Battle v. State

TAVON BATTLE v. STATE OF MARYLAND

DERRICK WALKER v. STATE OF MARYLAND

No. 1175

No. 1348

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

November 20, 2015

UNREPORTED

Wright, Hotten, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.

Opinion by Rodowsky, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellants, Tavon Battle and Derrick Walker, were jointly tried and convicted by a jury in the Circuit Court for Baltimore City. Their separate appeals were consolidated in this Court. On October 20, 2013, they and a third person had robbed Joshua Lee at the point of a gun wielded by Battle. Walker removed valuables from Lee's person. Battle was convicted of armed robbery, Walker of robbery. Each was convicted of related offenses. Each was sentenced to twenty years confinement, with all but twelve years suspended, and three years probation on release.

Each appellant challenges the denial by the trial court of his motion to suppress an identification made by the victim at a showup. Walker phrases the question presented as follows:

"Whether the trial court erred in denying appellant's motion to suppress an impermissibly suggestive and unreliable show up identification and the resulting in-court identification in violation of his right to Due Process?"

Battle raises the same issues.

We shall affirm because, as hereinafter explained,

(1) the showup was necessary, and

(2) reliability, vel-non, is a question for the jury and not for the court when, at a suppression hearing, the identification is found not to be unnecessarily suggestive.

The Evidence

When reviewing the ruling at a suppression hearing, we look only to the record at that hearing. Wallace v. State, 219 Md. App. 234, 243, 100 A.3d 1173, 1178 (2014). Here, there were two witnesses at the hearing, first the victim, Lee, and then the investigating officer, Dexter Nazareno. The defense conducted direct examination of the witnesses, and the State cross-examined, because the defense had the burden of showing, prima facie, a constitutional violation. See Smith & Samuels v. State, 6 Md. App. 59, 68, 250 A.2d 285, 291, cert. denied, 254 Md. 720, 255 Md. 743 (1969), cert. denied, 397 U.S. 1057, 90 S. Ct. 1402 (1970).

These facts were not controverted. At about 8:50 a.m. Lee saw three black males standing at a bus stop when he, as a pedestrian, left the Douglas Projects to cross Caroline Street in order to buy cigarettes at the store on the corner of Caroline and Fayette Streets. He had also seen them around the Douglas Projects once before. After Lee returned from the store and had reentered the projects, the three men robbed him at gunpoint. The one, who pointed a handgun in his face and did the talking, wore a black North Face jacket and something orange. The second man, who wore orange pants, went through Lee's pockets. The third man stood there. The robbery took about five minutes. When the robbers fled further into the projects, Lee went to a security guard station at Johns Hopkins Hospital on the northwest corner of the 400 block of Broadway. He gave the guard a description of the three men. The guard called 9-1-1.

Officer Nazareno responded within five minutes. He took Lee to the emergency room because Lee was "shooken up." Officer Nazareno broadcast on his police radio. About ten minutes after the officer used the radio, he took Lee to an outdoor basketball court.

From a distance of about seventy-five feet, while seated in the police cruiser, Lee observed two men, seated on the ground with their hands behind their backs. At least two police officers were present, with a police cruiser. There were no drawn guns. The two men had sweatshirt hoodies on. Lee could see their faces, but not their eyes. Lee responded to a question from Officer Nazareno. The State's position is that an extra-judicial identification took place at that time.

About two months later, Detective Joy Pegues telephoned Lee to arrange to take a statement from him. Lee told her that the police had locked up the wrong persons.

On direct examination by the attorneys for the appellants, Lee said that he did not recall giving Officer Nazareno at the hospital a description of the robbers, other than that they were black men. Lee said that, when he was taken to the basketball court, Officer Nazareno asked if the two men "looked familiar," and he replied, "Yes." He disclaimed recollection of saying anything else while identifying the men. Lee said that he told Detective Pegues the wrong men were locked up because that was the fact of the matter.

