Smiley v. State

Marcus Lee Smiley v. State of Maryland, No. 37, Sept. Term 2014, Opinion by Battaglia,
J.

CRIMINAL PROCEDURE – EYEWITNESS IDENTIFICATION –
IMPERMISSIBLY SUGGESTIVE PROCEDURE

An extrajudicial identification is not impermissibly suggestive when the photographs of
four of the six individuals in the photographic array were slightly elongated in the face and
torso.

CRIMINAL PROCEDURE – EYEWITNESS IDENTIFICATION

The Court declined to adopt the approach promulgated by the New Jersey Supreme Court
in State v. Henderson, 27 A.3d 872 (N.J. 2011), for assessing the admissibility of an
extrajudicial eyewitness identification, because Jones v. State, 310 Md. 569, 530 A.2d 743
(1987), delineates the standard in Maryland to be applied in evaluating eyewitness
identification.

EVIDENCE – HEARSAY EXCEPTIONS – FORFEITURE BY WRONGDOING –
EVIDENCE OF PARTY’S INVOLVEMENT

The trial court did not err in finding, by clear and convincing evidence, that the defendant
had “engaged in, directed, or conspired to” procure the witness’s absence, pursuant to
Section 10-901 of the Courts and Judicial Proceedings Article of the Maryland Code and
Maryland Rule 5-804(b)(5)(B).

1
Circuit Court for Wicomico County,
Maryland
Case No. K12-0028
Argued: January 12, 2015
IN THE COURT OF APPEALS
OF MARYLAND

No. 37
September Term, 2014

MARCUS LEE SMILEY
v.
STATE OF MARYLAND

Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.

Opinion by Battaglia, J.

Filed: March 9, 2015

2
 During the early hours of December 10, 2011, while smoking a cigarette in his

girlfriend’s backyard, in Salisbury, Maryland, Travis Green noticed Marcus Smiley,

Petitioner, between five and seven feet away, “looking crazy and everything”, sitting atop

the steps of the adjacent house. Within moments, when Green was about to leave, Smiley

asked him, “did [you] see where he went?”, to which Green did not reply. When Green

was about to enter his truck, Smiley fired the first shot at him, at close range.

After Green attempted to escape by sliding across the front seat of the truck and

fleeing, Smiley gave chase while shooting at Green, striking him in his right arm, abdomen

and thigh. Though out of ammunition, “[Smiley] kept clicking the gun, you know, it wasn’t

no more bullets left in it”, according to Green, who asked, “what are you still trying to

shoot me for, what is this about, money?” Smiley, though, did not answer and “just took

off after” the incident.

Green was flown to Shock Trauma for treatment, where two days later Special

Agent Matthew Beccio of the Federal Bureau of Alcohol, Tobacco, Firearms and

Explosives presented him with a photographic array created by the Wicomico County

Bureau of Investigation. The photo array contained six photographs, including that of

Smiley, created from digital images cached in an electronic database of those who “had the

same physical appearance, facial appearance as [Smiley]”. The six photographs had been

arranged in two rows of three, with Smiley’s photograph located in position five. Green

selected Smiley’s photograph in “approximately 30 or so seconds”.

At the subsequent hearing, in the Wicomico County Circuit Court, during which the

array was scrutinized by Judge Newton Jackson, III, Judge Jackson noted that four of the

1
photographs in the array were “slightly elongated with respect to the head, neck and what

little bit of the torso of each individual can be seen”, but still resembled people “who have

that kind of build.” Judge Jackson also described the similarities among the subjects 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. . . . 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 individual identified, does not wear a different facial expression than the
other five photographs.

Elmer Duffy, who had been an employee of a painting contractor in Salisbury,

Maryland, observed the shooting and related a story consistent with that of Green’s to

investigators for the Wicomico Bureau of Investigation. In an interview recorded three

days after the shooting, Mr. Duffy explained that, on the morning of December 10, he was

to paint the house next door to Green’s girlfriend’s, when, as he walked up, he immediately

recognized Smiley, with whom he had played basketball “way back in the ‘80s”.1 While

1
Mr. Duffy instantaneously identified Smiley:
[DETECTIVE]: All right. Let me – when you first walked up – let me clarify
this. When you first walked up to the house that you were doing work on
and you saw – and you saw Mark [Smiley], did you make any kind of contact
with him at all?
[MR. DUFFY]: Yeah. Made eye contact with him. I spoke to him. I said,
“What’s up, Mark?” . . . And he said, “Hey, what’s up, Elmer?”
***
[DETECTIVE]: So there was no question whatsoever in your mind at that
point you – that’s –
[MR. DUFFY]: On my mother’s grave that was Mark Smiley.

