technical error
– Not abuse of discretion to exclude as unhelpful expert witness in eyewitness memory