Argued January 12, 2015
Circuit Court for Wicomico County, Maryland. Case No. K12-0028.
FOR PETITIONER: Marc A. DeSimone, Jr., Assistant Public Defender (Paul B. DeWolfe, Public Defender of Baltimore, MD) on brief.
FOR APPELLEE: Cathleen C. Brockmeyer, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, of Baltimore, MD) on brief.
Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
[442 Md. 170] 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 [442 Md. 171] 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 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 [442 Md. 172] 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" . While 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, 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, 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.
[442 Md. 173] * * *
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.
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 [442 Md. 174] 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 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.) and Maryland Rule 5-804(b)
(2012), as a result of [442 Md. 175] 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 ...