2
inside the house, Mr. Duffy raised the blinds to “see what [Smiley] be doing”. Mr. Duffy

told the investigators the same story as that given by Green: Smiley charged at Green as

Green approached his truck; Smiley shot at and chased Green; and Smiley fled after the

incident.

The morning after Mr. Duffy’s interview, Smiley made two telephone calls from

the Wicomico County Detention Center, which were recorded by the Detention Center as

part of its regular practice. In the two calls, one of which was to his mother and the other

to an unidentified female, Smiley stated that he knew Mr. Duffy would testify against him,

which he wanted to prevent; in the first conversation with his mother, Smiley asked that

his nephew, Keith “Heathcliff” Parker,2 get Mr. Duffy “out of the picture”:

[SMILEY]: That’s crazy, [M]om. But let – let Heathcliff – Heathcliff and
Kev and them know that the boy who lives across the street from Kevin,[3]
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, [M]om.
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, [M]om.
***
[SMILEY]: And Kevin, I’ll take him – I’ll see him Sunday, man.
[SMILEY’S MOTHER]: All right.
[SMILEY]: Make sure he take care of everything, [M]om, what I’m talking
about. You know what I’m talking about –
[SMILEY’S MOTHER]: All right.

2
At a subsequent hearing before Judge Leah J. Seaton, Smiley’s fellow inmate, who
testified, reaffirmed what he had previously told investigators, that “Heathcliff” was
Smiley’s nephew, Keith Parker.
3
“Kevin” has not been further identified.

3
In the second telephone call, Smiley tells the unidentified female to tell “Heathcliff” to

“make sure that [Mr. Duffy] don’t . . . come to court”:

[SMILEY]: . . . I think Heathcliff’s number is 359-1366. Take that number
down, too. (443)359-1366.
MS. SPEAKER: Okay.
[SMILEY]: Okay. And tell him that I said, man, make sure that [Mr. Duffy]
don’t – he don’t come to court, man.
MS. SPEAKER: Okay.
[SMILEY]: And make sure they don’t – do you know what I mean?
MS. SPEAKER: Yeah.

Two months after Smiley’s telephone calls, Mr. Duffy was murdered, for which Keith

“Heathcliff” Parker was indicted.

With respect to the incident with Green, Smiley was charged in a seventeen count

indictment with attempted first degree murder, attempted second degree murder, four

counts of first degree assault, four counts of second degree assault, four counts of reckless

endangerment, wearing, carrying or transporting a handgun, use of a firearm in the

commission of a felony and possession of a firearm after having been previously convicted

of a felony. A motions hearing was held later before Judge Jackson to address, inter alia,

Smiley’s motion to suppress Green’s identification.

Smiley argued that the identification was blighted by an impermissibly suggestive

photo array as a result of the elongated appearance of the other men in the four photographs.

Smiley presented Dr. John C. Brigham, who had testified as an expert in the field of

eyewitness identification, who opined that, “people presumably would be unlikely” to pick

a distorted image. Judge Jackson, however, did not find the array to be impermissibly

suggestive in stating, “it’s not a perfect photographic array, but it’s an adequate

4
photographic array for purposes of making an identification without impermissibly

suggesting to the viewer which picture to pick out.”

After Mr. Duffy’s murder, the State noted its intent to introduce at trial Mr. Duffy’s

recorded statement to investigators, under Section 10-901 of the Courts and Judicial

Proceedings Article of the Maryland Code (1974, 2006 Repl. Vol., 2012 Supp.)4 and

4
Section 10-901 of the Courts and Judicial Proceedings Article of the Maryland Code
provides:
(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.
(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
(continued . . . )

5
Maryland Rule 5-804(b) (2012),5 as a result of Smiley’s alleged procurement of Mr.

Duffy’s death. The State’s notice included a statement that Parker had been charged for

Mr. Duffy’s murder. The defense objected, although acknowledged that Parker had been

charged for the murder.

At the pretrial hearing before Judge Leah J. Seaton of the Circuit Court for

Wicomico County, an inmate testified that, upon hearing of Mr. Duffy’s death, Smiley was

relieved that Mr. Duffy would not testify at trial and was “jumping up and down” in

excitement:

[STATE’S ATTORNEY]: Tell Judge Seaton what the defendant said.
[INMATE]: It was just like, it was in regards to the fact that [Mr. Duffy]
was, I guess he was an eyewitness or something to whatever he had done or
whatever, and I guess he was just more or less relieved that person was . . .
the fact that that person wouldn’t be there to testify against him.

