MALIK SMALL v. STATE OF MARYLAND
Court of Special Appeals, Leahy, March 1, 2018,
Photo Array – Suggestiveness – An identification was improperly suggestive when the victim was shown two two photo arrays hours apart where the suspect was the only one to appear in both arrays and the first array was improperly suggestive
Facts:
In 2015, Ellis Lee was robbed at gunpoint while standing at a bus stop on Northern Parkway in Baltimore City. Lee ran from the robber and was shot once in the right calf as he was fleeing.
Lee described the robber as a black male, 5’8”, regular sized, short haircut, light skin, light t-shirt, blue jeans, block letter tattoo on the right side of his neck with a letter ‘M’ in it.
The robber held the bottom of his shirt up over his face, but Lee believed he had seen him before twice at his job at Staples and recognized his voice. Lee could not remember when he had seen him, however.
After leaving the hospital, Lee was taken to the crime scene to show detectives what happened. He was then transported to the station where he viewed two photo arrays:
In the first array, all of the photographs were a straight-on head shot. All featured African-American males of a similar age with a beard and short, cropped hair. Malik Small was the only person with a visible neck tattoo. The tattoo in the picture showed a cursive ‘M.’ Lee indicated that Small may be the person that shot him, but he wasn’t sure. Lee later testified that “I picked out one who kind of looked like him, but I wasn’t too sure. I was, like, okay, I see the tattoo. I remember there being a LYM tattoo.” Lee testified that he told the detective administering the array that he was 80% sure this was the person because the robber had a shirt over his face. However, the detective administering the array noted that Lee thought it “looks like him, doesn’t think it’s him.”
Three hours later, Lee was shown a second array that also had Small in it. In this array, both a front and side photograph was presented for each person. All photographs showed an African-American male with a tattoo on the right side of his neck. However, Small’s was the only one with a cursive ‘M’ and “his skin tone appears markedly lighter than that of the other men featured in the second photo array.”
Lee selected Smalls as the robber, saying, “That’s him. That’s who shot me.” Lee wrote, “this is the same tattoo and face I remember robbing me and the man I remember shooting me. I also remember him from coming into my job on two different occasions.” Lee later testified that after seeing the second photo array he was “100 percent that this was the person” who had shot him.
Small was charged with the robbery and shooting.
Weeks later, Lee called the primary detective to tell him that he thought he saw the robber riding a dirt bike. However, the detective assured him that the robber was locked up. Just before trial, Lee told the State’s Attorney’s investigator that he had “some doubts” about whether he picked out the right person and was now only 70% sure.
Prior to trial, Small moved to suppress the photo array. He argued that the array was improperly suggestive.
The trial court found that the array was suggestive, but the identification was nonetheless still reliable.
Small was convicted of the attempted robbery, but not the shooting.
Small then appealed, arguing that the photo array was improper because:
1) Small’s photo in the first array was the only photo with a visible tattoo;
2) Small’s photo from the first array was the only one to appear in the second photo array;
3) Small was the only individual with a “light complexion” in the second array; and
4) The letter “M” was visible on the tattoo on Small’s neck in the first photo array, and Small was only one of two individuals with tattoos on their necks that contained letters in the second photo array.
Held: The Court of Special Appeals found that the photo array was improperly suggestive. However, Lee’s recognition of the tattoo and voice made the identification reliable. Therefore the identification was not suppressed.
Identification – Due process protects a defendant against the introduction of evidence tainted by unreliable pretrial identifications obtained through unnecessarily suggestive procedures
Identification – A pre-trial identification must be excluded when it is both suggestive and unnecessary
Identification – If a pre-trial identification is unnecessarily suggestive, then the court must determine whether the identification is still reliable
Identification – The burden is on the defendant to show that the identification was unnecessarily suggestive. If he does so, the State must show that the identification is nevertheless still reliable.
Identification – If a pre-trial identification is unreliable, then the witness who made the pre-trial identification is not allowed to identify the defendant at trial unless the State can show an independent source for the identification
ID – Suggestiveness – A pre-trial identification is “suggestive” if the way the identification is done indicates who the witness should identify
ID – Suggestiveness – If a pre-trial identification in effect tells the witness “this is the man,” then the ID is suggestive.
For Example: The Court used an ID case from the Supreme Court to explain improper suggestion in an ID. In that case, police conducted an in-person lineup of 3 people where the suspect was significantly taller than the other two and wearing a leather jacket similar to the one described by the witness. The witness spoke with the suspect one-on-one, but still wasn’t sure. A week later, another in-person lineup was conducted where the only person repeated was the suspect. This time, the witness was convinced that the suspect committed the crime. The Supreme Court held that “The suggestive elements in this identification procedure made it all but inevitable that the witness would identify the defendant whether or not he was in fact ‘the man.’ In effect, the police repeatedly said to the witness, ‘This is the man.’”
