Circuit Court for Baltimore City Case No. 118137008
C.J., Shaw Geter, Adkins, Sally D. (Senior Judge, Specially
Adkins, Sally D., J.
is the linchpin in determining the admissibility of
identification testimony . . . ." Manson v.
Brathwaite, 432 U.S. 98, 114 (1977).
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.
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.
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.
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.
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. Moss and Mahan believe Lawson positively
identified Traynham as her assailant in the procedure.
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.
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
presents us with one question: whether the trial court erred
in admitting evidence of identification.
Array & Testimony
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.
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?
[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. ...