(continued . . . )
(iii) The identity of the witness through whom the statement will be
offered.
Md. Code Ann., Cts. & Jud. Proc. § 10-901 (1974, 2006 Repl. Vol., 2012 Supp.). All
references to Section 10-901 of the Courts and Judicial Proceedings Article of the
Maryland Code are to the 2012 version of the statute.

5
Maryland Rule 5-804(b) provides, in relevant part:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule
if the declarant is unavailable as a witness:
***
(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.
All further references to Maryland Rule 5-804 will reflect the 2012 language of the
Rule.

6
 [STATE’S ATTORNEY]: Okay. What, if any, actions on the defendant’s
part did you observe?
[INMATE]: At first, he was like he, it was like, it was like totally, I guess it
was like disbelief, and then it was like excitement, and I guess he went
through a lot of different emotions.
[STATE’S ATTORNEY]: How did he express excitement?
[INMATE]: One time, it was like he was, I guess he was just excited, I guess,
like happy.
[STATE’S ATTORNEY]: What was he doing to show that?
[INMATE]: I guess he was like, he was jumping up and down like he was
happy or something.

During the hearing before Judge Seaton, the inmate also testified that Smiley had

told him that Parker was involved with Mr. Duffy’s murder:

[SMILEY’S COUNSEL]: Do you remember that [the investigating officer]
told you that the police thought that Keith Parker murdered Mr. Duffy and
that Mr. Keith Parker’s nickname was Heathcliff?
[INMATE]: Yeah, after we got talking more about the whole situation after
[SMILEY’S COUNSEL]: Well, he told you. You didn’t tell him?
[INMATE]: No, I told him – I told him because, because when we were back
in there – when we were back in the cell, he was saying something about his
nephew, Heathcliff. I wanted to know who Heathcliff was and not unless if
he told me –

Judge Seaton, during the hearing, also took judicial notice of the case file for the

murder charge filed against Parker, case number K12-0587, in the Circuit Court for

Wicomico County, Maryland, which included Parker’s indictment for the first degree

murder of Mr. Duffy. Judge Seaton found that Smiley had specifically requested that

Parker prevent Mr. Duffy from appearing at trial, that the inmate’s testimony regarding

Smiley’s statement and reaction was credible and that Parker took part in Mr. Duffy’s

murder. Judge Seaton then found, by clear and convincing evidence, that Smiley “engaged

in, directed or conspired to commit the wrongdoing that procured the unavailability of Mr.

7
Duffy” and, therefore, concluded that Mr. Duffy’s statement about seeing Smiley shoot

Green was admissible at trial:

[THE COURT]: 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 [the inmate], and the recorded statement and transcript of that
conversation which actually reflected the conversation.
Under [Section] 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 that [the inmate’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
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.

During Smiley’s trial, Green testified and identified Smiley as the individual who

had assaulted him; Mr. Duffy’s recorded statement, as well as its transcript, also were

admitted. Smiley was convicted of attempted first degree murder, use of a firearm in the

commission of a crime of violence, three counts of reckless endangerment and the

possession of a regulated firearm after having been previously convicted of a crime of

violence; he was sentenced to life imprisonment plus ten years.

8
 In a reported opinion, the Court of Special Appeals affirmed the admission of both

Green’s extrajudicial identification and Mr. Duffy’s statement. Smiley v. State, 216 Md.

App. 1, 28, 37, 84 A.3d 190, 205, 211 (2014). Our intermediate appellate court concluded

that it was not clear error for Judge Jackson to find that the photo array was not

impermissibly suggestive and that he was within his discretion to admit the identification

into evidence at trial. Id. at 37, 84 A.3d at 211. The court also held that it was not clear

error for Judge Seaton to find that Smiley was involved in procuring Mr. Duffy’s

unavailability, based upon the facts she found connecting Smiley to the murder:

1) that [Smiley] ardently and insistently sent word to his nephew to get rid of
Elmer Duffy, 2) that Elmer Duffy was subsequently murdered, 3) that
[Smiley] jubilantly reacted to the news of the murder, and 4) that nephew
Heathcliff Parker was, indeed, then charged with that murder.

Id. at 24, 84 A.3d at 203.6

We granted Smiley’s Petition for Certiorari to consider the following questions,

which we have renumbered:

6
Smiley’s questions before the Court of Special Appeals were:
1. Did the lower court err in admitting the recorded pre-trial statement of an
unavailable witness where the only evidence connecting Mr. Smiley to
the witness’s unavailability was a proffer that Mr. Smiley’s nephew was
charged with murdering that witness?
2. Did the lower court err in failing to suppress a pre-trial extrajudicial
identification of Mr. Smiley where his photograph was one of only two
in a photographic array which was not digitally altered, and his
appearance differed from the other non-altered photograph in the array
and matched the description of the shooter?
3. Did the lower court err in determining that Mr. Smiley’s proffered expert
on the reliability of eyewitness testimony would not help the jury in a
case where the primary evidence of criminal agency were two eyewitness
identifications?

