Tucker v. State

MURPHY, J.,

files a dissenting opinion.

Dissenting Opinion by HARRELL, Judge, which MURPHY and ADKINS, JJ., join in part.

I write separately for two reasons. First, to appeal to parties (but primarily the State, I imagine, in most instances) in future criminal trials, where either expert testimony is proffered or a jury instruction is sought on the subject of *385cross-racial identification difficulties, to seek a Frye1-Reed2 or in limine hearing (and the judges in those cases to make a determination based on that hearing) regarding the validity and reliance vel non of the scientific underpinning of that subject. Second, in the present case, I would affirm the convictions rendered by the jury in the Circuit Court for Anne Arundel County, based on application of harmless error analysis.

I.

There appear to be three reported Maryland opinions in which a flagship issue was the propriety of jury instructions or closing argument involving reputed cross-racial eyewitness identification difficulties—the present case, Smith v. State, 388 Md. 468, 880 A.2d 288 (2005), and Janey v. State, 166 Md.App. 645, 891 A.2d 355 (2006), cert. denied, 392 Md. 725, 898 A.2d 1005 (Table) (2006). In none of these cases was a motion in limine filed or made, or a demand lodged seeking a Frye-Reed hearing, regarding the scientific basis of the theory of cross-racial identification difficulties. Likewise, no judge in any of those cases, on his or her initiative, elected to hold such a hearing. Thus, it has gone largely unexamined and unresolved in Maryland whether the underlying social science, adequate to the purposes of a court of law, (that is, whether the theories and methodologies are generally accepted in the relevant scientific community—see Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 332-33, 923 A.2d 939, 949-50 (2007)), supports a relevant instruction or the propriety of such an argument. It is crystal clear that the reputed bases for such an argument or requested instruction is grounded on as yet untested (in Maryland courts) scientific research and conclusions. See Smith, 388 Md. at 478-85, 880 A.2d at 294-98.3

*386Because of the procedural posture in which Smith, Janey, and the present case reached our appellate courts (due to the absence of a Frye-Reed or in limine hearing to evaluate the science), conclusive resolution of the validity and reliability of the underlying science has been shielded from necessary judicial scrutiny.4 Let us consider the threshold question before proceeding to the consequences, as have been the cases so far. I urge someone to move, in the appropriate circumstances, for a Frye-Reed or in limine hearing and for a trial judge to consider and rule on the scientific validity and reliability of the underlying science. If the science withstands Frye-Reed or in limine scrutiny (in the latter case, applying Frye-Reed principles), a pattern instruction could be devised and included in the standing litany so as to avoid future cases of the kind represented here.

II.

Whether the instruction sought by Tucker in the present case was generated by the evidence is, for me, problematic. I suppose, for present purposes, that we must assume that it was apparent to the jury, the trial judge, and the parties that Tucker is African-American and Ms. Auth, the victim, is Caucasian-American (whatever the bundle of observable physical attributes those classifications portend). The only record evidence bearing on Ms. Auth’s ability to identify and distinguish between African-Americans (or any other race of persons) came from a hugely unsuccessful fishing expedition by defense counsel during cross-examination of Ms. Auth when *387he tried to establish that she possessed limited substantive exposure to African-Americans in the rural community where she resided at the time of the crime. The defense’s efforts yielded testimony that, to the contrary of what apparently he hoped to establish, Ms. Auth lived on a street where 10 of the 13 homes were occupied by African-American families. Thus, essentially, the sole evidentiary predicate “generating” the instruction sought here was that the victim and the defendant presumably had different skin colors. If that is all that it takes to generate an evidentiary basis for the giving of a cross-racial identification jury instruction, much of the mischief I foresaw in my dissent in Smith, 388 Md. at 489-500, 880 A.2d at 300-06, will more likely come to pass.5 I hope that will not be the case. I believe, on this record, Tucker received more than he was entitled to receive in giving any instruction regarding cross-racial identification difficulties, even with the sentence added by the judge at the behest of the prosecutor.

Assuming, however, that Tucker was entitled by the evidence to a cross-racial identification difficulty instruction, that the instruction he sought was an accurate statement of the law (itself a big “if’), and that it was error to engraft onto his proposed instruction what the State asked for, I nonetheless conclude, on this record, such error was harmless beyond a reasonable doubt.

Whatever the nature of the difficulties of a cross-racial identification, that was not central to Tucker’s trial. The actual eyewitness identification difficulties here were attributed to the acute angles and time available for Ms. Auth’s observations of him while he was breaking into and moving *388about her home, and by the hooded shirt that he wore. All of these factors were covered by the general, pattern eyewitness jury instruction given. The cross-racial identification instruction was not important.

Defense counsel freely argued his view of the implication of the cross-racial identification instruction he requested, without reference to the errant sentence tacked on by the judge at the State’s request. The State did not argue what the significance of its added sentence meant to the case.

As the State points out in its brief, there was substantial evidence of Tucker’s guilt quite apart from any racial implications. Ms. Auth had two opportunities to observe Tucker in or about her home as the crime unfolded. Her description of his physique and clothing aligned with his image on the videos from the Target stores. In addition, accounting for the explained mis-perception by the victim regarding the sex of Tucker’s co-hort, Joyner, Ms. Auth positively identified Joyner as the other participant in the crime. Tucker’s possession and use of the stolen credit cards in close temporal proximity to the break-in, and the extraordinary circumstances of the loss and destruction of Tucker’s car, and the timing of his police report about that, endorsed the conviction. I am persuaded, beyond a reasonable doubt, that the errant sentence included in the cross-racial identification instruction given contributed nothing to the guilty verdict. Thus, I would affirm the judgment of this Anne Arundel County jury.

Judge MURPHY joins only Part II of this dissent. Judge ADKINS joins only that part of Part II addressed to harmless error.

Dissenting Opinion by MURPHY, Judge.

Although I agree with almost everything in Judge Harrell’s dissenting opinion, I join only part II of the opinion,, and write separately to express my opinion that—while the admissibility of “cross-racial identification” evidence should be decided in an in limine hearing—the Frye/Reed test may not be applicable to such evidence. Whether the Frye/Reed test does or does *389not apply to “cross-racial identification” evidence should be decided in the first instance by the trial judge presiding at the in limine hearing.

. Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

. Reed v. State, 283 Md. 374, 391 A.2d 364 (1978).

. The majority opinion in Smith conceded that, at least in 2005, "[a]t this juncture the extent to which own-race bias affects eyewitness *386identification is unclear based on the available studies addressing this issue, so that we cannot state with certainty that difficulty in cross-racial identification is an established matter of common knowledge.” 388 Md. at 488, 880 A.2d at 300.

. Beyond the nuances of what is "race” and which "race” any individual fairly may be deemed a member of for purposes of own-race bias regarding identification of persons of other "races,” there decidedly appears to be no scientific consensus which direction the asserted difficulties run where persons of apparent Asian and Hispanic ancestry are implicated. Smith, 388 Md. at 481-82 nn. 7-8, 880 A.2d at 296 nn. 7-8.

. Compare Smith, 388 Md. at 488, 880 A.2d at 300 (apparent Caucasian-American eyewitness/victim bolstered her identification of apparent African-American defendant by alluding to her special training and faculties for recognizing people), with Janey, 166 Md.App. at 650-51, 891 A.2d at 358 (apparent Asian-American eyewitness acknowledged difficulty picking defendant from photographic array because "if I see a whole bunch of African-American face[s], I’ll probably miss, you know, I’m not very good at picking”).