On cross-examination by the State, Lee initially disclaimed a recollection of describing the robbers to Officer Nazareno. After having been shown his written statement,he recalled that the gun wielder wore a black North Face jacket and that the frisker wore orange pants. He said that the frisker had on a ski mask. Although he did not know their names, he had seen the three men in the neighborhood once before. He agreed that he had given those descriptions to Officer Nazareno. After testifying on cross that he said the two men at the basketball court were familiar and denying that they were the robbers, Lee was asked: "And, you said to Officer Nazareno: 'Those are the guys who robbed me.'?" Over objection he replied, "Yes." With respect to telling Detective Pegues that the appellants were the wrong men, Lee said that he had done that because he had been threatened. His cross-examination concluded:

"Q. So, in fact, you did identify the people who robbed you on October 20th, correct?

"A. Yes."

Officer Nazareno testified that when he encountered Lee at the guard station, the victim was quite upset. Lee described the gunman as wearing a North Face jacket, with an orange hoodie inside, and jeans and one of the others as wearing bright orange pants and a big gold watch on his left wrist. Lee made no mention of a ski mask. Outside the emergency room, Lee described the third robber as having dreads, a black jacket and New Balance sneakers. Officers Duck and McMillian had also responded in a single cruiser and were on the scene when Officer Nazareno was talking to Lee. Once Lee had given anyfurther descriptions, Officers Duck and McMillian canvassed for suspects. Officer Nazareno put the descriptions on the air so that other units would also know.

While Lee and Officer Nazareno were at the emergency room, one or the other of Officers Duck and McMillian "called out" to report that they had two possible suspects at an outdoor basketball court about three blocks from the emergency room. Officer Nazareno told Lee that "we have two guys that are possibly the suspects. All I'm going to need you to tell me is if it's - you know, if it's them." At the basketball court, Lee had an unobstructed view of the appellants from the back seat of the cruiser. Officer Nazareno asked Lee, "Is it them." He replied, "Yes."

At oral argument on the motion to suppress, counsel for appellant Battle submitted that the elapsed time from the robbery to the identification was "15, 20, 30 minutes." The State argued that the interval was "approximately 15 to 20 minutes."

The Ruling

The court denied the motion to suppress in an opinion from the bench on the morning following the hearing. It ruled after doing "a little bit more thorough research" on the issues. The judge found that Officer Nazareno "gave a credible [ac]count of what transpired." The suppression court noted that the Johns Hopkins Hospital campus is adjacent to where the robbery took place. The judge found as a fact that "within a half an hour of the original assault[ive] conduct," Officer Nazareno was alerted that two suspects were being detained.He found that Lee identified the two suspects as being two of the robbers. It was "unclear" whether handcuffing was apparent to Lee.

The court concluded that the instant showup did not violate the Due Process Clause of the United States Constitution. Further, the court ruled that it did not have to engage in an analysis of reliability under the factors outlined in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972).

Following conviction by a jury, at a trial at which Lee testified for the State, and the imposition of sentence by the court, these appeals were noted.

Standard of Review

In reviewing on appeal a trial court ruling on a motion to suppress, including a motion to suppress based upon an allegedly, impermissibly suggestive, extra-judicial identification, we grant "'great deference to the fact finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and determining first-level facts.'" McDuffie v. State, 115 Md. App. 359, 366, 693 A.2d 360, 363 (1997) (quoting Perkins v. State, 83 Md. App. 341, 346, 574 A.2d 356, 358 (1990). Here, the suppression court found that Officer Nazareno's account of what transpired was credible while Lee's testimony, the court found, made it "difficult to discern, really, where his mind is at." The court pointed out that sometimes Lee said, "Yeah, I made the identification because that's who did it" and, at other times, he said, "I failed to make anyidentification because I've been threatened." We consider the first level facts to be those described by Officer Nazareno.

Discussion

Suggestiveness

A suggestion of guilt, to a degree, is inherent in any showup. Implicit in arranging a showup is that the police have some reason for conducting it. But, all showups are not, for that reason, unconstitutional.

"The admissibility of an extrajudicial identification is determined in a two-step inquiry. [Gregory] Jones [v. State], 310 Md. [569,] 577, 530 A.2d [743,] 747 [(1987)]. 'The first question is whether the identification procedure was impermissibly suggestive.' Id. If the procedure is not

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