9
 1. Did the lower court err in failing to suppress an extrajudicial
identification of Mr. Smiley where his photograph was one of only two
in a photographic array which was not visibly altered and his clothing
matched the shooter’s described attire?
2. Should Maryland adopt, either as a matter of State constitutional or
evidentiary law, a standard for evaluating the admissibility of eyewitness
identifications which better reflects present scientific knowledge
concerning eyewitness memory?
3. Did the trial court err in admitting the statement of an unavailable witness
after finding that Mr. Smiley procured the witness’s unavailability at trial
based on a proffer that Mr. Smiley’s nephew was charged with murdering
that witness?

Smiley v. State, 437 Md. 637, 89 A.3d 1104 (2014).

We shall affirm and shall hold that the elongation of the face and torso of four of

the photographs in the photo array did not render the array impermissibly suggestive. We

shall also decline to adopt the theories and methodologies promulgated by the New Jersey

Supreme Court in State v. Henderson, 27 A.3d 872 (N.J. 2011), to review whether

extrajudicial identifications are suggestive, because we are satisfied with the two-part test

set out in (Gregory) Jones v. State, 310 Md. 569, 577, 530 A.2d 743, 747 (1987), cert.

granted, judgment vacated on other grounds, 486 U.S. 1050, 108 S. Ct. 2815, 100 L. Ed.

2d 916 (1988), conviction aff’d, sentence vacated and remanded, 314 Md. 111, 549 A.2d

17, for determining the admissibility of an extrajudicial eyewitness identification. We,

finally, shall hold pursuant to Section 10-901 of the Courts and Judicial Proceedings Article

of the Maryland Code, and Maryland Rule 5-804(b)(5)(B), that the trial court did not abuse

its discretion in admitting the statement of Mr. Duffy.

Smiley, with respect to the first question before us, argues, as he did before the trial

court and the Court of Special Appeals, that the photo array was impermissibly suggestive,

10
because of the elongation of the head and torso in four of the photographs, none of which

was his. The State asserts, with respect to the first question, as it did before the trial court

and the Court of Special Appeals, that the elongation did not create an impermissibly

suggestive photo array.

The admissibility of an extrajudicial identification is determined in a two-step

inquiry. (Gregory) Jones, 310 Md. at 577, 530 A.2d at 747. “The first question is whether

the identification procedure was impermissibly suggestive.” Id. If the procedure is not

impermissibly suggestive, then the inquiry ends. If, however, the procedure is determined

to be impermissibly suggestive, then the second step is triggered, and the court must

determine “whether, under the totality of circumstances, the identification was reliable.”

Id. If a prima facie showing is made that the identification was impermissibly suggestive,

then the burden shifts to the State to show, under a totality of the circumstances, that it was

reliable. (Kevin) Jones v. State, 395 Md. 97, 111, 909 A.2d 650, 658 (2006).

Suggestiveness can arise during the presentation of a photo array when the manner

itself of presenting the array to the witness or the makeup of the array indicates which

photograph the witness should identify. See (Gregory) Jones, 310 Md. at 577, 530 A.2d at

747; see also Conyers v. State, 115 Md. App. 114, 121, 691 A.2d 802, 806 (1997), cert.

denied, 346 Md. 371, 697 A.2d 111 (“The sin is to contaminate the test by slipping the

answer to the testee.”) (emphasis omitted).

In a case in which we concluded that a photo array was not impermissibly

suggestive, we explained that a photo array “‘to be fair need not be composed of clones.’”

Bailey v. State, 303 Md. 650, 663, 496 A.2d 665, 671 (1985), quoting Webster v. State, 299

11
Md. 581, 620, 474 A.2d 1305, 1325 (1984). In that case, Bailey alleged that the photo

array shown to the victim was impermissibly suggestive, because the men in four of the six

photographs did not resemble him. We concluded that the array was not impermissibly

suggestive, because the mug shots that comprised the array reflected a number of

similarities, to include: each man was photographed from the same camera angle; each man

had the same photo card around his neck, the text of which had been blacked out; each

individual was a young black male; each individual had close-cropped hair; several of the

men had slight mustaches, though none was bearded; the men wore different styles of

casual shirts; and none of the individuals had any unusual features.