Photo Array – Suggestiveness – The people in a photo array need to look similar for the photo array to be fair, but the array “need not be composed of clones.” A suspect’s unique or unusual feature as described by a witness may be included in the array.
Photo Array – Suggestiveness – Repeating Photos – Repeated inclusion of a suspect in more than one photo array shown to the same witness is suggestive if the repetition signals to the witness who he or she should select
Note: If a repeat array is needed that will include one or more of the same people, be sure to avoid: using the same or similar picture in both arrays, showing the arrays the same day, or drawing attention to the fact that the same person appears more than once.
From the Case: “We conclude that the identification procedure employed by the police was impermissibly suggestive. The first photo array the police showed Mr. Lee included six potential suspects. Small was the sole individual with a neck tattoo, and his tattoo was featured prominently in the photo.” Because this drew attention to Small, repeating his picture in a second lineup hours later was improperly suggestive.
Photo Array – Distinctive Features- Filler photographs in a photo array should include photos of person who “resemble” the description of the suspect, including “any unique or unusual features.”
From the Case: “This case illustrates the dangers of highlighting one person in a photo array who has a feature that other people can share (i.e., having a tattoo), without including any other person in the array with a similar feature.”
Photo Array – Distinctive Features – When a distinctive feature, such as a tattoo, is at the center of a witness’s description, law enforcement officers shall include pictures of people with tattoos in generally the same area as the suspected perpetrator to avoid creating a suggestive array.
From the Case: However, officers should be careful about “artificially rendering the identical tattoo on each person in a photo array” as this “will more than likely create a dangerous likelihood of an unreliable identification of an innocent person.”
Practice Note: Where possible, moderately similar features should be used. If the tattoo involves letters, then try to find filler photos with letter tattoos. If the tattoo involves a design, try to find filler photos with a symbol or design tattoo. The tattoos don’t need to be identical, just fairly similar. If appropriate filler photos can’t be found, different marks or designs can be added to filler photographs as long as it is not obvious or identical to the suspect’s design/mark. Or all of the features can be covered up so that none of them stand out.
Photo Arrays – Maryland Law on Eyewitness Identification – PS 3-506.1 sets out an optional standard for those departments who do not adopt the “Police Training Commission’s Eyewitness Identification Model Policy”. It requires that fillers in an array “shall resemble the description of the perpetrator given by the eyewitness in significant physical features, including any unique or unusual features”
Practice Note: BPD Policy 1009 includes the same language and, having been put into place pursuant to Maryland Law requiring compliance with DOJ standards, may be interpreted similarly
Photo Arrays – Maryland Law – The requirement that filler photos “resemble” the description of the suspect does not require officers to “touch up photographs so that every person has virtually the same tattoo.” It only means that if the suspect is supposed to have a tattoo and is shown with a tattoo in the array, then the filler photos also need to have tattoos.
Identification – Reliability – Even if a pre-trial identification procedure is improperly suggestive, the identification may still be reliable.
Identification – Reliability- The reliability of an identification depends on the facts of the case. Certain factors may be considered in determining whether an ID is reliable, such as:
– the opportunity of the witness to view the criminal at the time of the crime
– the witness’ degree of attention
– the accuracy of the witness’ prior description of the criminal
– the level of certainty demonstrated by the witness at the identification
– the length of time between the crime and the identification
– prior familiarity between the suspect and witness
– description of unique or distinctive marks/features of the suspect
From the Case: Despite the improper photo ID, Lee’s identification was found to be reliable because: Lee saw the suspect for almost two minutes and got a good look at the tattoo; He was paying complete attention to the suspect and the gun at the time of the robbery; he quickly gave detectives a clear description of the suspect; and Lee identified the suspect from the second photo array soon after the crime (less than 10 hours later). Additionally, Lee testified that he had previously interacted with the suspect.
ID – Reliability – Distinctive Marks – Description of a unique mark or feature prior to pre-trial identification of a suspect may significantly increase the reliability of that identification, even if the identification is improperly suggestive
From the Case: “After reviewing the totality of the circumstances presented in the record … and noting Mr. Lee’s prior familiarity with Small, as well as the detailed description he provided of Small’s unique tattoo prior to the photo array, we hold that Mr. Lee’s identification of Appellant was sufficiently reliable to overcome the suggestive nature of the identification procedure. Accordingly, we affirm the suppression court’s decision to deny the motion to suppress the second photographic array.”