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Small v. State

Court of Appeals of Maryland

June 24, 2019

MALIK SMALL
v.
STATE OF MARYLAND

          Argued: October 10, 2018

          Circuit Court for Baltimore City Case No. 115191006

          Barbera, C.J. Greene, [*] Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          GREENE, J.

         Ordinarily, the reliability of relevant evidence is a matter committed to the province of the jury. There may, however, be a reliability question concerning evidence of eyewitness identifications challenged on due process grounds. In such cases, the court will review an identification's reliability in the first instance if law enforcement procured the identification utilizing suggestive procedures. The matter before this Court concerns such a due process reliability inquiry.

         Petitioner Malik Small ("Petitioner" or "Mr. Small") alleges that evidence of an out-of-court identification procedure, through which the victim of an assault identified Petitioner as the perpetrator of the crime, should have been suppressed because it violated his right to due process of law. We begin by reviewing and reaffirming the well-settled test for assessing the admissibility of evidence of extrajudicial eyewitness identifications. Applying that test to the facts of this case, we conclude that the challenged identification contained sufficient indicia of reliability to overcome the suggestive nature of the pretrial identification procedures. Therefore, we shall affirm the judgment of the Court of Special Appeals.

         FACTUAL & PROCEDURAL BACKGROUND

         On June 17, 2015, a man tried to rob, and ultimately shot, Ellis Lee ("Mr. Lee") at a bus stop in Baltimore City. Following the incident, the Baltimore City Police Department administered two photo arrays to Mr. Lee, which resulted in his identification of Petitioner Malik Small as the assailant. The State charged Mr. Small with a 10-count indictment in the Circuit Court for Baltimore City. Before the matter proceeded to trial, Mr. Small moved to suppress evidence of the two extrajudicial photographic array identification procedures.

          On March 18, 2016, the Circuit Court for Baltimore City held a suppression hearing to assess the admissibility of evidence of the identification procedures.

         The Suppression Hearing

         At the outset, the suppression court ruled that evidence of the first photo array could not be admitted by the State against Mr. Small at his trial.[1] The State and Mr. Small's counsel were, however, permitted to produce evidence of the first array during the suppression hearing in order to provide context for the second photo array. The hearing proceeded on the question of whether the second photo array would be admissible in evidence at Mr. Small's trial.

         During the hearing, Mr. Lee recalled the incident that occurred on June 17, 2015. He testified that, at 2:00 a.m., he was sitting at a bus stop on Northern Parkway in Baltimore City looking at his cell phone when a man approached him. The man stood approximately one foot away from Mr. Lee, pointing a gun at Mr. Lee and covering the bottom portion of his face with a white T-shirt. The man said, "Let me get your money." Mr. Lee emptied his pockets and told the man that he did not have any money. The man said, "Run, bitch," so Mr. Lee ran away. As Mr. Lee fled, the man fired the gun, and one bullet struck the back of Mr. Lee's right leg. Mr. Lee made it to Gittings Avenue where he was met by an ambulance that transported him to the emergency room at Johns Hopkins Hospital.

         While describing the incident during the suppression hearing, Mr. Lee testified that he noticed the gun before he saw the face of the man holding it. The assailant, Mr. Lee said, was covering the bottom portion of his face up to his nose with a white T-shirt, but his neck was exposed. Mr. Lee recalled that it was dark outside, but there was a very dark orange street light shining on the man, which made it "kind of easier to see him." His interaction with the assailant, Mr. Lee estimated, lasted "two minutes at most."

         At the hospital, Mr. Lee was interviewed by three detectives, including Detective Matthew DiSimone, the lead investigator on the case. Detective DiSimone testified that Mr. Lee described the assailant as "a black male, light skin, believed he had seen him before, a light [T]-shirt, tattoo on the right side of his neck, 5'8", regular sized, a short haircut. He held the bottom of his shirt up over his face, blue jeans, block letter tattoo on neck, had letter 'M' in it." Mr. Lee believed he had seen the assailant twice before the incident at Staples, where Mr. Lee worked, because he recognized the assailant's voice and tattoo. Mr. Lee did not describe their interactions at Staples, and he did not know the assailant by name.

