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Traynham v. State

Court of Special Appeals of Maryland

December 20, 2019

OSWALD TRAYNHAM
v.
STATE OF MARYLAND

          Circuit Court for Baltimore City Case No. 118137008

          Fader, C.J., Shaw Geter, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Adkins, Sally D., J.

         "[R]eliability is the linchpin in determining the admissibility of identification testimony . . . ." Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

         Karen Lawson was robbed at gunpoint outside of her home. Days later, she looked at a photo array of possible suspects. On her first look at Photo No. 4 she commented "[b]eard yes," and on her second look said "[d]on't think so-not skinny enough." Oswald Traynham was the individual in Photo No. 4, and he was subsequently found guilty of armed robbery, carrying a concealed weapon, and other crimes. During his trial, the court admitted into evidence the photo array "identification." We are asked to decide whether the trial court erred by admitting the photo array-which means to decide if the array, which is hearsay, falls under any exception to the rule against hearsay. Because we hold that the photo array procedure did not constitute a prior statement of identification under Maryland Rule 5-802.1(c), and satisfied no other hearsay exception, we reverse Traynham's convictions, and remand for a new trial.

         BACKGROUND FACTS

         On the evening of February 14, 2018, Karen Lawson had just parked her car on Elmora Avenue when a man approached her asking for directions. He grabbed her, put a gun to her side, took her bags, and ran away. Lawson's cash, credit cards, gift cards, and car keys were in her stolen bag.

         Baltimore City Police Officer Gary Doyle responded to the scene. Lawson described her assailant to Doyle as a "black male with a bushy beard, approximately 5'10", 5'11" in height, small to medium build wearing a black cap and all black clothing." A magazine from a BB gun was recovered at the scene.

         Detective Calvin Moss was the lead detective assigned to the case. The day after the robbery, Lawson told him there were charges on her credit card made after she had been robbed. Moss went to the various locations where Lawson's cards had been used (a 7-11 and two gas stations) and obtained surveillance video for the corresponding times. The footage from all three locations showed the same men, and a red Ford Explorer. Moss recorded the surveillance video from one of the locations (a BP gas station) with his phone. Moss showed that BP gas station video on his phone to Lawson; she positively identified one of the men in the video as her assailant. Moss made flyers based on still photographs of two of the subjects from the surveillance video and distributed them to officers in the area.

         Officer Gary Klado received this flyer, which contained not only suspect photographs, but also a vehicle description of the Explorer. On February 16, he observed the Explorer on Harford Road. Klado approached the vehicle, photographed it, and obtained the driver's license. The driver was Traynham. After Klado relayed this information to Moss, Moss created a photo array that included Traynham's photo. Detective Steve Mahan conducted the photo array procedure with Lawson.[1] Moss and Mahan believe Lawson positively identified Traynham as her assailant in the procedure.

         Just a few hours after the photo array was conducted, Moss arrested Traynham. He searched Traynham's apartment, and found Lawson's purse, bags, and some other items. Traynham claimed that they all had been given to him by someone else. Moss returned Lawson's property to her and, while doing so, had a conversation with Lawson and her husband about the case and Traynham.

         At trial, the State introduced the photo array over Traynham's objection. Lawson testified about the photo array and then, without objection, identified Traynham in court. A Baltimore City jury convicted Traynham of armed robbery, robbery, theft of property with a value of $100 - $1500, and carrying a concealed weapon. He was sentenced to ten-years' incarceration for the armed robbery conviction and a concurrent three years for the concealed weapon conviction.

         Traynham presents us with one question: whether the trial court erred in admitting evidence of identification.

         DISCUSSION

         Photo Array & Testimony

         Ten days after the robbery, Mahan conducted the photo array. Lawson was shown the array twice, according to Baltimore Police Department ("BPD") procedure. Mahan made notes on the Photographic Array Action Form (the "Array Form"), and recorded what Lawson said as she reviewed the array. Lawson testified that the comments written by Mahan accurately reflected what she said to him at the time she reviewed the array. Regarding Photo No. 4-Traynham's photo-Mahan wrote that Lawson commented "[b]eard yes" on the first viewing, and "[d]on't think so-not skinny enough" on the second pass through. Moss and Mahan viewed these comments as identifying Traynham. Traynham was arrested approximately three hours after the array procedure was conducted.

         During trial, over Traynham's objections, the photo array was admitted into evidence, as well as Lawson's testimony regarding the array:

[STATE] Q: And, Ms. Lawson, did you also have occasion to view a series of photographs in relation to your robbery?
[LAWSON] A: Yes, I did.
Q: And were you able to pick out the person that robbed you from those photos?
A: From those 'photos, I did choose a person that-
Q: Ms. Lawson, which photo did you choose?
[TRAYNHAM]: Objection.
[THE COURT]: Overruled.
A: I chose Photo No. 4.
Q: And why did you choose Photo No. 4?
A: So looking at Photo No. 4, the beard, the color, the beard was what, you know, I mainly saw that night. ...

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