In a subsequent case, Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985), we held

that the identification procedure was impermissibly suggestive when only a single

photograph was presented to the witness, under circumstances that were not exigent. In

Evans, the prosecutor, during a grand jury proceeding, presented a single photograph of

the suspect, Evans, to the witness:

“Q. PROSECUTING ATTORNEY: As you were playing games with [the
accomplice] in the bar, a fellow by the name of Shorty comes in, calls [the
accomplice], and [the accomplice] and Shorty go outside, is that right?
“A. [WITNESS]: Right.
“Q. PROSECUTING ATTORNEY: Now, I show you a Baltimore County
Police photograph No. 126237. It is a mug shot, and next to that number are
the numbers 6/08/83, indicating the date. Is this the Shorty that you saw?
“A. [WITNESS]: That is him.
“Q. PROSECUTING ATTORNEY: For the record, that is a photograph of
Vernon Evans, Junior.”

Id. at 497-98, 499 A.2d at 1266. The single photograph procedure, we stated, was

impermissibly suggestive “under the circumstances shown by [that] record”, because

12
“[t]here were no exigent circumstances justifying the presentation of a single photograph

rather than an appropriate array.” Id. at 498, 499 A.2d at 1267.

In the instant matter, Agent Beccio presented Green with an array containing six

photographs, which, as Judge Jackson found, portrayed six African-American males of

roughly the same age with the same hairstyle, the same facial hair and with the same facial

expression. With respect to elongation, Judge Jackson also found that, while the pictures

were not perfectly identical and that four of the faces “appear[ed] to be slightly elongated”,

they were not “cartoonish” and, even with the elongation, two of those four photographs

depicted individuals “who have that kind of build.” None of the four elongated photographs

included that of Smiley, who was depicted in one of the two remaining photographs.

Faced with a similar, albeit converse, situation of elongation of a photograph, the

Virginia intermediate appellate court reasoned, in Smith v. Commonwealth, 733 S.E.2d

683, 688 (Va. Ct. App. 2012), that the elongation of only the suspect’s photograph, but not

those of the other individuals in the array, was not impermissibly suggestive. The court

opined that an elongated face did not, intrinsically, “suggest to the victim that the long-

faced person was one of the assailants” and, moreover, there was no implication at any

point in the investigation that a long-faced man was the assailant. Id. at 688.

Here, the elongation of the four photographs, other than that of Smiley’s

photograph, did not suggest to Green that Smiley was the perpetrator. The dissimilarity

related to the elongation of the four photographs and those depicting Smiley and another

man did not render the photo array impermissibly suggestive.

13
 As to the second question, Smiley urges, as he did in the lower courts, that Judge

Jackson, in addressing whether the array was suggestive, should have adopted the theories

and methodologies suggested by the New Jersey Supreme Court in State v. Henderson, 27

A.3d 872 (N.J. 2011).7 The State demurs, asserting that “Maryland trial courts already

consider” the methodologies suggested by Henderson, because “the suppression court

screens for suggestiveness – and [whether] the extra-judicial identification process was

‘unnecessarily (impermissibly) suggestive’”, quoting Webster, 299 Md. at 607, 474 A.2d

at 1319. The State further asserts that we should not adopt the Henderson theories and

methodologies, because “the studies referred to in Henderson have limited value” and,

before adoption, any evidence supporting them “should be developed at the trial level”.

In Henderson, a special master was appointed by the New Jersey Supreme Court

“to evaluate scientific and other evidence about eyewitness identifications.” 27 A.3d at

877. The special master heard testimony from individuals who were qualified as experts

in eyewitness identification and received various studies regarding the same, from which

he made recommendations to the New Jersey Supreme Court with respect to factors that a

7
Counsel for Smiley, after oral arguments, by letter, directed our attention to two recent
opinions from the Supreme Judicial Court of Massachusetts, Commonwealth v. Gomes, 22
N.E.3d 897 (Mass. 2015), and Commonwealth v. Johnson, 22 N.E.3d 155 (Mass. 2015),
with respect to what has been termed the “transference effect”, which has been defined as
“mistakenly identifying a person as a crime perpetrator because of a familiarty with that
person in another context.” Brian L. Cutler & Margaret Bull Kovera, Evaluating
Eyewitness Identification 47-48 (2010). As this issue was not raised nor considered at the
trial court level we decline to address it. (Thomas) Jones v. State, 379 Md. 704, 712, 843
A.2d 778, 783 (2004).

14
trial court should consider when assessing the suggestibility and reliability of an eyewitness

identification. Id. at 884-85, 895. Based upon the special master’s report, the court

promulgated protocols to evaluate eyewitness identifications.8 Id. at 896-911.