         After Mr. Lee was released from the hospital, Detective DiSimone and Mr. Lee revisited the scene of the crime. Then, they drove to the Northern Police District. According to Detective DiSimone, Mr. Lee gave another description of the assailant at the police station. Mr. Lee described the assailant as "a light brown, black male, 5'8", regular sized, with a scraggly beard, a tattoo on his neck." He also described the tattoo "in detail," as being "[b]lock styled cursive script, bold, not dull, containing multiple letters and at least one of them was an 'M.'"

         Detective DiSimone used a police database to compile mugshots to be included in a "photo array identification procedure."[2] To compile the array, he searched for men with light brown complexions and beards, who were between 5'6" and 5'8". He did not look for men with neck tattoos. Ultimately, the first array included six pictures - Petitioner's photo and five filler photos.[3] Detective DiSimone included one front-facing photo of each person in the first array in order to keep the tattoo out of view. "[He] felt that the tattoo was described in so much detail that it would be leading if [he] put the tattoo in the picture." Despite Detective DiSimone's intentions, the "M" tattooed on Petitioner's neck was plainly visible in Petitioner's photograph.[4] Petitioner was the only person depicted in the first array who had a visible neck tattoo.

         After compiling the array, Detective DiSimone printed the six photographs and array instructions, which were to be read to Mr. Lee. He gave the photos and instructions to Detective Stanley Ottey, the administrator for the first photo array. A blind procedure[5]was used to administer the first photo array. Detective Ottey was not involved in the investigation, and neither Detective Ottey nor Mr. Lee was advised of the identity of the suspect. Detective Ottey administered the first photo array at 8:37 a.m. During the procedure, Detective Ottey made notes about Mr. Lee's statements. In reference to Petitioner's photo, Detective Ottey wrote that Mr. Lee said he "looks like [the assailant], doesn't think it's him."

         Mr. Lee testified that during the first array, "[he] picked out one who kind of looked like [the assailant], but [he] wasn't too sure." He remembered seeing "[t]he tattoo on the neck, [he] just related the two . . . it look[ed] pretty much like the same tat[too] [he] saw [during the incident]." Yet, Mr. Lee explained that the assailant was covering his face during the incident, so Mr. Lee said, "I'm not going to give you 100 percent of somebody's life in my control . . . . I gave him in terms of 80 percent sure." The parties stipulated to the fact that Mr. Lee could not make a positive identification during the first array.

         After the first array, Mr. Lee gave another statement to Detective DiSimone. Then, Detective DiSimone compiled the second photo array. Detective DiSimone believed that "if a second array was shown containing side profile pictures, which gave a view of the tattoo, it might assist in . . . identification." To compile the second array, Detective DiSimone searched for photos of men with light brown skin and a beard. This time, he also looked for photos of men with a tattoo on their neck. He explained that the database had a small selection of individuals with neck tattoos, so he did not specifically look for tattoos with letters. Ultimately, the second array included twelve pictures - two photos[6] each of six individuals. Petitioner was included with five new fillers, making Petitioner the only individual from the first array who was repeated in the second array.[7] All of the fillers in the second array had a tattoo on their neck.[8] In addition to Petitioner, at least one filler had a tattoo that contained letters. None of the fillers had a tattoo with the letter "M" in it.

         The second array was administered by Sergeant Detective Ethan Newberg using a blind procedure. Sergeant Newberg was not involved in the investigation, and he did not know who the suspect was. Likewise, Mr. Lee was not advised whom law enforcement suspected was the assailant. Sergeant Newberg conducted the procedure at approximately 11:45 a.m. in an office where only he and Mr. Lee were present. Sergeant Newberg explained that he read Mr. Lee a set of array instructions, then he showed Mr. Lee all twelve photographs. During the procedure, Sergeant Newberg made notes of Mr. Lee's statements. In reference to Petitioner's photo, Sergeant Newberg testified that, according to his notes, Mr. Lee said, "That's him. That's who shot me."

         Mr. Lee testified that before the second array, he was told that he was being shown more photos "to make sure this was the same person." Additionally, he only remembered seeing Petitioner's photograph during the second array.[9] Mr. Lee went on to explain that although the assailant was covering his face, "the characters [Mr. Lee] saw on his neck and what [Mr. Lee] saw on the picture . . . matched."

         On Petitioner's photo, Mr. 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 [at Staples] on two different occasions." Mr. Lee said that when he identified Petitioner as the assailant, he was 100% sure of his identification. Mr. Lee was confident in his identification because when he saw the tattoo, "[i]t was almost like a rush of memory from both Staples and what [he] remembered seeing that night."

