Argued: October 10, 2018
Circuit Court for Baltimore City Case No. 115191006
Barbera, C.J. Greene, [*] Adkins, McDonald, Watts, Hotten,
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
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.
& PROCEDURAL BACKGROUND
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
March 18, 2016, the Circuit Court for Baltimore City held a
suppression hearing to assess the admissibility of evidence
of the identification procedures.
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. 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.
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.
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."
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.
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
DiSimone used a police database to compile mugshots to be
included in a "photo array identification
procedure." 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. 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. Petitioner was the only person
depicted in the first array who had a visible neck tattoo.
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 procedurewas 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."
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.
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 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. All of the fillers in the second array had
a tattoo on their neck. 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.
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."
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. 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."
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."
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
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.
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].
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
Trial and Verdict
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.
Court of Special Appeals
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.
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.
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.
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
before this Court is the brief submitted by amici
curiae. 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 and adopted by this Court in Jones
v. State. 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
PROCESS CHALLENGES TO EXTRAJUDICIAL IDENTIFICATION
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 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.
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).
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.
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).
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. Id. at 920-21.
In addition, the court revised the Manson
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. 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.
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 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. 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. Having
established the appropriate test for analyzing
Petitioner's due process challenge, we now apply the
aforementioned principles to the facts of this case.
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.
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.
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)).
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[.]").
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,
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.
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.
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.
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
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.