Smiley urges adoption of the New Jersey standards for evaluating an eyewitness

identification, which, he asserts, “reflects present scientific knowledge concerning

eyewitness memory”. We decline to do so, because this Court, as well as the Court of

Special Appeals, have consistently reaffirmed application of the procedure in (Gregory)

Jones for examining challenges to the admissibility of eyewitness identifications. See, e.g.,

(Kevin) Jones, 395 Md. at 109-10, 909 A.2d at 657-58; Thomas v. State, 213 Md. App.

388, 416-17, 74 A.3d 746, 763-64 (2013), cert. denied, 437 Md. 640, 89 A.3d 1106 (2014);

8
The New Jersey Supreme Court concluded that photo arrays should be presented in such
a way that the individual presenting the array does not know where the suspect is placed
within the array. Henderson, 27 A.3d at 896. The court also noted that pre-identification
instructions should be given that inform the witness that the suspect may or may not be in
the array. Id. at 897. The court, in addition, opined that the array should be constructed
with at least five fillers and composed of individuals who resemble the suspect. Id. at 898.
The court, furthermore, instructed that the presenter of a photo array should avoid giving
feedback to the witness. Id. at 899. The court also noted that a witness should not view a
suspect before the identification. Id. at 900-01. The court, finally, cautioned that showups
are inherently suggestive. Id. at 902-03.
The court also opined, regarding the reliability of an identification, that a witness’s
stress at the time of the incident can affect the identification. Id. at 904. Reliability,
according to the court, may also diminish with the presence of a weapon at the scene. Id.
at 904-05. The duration of the incident, continued the court, as well as the distance the
eyewitness was from the scene and the lighting of the incident may have an impact on the
reliability of an identification. Id. at 905-06. The court, also, noted that certain
characteristics, such as the level of intoxication of the witness, the race of the perpetrator
and whether the perpetrator wore a disguise can affect reliability. Id. at 906-07. The court,
finally, cautioned that memory may fade over time. Id. at 907.

15
Mendes v. State, 146 Md. App. 23, 35-36, 806 A.2d 370, 377-78 (2002); McDuffie v. State,

115 Md. App. 359, 366-67, 693 A.2d 360, 363-64 (1997).

In any event, if expert testimony regarding an eyewitness identification is offered,

its admissibility is governed by Maryland Rule 5-7029 and Bomas v. State, 412 Md. 392,

987 A.2d 98 (2010). We stated in Bomas that our standard, the development of which

predated our adoption of Maryland Rule 5-702 but is substantially similar,10 is “whether

[the expert’s] testimony will be of real appreciable help to the trier of fact in deciding the

issue presented”. Id. at 416-17, 987 A.2d at 112 (internal citation and quotation omitted).

Bomas had urged us, however, to “adopt a standard that favor[ed] the admissibility of

expert testimony on eyewitness memory identification in criminal cases”, asserting “that

jurisdictions have trended toward the admissibility of” such evidence and Maryland should

follow in-kind. Id. at 403, 416, 987 A.2d at 104, 112. We declined to alter our standard,

but opined that “trial courts should recognize these scientific advances in exercising their

9
Maryland Rule 5-702 provides:
Expert testimony may be admitted, in the form of an opinion or otherwise, if
the court determines that the testimony will assist the trier of fact to
understand the evidence or to determine a fact in issue. In making that
determination, the court shall determine (1) whether the witness is qualified
as an expert by knowledge, skill, experience, training, or education, (2) the
appropriateness of the expert testimony on the particular subject, and (3)
whether a sufficient factual basis exists to support the expert testimony.
10
Maryland Rule 5-702, along with the rest of Chapter 5 of the Maryland Rules, was
adopted on December 15, 1993, and became effective July 1, 1994. 21:1 Maryland
Register P-1 (Jan. 7, 1994).

16
discretion whether to admit such expert testimony in a particular case.”11 Id. at 416, 987

A.2d at 112.

We again shall decline to adopt a new standard regarding the admissibility of an

extrajudicial eyewitness identification, or for incorporating expert testimony into

challenges of an eyewitness identification, because our jurisprudence already provides

suitable means to assay an eyewitness identification.

We, finally, address Smiley’s contention that the statements given by Mr. Duffy

identifying Smiley as the shooter just two months prior to Mr. Duffy’s murder were

inadmissible, because the State allegedly did not prove, by clear and convincing evidence,

that Smiley procured Mr. Duffy’s unavailability, as required by Section 10-901 of the

Courts and Judicial Proceedings Article of the Maryland Code and Maryland Rule 5-

804(b)(5)(B). Smiley asserts that “[t]here was no evidence of Mr. Parker’s involvement in

the killing because a mere arrest has no probative value” and, therefore, there was “no

evidence connecting Mr. Smiley to that killing.” We disagree.