         Mr. Lee testified that two weeks later, he saw a man on a dirt bike whom he believed was the assailant. Mr. Lee had already been told that Mr. Small was arrested, but he called the police to report the man he saw. In response, Mr. Lee recalled being told, "That can't be true. We already have the guy . . . he's already confessed to it. You're fine."[10]

         Sometime after June 17, 2015, Mr. Lee spoke with an Assistant State's Attorney about his identification. During that conversation, Mr. Lee indicated that he was 70% sure about his identification. Mr. Lee could not articulate what caused his confidence level to decrease.

         At the conclusion of the suppression hearing, the presiding judge ruled that the second photo array was admissible. To reach this conclusion, the judge first considered whether the array was suggestive. She did not find it problematic that the individuals in the second photo array did not share the same tattoo or all have letters in their tattoos. The judge explained that it is not reasonable to expect the police to find similar-looking people who also have similar tattoos. The judge did, however, take issue with the timing of the first and second arrays. She explained:

My problem is with the timing, with the fact that they showed [Mr. Lee] a picture of [Mr. Small] at 8:30 in the morning . . . [Mr. Lee] says, "I'm not sure that's the guy," and then they show him another photo array . . . approximately three hours later, and the only person that's repeated in the second photo array is [Mr. Small]. That's troubling.

         Nevertheless, the judge concluded that the second photo array was admissible because she found it reliable by clear and convincing evidence. She reasoned that "[Mr. Lee] knew who [Mr. Small] was. [Mr. Lee] had already seen him twice before. [Mr. Lee] recognized his voice. It had nothing to do with the photograph." Therefore, the suppression court denied Mr. Small's motion to suppress the second photo array.

         The Trial and Verdict

         The matter proceeded to trial before a jury in the Circuit Court for Baltimore City.

          Ultimately, the jury found Mr. Small guilty of attempted robbery, second-degree assault, and reckless endangerment. Mr. Small was sentenced to eight years of incarceration. Mr. Small noted an appeal to the Court of Special Appeals.

         The Court of Special Appeals

         On appeal, the Court of Special Appeals reviewed, inter alia, the suppression hearing court's ruling, denying Mr. Small's motion to suppress the second photo array. Small v. State, 235 Md.App. 648, 668-91, 180 A.3d 163, 174-89 (2018). The intermediate appellate court reviewed Maryland and United States Supreme Court caselaw regarding due process challenges to extrajudicial identifications. Id. As to the merits of Petitioner's due process claim, the court first concluded that the second array was suggestive. Id. at 680, 180 A.3d at 176-84. Yet, the court determined that the identification had sufficient indicia of reliability to overcome the procedure's suggestiveness. Id. at 683-91, 180 A.3d at 184-89. Therefore, the Court of Special Appeals affirmed the suppression hearing court's denial of Mr. Small's motion to suppress evidence of the second photo array. Id. at 691, 180 A.3d at 189.

         Mr. Small petitioned this Court for a writ of certiorari. We granted the petition on June 1, 2018. Small v. State, 459 Md. 399, 187 A.3d 35 (2018). The issue now before this Court is whether the suppression court properly denied Petitioner's motion to suppress.[11]

         PARTIES' ARGUMENTS

         Petitioner contends that the suppression hearing court erred in denying his motion to suppress evidence of the second photo array because the identification procedure violated his right to due process of law. Petitioner challenges the Court of Special Appeals' reliability analysis. Petitioner posits that the court erred in concluding that the identification was reliable and admissible.

         Respondent, the State of Maryland, argues that the suppression hearing court properly admitted, and the Court of Special Appeals properly affirmed admission of, evidence of Mr. Lee's extrajudicial identification. According to Respondent, both courts properly analyzed the identification's reliability and therefore properly denied Petitioner's motion to suppress.

         Also before this Court is the brief submitted by amici curiae.[12] Amici challenge the framework that Maryland courts apply for assessing due process challenges to pretrial identifications, which was articulated by the United States Supreme Court in Manson v. Brathwaite[13] and adopted by this Court in Jones v. State.[14] Amici contend that this framework does not adequately assess an identification's reliability, and that we should revise this framework as, according to amici, many of our sister states have done.

         DUE PROCESS CHALLENGES TO EXTRAJUDICIAL IDENTIFICATION PROCEDURES

         The right to due process of law is guaranteed by the Fifth Amendment and Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Webster v. State, 299 Md. 581, 599, 474 A.2d 1305, 1314 (1984). "Due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures." Jones, 310 Md. at 577, 530 A.2d at 747 (quoting Moore v. Illinois, 434 U.S. 220, 227, 98 S.Ct. 458, 464, 54 L.Ed.2d 424 (1977)). When an accused challenges the admissibility of an extrajudicial identification procedure[15] on due process grounds, Maryland courts assess its admissibility using a two-step inquiry. Id. The inquiry, in essence, seeks to determine whether the challenged identification procedure was so suggestive that the identification was unreliable. "[R]eliability is the linchpin[.]" Manson, 432 U.S. at 114, 97 S.Ct. at 2252, 53 L.Ed.2d 140.

         In step one of the due process inquiry, the suppression court must evaluate whether the identification procedure was suggestive. Jones, 310 Md. at 577, 530 A.2d at 747. The defendant bears the burden of making a prima facie showing of suggestiveness. See Smiley v. State, 442 Md. 168, 180, 111 A.3d 43, 50 (2015).

         If the court determines that the extrajudicial identification procedure was not suggestive, then the inquiry ends and evidence of the procedure is admissible at trial. Jones, 310 Md. at 577, 530 A.2d at 747. If the court determines that the identification procedure was tainted by suggestiveness, then evidence of the identification is not per se excluded. Id.; Perry v. New Hampshire, 565 U.S. 228, 232, 132 S.Ct. 716, 720, 181 L.Ed.2d 694 (2012) ("An identification infected by improper police influence, our case law holds, is not automatically excluded."). Rather, the suppression court must proceed to the second stage of the due process inquiry. Jones, 310 Md. at 577, 530 A.2d at 747.

         In step two of the due process inquiry, the suppression court must weigh whether, under the totality of the circumstances, the identification was reliable. Id. At this stage, the burden rests with the State to show that the identification was reliable by clear and convincing evidence. Smiley, 442 Md. at 180, 111 A.3d at 50. The United States Supreme Court and this Court have previously identified five factors that may be used to assess reliability. The factors include the witness's opportunity to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's description of the criminal, the witness's level of certainty in his or her identification, and the length of time between the crime and the identification. Jones, 310 Md. at 577-78, 530 A.2d at 747 (citation omitted); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). Ultimately, the court must determine whether the identification is admissible by "weigh[ing] the reliability of the identification against the 'corrupting effect' of the suggestiveness." Jones, 310 Md. at 578, 530 A.2d at 747 (citation omitted).

         Amici urge us to abandon this legal framework and endorse a revised approach that is consistent with the New Jersey Supreme Court's decision in State v. Henderson, 27 A.3d 872 (N.J. 2011). In Henderson, the New Jersey Supreme Court undertook an extensive review of a court-appointed special master's recommendations about the factors that many experts believe impact a witness's ability to identify the perpetrator of a crime. Id. Based on these recommendations, the court delineated a list of factors that trial courts may consider when assessing suggestiveness and reliability.[16] Id. at 920-21. In addition, the court revised the Manson framework.[17]

         The case at bar is not this Court's first opportunity to review Maryland's Manson-Jones framework in light of the New Jersey Supreme Court's decision in Henderson. See Smiley, 442 Md. at 184, 111 A.3d at 52. In Smiley, we had the opportunity to adopt New Jersey's framework for assessing the admissibility of eyewitness identifications, but we did not do so. Id. "We decline[d] to do so, because this Court, as well as the Court of Special Appeals, have consistently reaffirmed application of the procedure in [] Jones for examining challenges to the admissibility of eyewitness identifications." Id. Consistent with our decision in Smiley, we decline the invitation to abandon the Manson-Jones framework, which Maryland courts use, and have used for decades, to assess due process challenges to extrajudicial identification procedures.[18] The reliability inquiry remains to be whether, under the totality of the circumstances, the challenged identification was reliable, despite the suggestiveness in the identification procedure.