In the wake of the proliferation of the “Stop Snitching!” video in and around

Baltimore City in 2004, in which “drug dealers” threatened violence to witnesses and

11
In Bomas, we also noted that “some of the factors of eyewitness identification are not
beyond the ken of jurors” and, therefore, their consideration does not depend upon expert
testimony. Bomas, 412 Md. at 416, 987 A.2d at 112. We noted, for example, that “the
effects of stress or time are generally known to exacerbate memory loss”. Id. Insofar as
similar factors were promulgated by the New Jersey Supreme Court, our jurisprudence
already recognizes that certain elements influence eyewitness identifications and may be
taken into account by the trial judge and jury without the admission of expert testimony.

17
police informants who testified against drug operatives,12 companion administration bills

to address the harm were introduced during the 2005 legislative session in the Maryland

Senate and House of Delegates, identified as Senate Bill 188 and House Bill 248. As

initially proposed, the bills, inter alia, provided for an exception to the hearsay rule that

would have permitted the admission of a prior statement given by a victim or witness if, in

a criminal case, the person against whom the statement was to be introduced intentionally

caused, or solicited another to procure, the unavailability of the victim or witness. 13 The

proposal also included a notice provision.14

Supporters of the bills emphasized that their passage was necessary to discourage

violent intimidation of witnesses, citing various examples:

 In November 2002, Baltimore City police Detective Thomas Newman
was assassinated in retaliation for testifying against the half-brother of

12
The “Stop Snitching!” video “warn[s] that the payback for snitches is a bullet in the
head.” Witness intimidation, Balt. Sun, Dec. 9, 2004, at 26A, available at
http://articles.baltimoresun.com/2004-12-09/news/0412090090_1_witness-intimidation-
stop-snitching-drug-trade (last visited Mar. 4, 2015).
13
The proposed hearsay exception was based upon Federal Rule of Evidence 804 (2005),
which provided, in relevant part:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule
if the declarant is unavailable as a witness:
***
(6) Forfeiture by Wrongdoing. A statement offered against a party that has
engaged or acquiesced in wrongdoing that was intended to, and did, procure
the unavailability of the declarant as a witness.
14
Other provisions in the bills, which were ultimately redacted by the legislature, included
increasing the penalty for procuring a witness’s unavailability, additional laws
criminalizing the solicitation of another to cause a witness’s unavailability and removing
juvenile court jurisdiction over those sixteen years old or older who had been accused of
wrongdoing related to an unavailable witness.

18
 one of his killers, who was put on trial for wounding Newman in a 2001
shooting.
 Rickey Prince, a 17-year-old Baltimore County homicide witness, was
kidnapped and shot in the head by two friends of the murderer in 2003.
 Tjane C. Marshall, the murderer of a pregnant Columbia woman, told
witness Rashall Wall that he would be killed if he testified. The victim
was found shot four times in the face, lying in bed at her Stevens Forest
apartment in Columbia’s Oakland Mills village in May 2003.
 In January 2004, four men barged into Anthony Black’s home, pointed
their guns at his fiancée and 10-year-old son, and threatened to kill them
if Black testified about their drug ring.
 On July 14, 2004, Tashiera Peterson, an 11-year-old girl, spent her
birthday recounting the murder of her father. The 19-year-old man who
allegedly perpetrated the shooting death of her father is accused of
ordering a hit on Tashiera and her mother to keep them from testifying.
 Less than two weeks ago, six men firebombed a home of a community
activist in Baltimore as retaliation for the woman informing authorities
about drug trafficking in her neighborhood.

A prosecutor recounted before the Senate Judicial Proceedings Committee and the House

Judiciary Committee a situation in which an individual awaiting trial had solicited others

to “hit” eyewitnesses:

[Adrian “Tony”] Jenkins was the only witness who would identify Andre
Chavis, his eventual murderer, as the man who pulled the trigger [in another
crime]. Over the course of the next 13 months, Chavis sent letters to other
inmates and friends on the outside calling Tony a snitch and telling them to
hide Tony and not let him come to court. . . . In May 2000, the State was
forced to dismiss the case because Tony Jenkins did not appear in court and
could not be found by police detectives. Eighteen months later he was dead,
executed with one shot to the head by a gun fired by Andre Davis.
There was one eyewitness to this murder, Noah Rich. Mr. Chavis had
tried to kill Noah on the same December night he killed Tony, but his gun
jammed and Noah was able to escape into the darkness and woods of Leakin
Park. Within weeks of the State’s disclosure of witnesses, Mr. Chavis was
again writing letters asking for help in silencing Noah Rich. He solicited one
of his associates to “hit” Noah.