         The focus of the reliability assessment is on the totality of the circumstances, and such an inquiry is necessarily a comprehensive one. Suppression courts can and ought to consider the myriad of facts and circumstances presented by a particular case, which may impact the identification's reliability. Wood v. State, 196 Md.App. 146, 162, 7 A.3d 1115, 1124 (2010) ("A reliability appraisal . . . is extremely fact-specific. It is a multi-factored determination that, with the help of guidelines, looks to the totality of the circumstances."). The court's assessment should be guided by the circumstances before it. In addition to the five Biggers[19] reliability factors, the suppression court may find that the factors identified in Henderson, many of which overlap with the Biggers factors, and other factors are relevant to the court's evaluation.[20] See, e.g., United States v. Greene, 704 F.3d 298, 308-10 (4th Cir. 2013) (applying the Henderson variables in conjunction with the five Biggers factors). Therefore, although we do not revise this Court's jurisprudence for assessing the admissibility of eyewitness identifications, we do recognize the breadth that is inherent in an inquiry that hinges upon the totality of the circumstances.[21] Having established the appropriate test for analyzing Petitioner's due process challenge, we now apply the aforementioned principles to the facts of this case.

         STANDARD OF REVIEW

         Upon reviewing a suppression hearing court's decision to grant or deny a motion to suppress, we limit ourselves to considering the record of the suppression hearing. McFarlin v. State, 409 Md. 391, 403, 975 A.2d 862, 868-69 (2009). We accept the suppression hearing court's factual findings and determinations regarding the credibility of testimony unless they are clearly erroneous. Id. at 403, 975 A.2d 869. Findings cannot be clearly erroneous "[i]f there is any competent material evidence to support the factual findings of the trial court[.]" YIVO Institute for Jewish Research v. Zaleski, 386 Md. 654, 663, 874 A.2d 411, 416 (2005). The evidence and inferences reasonably drawn therefrom are viewed in the light most favorable to the prevailing party. McFarlin, 209 Md. at 403, 975 A.2d at 869. Legal conclusions are reviewed de novo. Id. We independently apply the law to the facts to determine whether a defendant's constitutional rights have been violated. Id.

         DISCUSSION

         A. Suggestiveness

         First, we review whether Petitioner made a prima facie showing that the second photo array procedure was suggestive. Before this Court, the parties agree that the procedure was suggestive. Nonetheless, we conduct our own constitutional evaluation of the array in order to provide guidance primarily to Maryland courts and law enforcement.

         An identification procedure is properly deemed suggestive when the police "[i]n effect . . . repeatedly sa[y] to the witness, 'This is the man.'" Jones, 310 Md. at 577, 530 A.2d at 747 (citing Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969)). The impropriety of suggestive police misconduct is in giving the witness a clue about which photograph the police believe the witness should identify as the perpetrator during the procedure. See Conyers v. State, 115 Md.App. 114, 121, 691 A.2d 802, 806 (1997), cert. denied, 346 Md. 371, 697 A.2d 111 (1997) ("The sin is to contaminate the test by slipping the answer to the testee." (emphasis omitted)).

         In the context of a photographic array, the array's composition may, for instance, signal to the witness which photo to select. Smiley, 442 Md. at 180, 111 A.3d at 50 (citations omitted). This Court has said that the composition of a photo array "to be fair need not be composed of clones." Id. at 181, 111 A.3d at 50 (citations omitted). Though, the individuals in the array should resemble each other. Webster, 299 Md. 581, 620, 474 A.2d 1305, 1325 (1984). Concerns may arise when one individual's photograph is shown to a witness multiple times or somehow stands out from the other photos in the array. Simmons v. United States, 390 U.S. 377, 383-94, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968) (explaining that if a witness sees "the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized . . . the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen[.]").

         This Court has not had occasion to address whether depicting an individual's tattoo in a photo array may render the array suggestive. The Court of Special Appeals has, however. See, e.g., Sallie v. State, 24 Md.App. 468, 332 A.2d 316 (1975). In Sallie, an eyewitness to a robbery described one of the robbers as having a diamond-shaped mark on his right cheek. Id. at 470, 332 A.2d at 317. Law enforcement showed the eyewitness a photo array, in which Louis Sallie was depicted with a diamond-shaped mark on his cheek. Id. at 471, 332 A.2d at 318. The witness identified Mr. Sallie as the perpetrator, at least in part because of the mark. Id. On appeal, Mr. Sallie argued the photo array was suggestive because he was the only person pictured with a diamond-shaped mark on his right cheek. Id. at 472, 332 A.2d at 318. Based on the alleged suggestiveness in the photo array, Mr. Sallie argued that the eyewitness's in-court identification of Mr. Sallie was tainted and, thus, inadmissible. Id.

         The court reviewed the photo array for suggestiveness. Id. Although the court determined that the mark was a unique identifying feature, the court explained:

Every individual is unique. The mouth, the lips, the teeth, the chin, the cheeks, the nose, the eyes, the forehead, the ears, the hair, or any combination of two or more of those and other features, make every individual unique. They make him different from all others. They are the basis upon which any person is visually distinguished from other persons. The more subtle the distinctions, the more difficult the identification, and the greater potential for error.

Id. at 472, 332 A.2d at 318. The court reasoned that the burglar's distinctive mark could have exonerated Mr. Sallie, but it implicated him because the burglar and Mr. Sallie both had the unique mark. Id. The mark, therefore, made the identification not only "inevitable" but also more reliable. Id. Ultimately, the Court of Special Appeals concluded that, despite the fact that Mr. Sallie was pictured with his unique identifying mark, the photo array was not suggestive. Id. at 472, 332 A.2d at 318.

         Additionally, the Court of Special Appeals has reviewed whether repeating an individual's picture may render a photo array suggestive. See, e.g., Morales v. State, 219 Md.App. 1, 98 A.3d 1032 (2014). In Morales, Luis Morales argued that the identification procedure, through which he was identified as the perpetrator of a crime, was impermissibly suggestive. Id. at 17-18, 98 A.3d at 1042. His argument rested upon the fact that he was the only person included in both of the two identification procedures administered to the witnesses. Id. The court determined that there was no reason to believe that the witnesses noticed that Mr. Morales's photo was repeated. Id. at 18, 98 A.3d at 1042. The police used a more recent photo of Mr. Morales in the second procedure than the first procedure. Id. In addition, nothing that the witnesses said indicated that they chose Mr. Morales's photograph because they had seen it before. Id. at 18, 98 A.3d at 1043. Therefore, the court concluded that the identification procedure was not suggestive. Id. at 19, 98 A.3d at 1043.

         In the present case, Petitioner's photo was emphasized during the first photo array. Petitioner was the only person in the first array who had a tattoo visible on his neck. Petitioner's tattoo was prominently visible, and it clearly depicted a cursive-script "M." Our determination that Petitioner's photo was emphasized is also evidenced by the fact that Detective DiSimone recognized that to depict Petitioner's conspicuous tattoo in the first array would draw attention to his photo. Detective DiSimone testified "that the tattoo was described in so much detail that it would be leading if [he] put the tattoo in the picture" during the first array. Despite the tattoo's presence, unlike in Sallie, Mr. Lee was only 80% positive that Petitioner was the assailant after viewing the first array.

         After Petitioner's photo was emphasized in the first photo array, his photo recurred in the second array. Unlike in Morales, Mr. Lee had reason to notice that Petitioner was repeated in the second array. Petitioner was the only person from the first array with an "M" tattoo, and then the only person from the first array who was repeated in the second array. Although Petitioner was not the only person in the second array with a tattoo on his neck, he was, again, the only person with the letter "M" tattooed on his neck. The implicit suggestion inherent in repeating Petitioner's photo with his distinct tattoo is also bolstered by the fact that Mr. Lee recalled being told that the second array was "to make sure this was the same person," after Mr. Lee said that Petitioner "looked like" the assailant as depicted in the first array.

         Similar to Morales, however, law enforcement used a different photo of Petitioner in the second array than in the first array. Additionally, nothing that Mr. Lee said indicated that he chose Petitioner's photograph in the second array because he saw it in the first array. To the contrary, at the suppression hearing, Mr. Lee testified that he identified Petitioner because he recognized Petitioner's tattoo from the incident and Staples, not from the first array. The fact that Mr. Lee may not have been susceptible to the suggestive procedure does not absolve this procedure of its suggestive elements. By emphasizing Petitioner's photo in the first array, and then repeating Petitioner's photo in the second array, law enforcement implicitly suggested to Mr. Lee that he should identify Petitioner as the assailant. See Simmons, 390 U.S. at 383, 88 S.Ct. at 971, 19 L.Ed.2d 1247. Therefore, we conclude that the second photo array was unduly suggestive.

         B. ...


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