Numerous witnesses also emphasized the 2002 firebombing of the home of Angela and

Carnell Dawson, in which their five children and Mrs. Dawson were killed, because Mrs.

19
Dawson had repeatedly called police to report drug activity in their neighborhood. See

Jeffrey Gettleman, Fire Kills Mother and Children at Home, N.Y. Times, Oct. 17, 2002, at

A22, available at http://www.nytimes.com/2002/10/17/us/fire-kills-mother-and-children-

at-home.html (last visited Mar. 4, 2015). Mr. Dawson later succumbed to his injuries from

the fire. Tom Pelton et. al, Man dies a week after fire at home, Balt. Sun, Oct. 24, 2002, at

1A, available at http://articles.baltimoresun.com/2002-10-24/news/0210240250_1_

dawson-family-dawson-died-coffins (last visited Mar. 4, 2015).

Faced with opposition due to the lack of evidentiary standards, the bills were

amended to provide a clear and convincing standard and to require a hearing. In final

passage, the hearsay exception required a finding that a party “has engaged in, directed, or

conspired to commit wrongdoing”:

(A) 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) 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

20
 THE WRONGDOING THAT PROCURED THE UNAVAILABILITY OF THE
DECLARANT.
(C) 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.

2005 Md. Laws 2510-16. The law became codified as Section 10-901 of the Courts and

Judicial Proceedings Article of the Maryland Code, which became effective October 1,

2005, (2005 Md. Laws 2516), and our Rule 5-804(b)(5)(B) was promulgated soon

thereafter.15

Here, Judge Seaton found that on the morning after Mr. Duffy gave his statement,

Smiley, “in the conversation with his mother . . . wanted to quote, ‘get Mr. Duffy out of

the picture,’” and even told his mother “quote, ‘make sure they take care of everything,

15
Maryland Rule 5-804(b)(5)(B) was enacted almost immediately after Section 10-905
became effective thereby codifying the exception to the hearsay rule, Maryland Rule 5-802
(“Hearsay rule”). 32 Maryland Register 1880 (Nov. 28, 2005); see also 155th Report of
the Standing Committee on Rules of Practice and Procedure: Hearings Before the Court of
Appeals (Nov. 7, 2005) (on file at the Court of Appeals).

21
Mom.’” Judge Seaton then found that “Mr. Duffy was murdered” and “that [the inmate’s]

testimony about the defendant’s statements and his reaction to the news of Mr. Duffy’s

murder [was] credible”; those statements being that Smiley had told the inmate that Parker

was involved with the murder and that Smiley was happy to hear of Mr. Duffy’s death.

Judge Seaton, finally, found that “Keith Parker ha[d] been charged with that murder” by

taking “judicial notice of the case file in [the Circuit Court for Wicomico County], Case

Number K12-0587 in which the murder charges [were] pending against Mr. Parker.”

Judge Seaton determined that her findings supported the determination that Smiley

had “engaged in, directed, or conspired to” Mr. Duffy’s murder, based upon the clear and

convincing standard. We agree.

Mr. Duffy’s statement regarding Smiley’s shooting of Green was properly admitted

based upon Judge Seaton’s findings derived from the evidence presented to her of Smiley’s

telephone calls seeking that “Heathcliff” prevent Mr. Duffy from attending trial; Mr.

Duffy’s murder; Smiley’s reaction to hearing about Mr. Duffy’s murder; as well as Keith

“Heathcliff” Parker’s indictment.16 Judge Seaton’s determination that the tenets of Section

16
Smiley has challenged that there is nothing in the record connecting Smiley to Mr.
Duffy’s murder, because there was only a “proffer” of Parker’s arrest. Judge Seaton,
however, took “judicial notice of the case file in [the Circuit Court for Wicomico County],
Case Number K12-0587 in which the murder charges [were] pending against Mr. Parker”,
which included an indictment for Mr. Duffy’s murder. Judge Seaton properly took judicial
notice of the Circuit Court file, because a court may take notice of its own records. E.g.
King v. State, 400 Md. 419, 427, 929 A.2d 169, 174 (2007) (“The court then granted the
State’s request that the court take judicial notice of the court file in the underlying criminal
case”.).

22
10-901 and Maryland Rule 5-804(b)(5)(B) applied was based on clear and convincing

evidence after a hearing. As a result, Mr. Duffy’s statement was properly admitted.

JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.

23