Watson v. State

LIONEL CHRISTOPHER WATSON v. STATE OF MARYLAND

No. 1190-2019

Court of Special Appeals of Maryland

July 22, 2021

Circuit Court for Wicomico County Case No. C-22-CR-19-0124

Reed Beachley, Salmon, James P., (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Reed J.

On August 6, 2019, a jury, sitting in the Circuit Court for Wicomico County, convicted Lionel Christopher Watson ("Appellant"), of second-degree assault. The court sentenced him to a term of eight years' imprisonment. In this timely appeal, Appellant presents two questions for our review, which we quote:

I. Did the circuit court err in denying Appellant's motion to suppress a pretrial identification?

II. Must Appellant's conviction be reversed as a result of improper prosecutorial closing argument?

We answer Appellant's questions in the negative, and will therefore affirm the judgment of the circuit court.

BACKGROUND^[1]

On January 24, 2019, Officer Adkins of the Salisbury Police Department responded to 208 Delaware Avenue after receiving a report of an assault.^[2] Upon arriving at the scene, he found Tracy Allen, the assault victim in this case. According to Officer Adkins, her jaw "was disfigured, very swollen swelling." Ms. Allen described her assailant to Officer Adkins as "a black male wearing a gray toboggan and a gray sweatshirt approximately in his 30's," whom she identified by the moniker "C.J." She further informed Officer Adkins that C.J. resided in "the last brown house on the right on Pearl Street near Fitzwater Street," which the police later identified as 606 Pearl Street. A subsequent search of the Salisbury City Police Department's database revealed that Appellant lived at that address and that he was also known as "C.J."

Officer Adkins relayed the above information to Detective Underwood, who assembled a photographic array of six black males, including Appellant.^[3] The men depicted in the array appeared to have been of approximately the same age, with comparable facial characteristics, and similarly styled facial hair. All but one of them, moreover, had closely cropped hair.^[4] Appellant, however, was the sole person in the array with a facial scar.^[5]When Detective Underwood presented the photo array to Ms. Allen, she selected Appellant's picture, circled it, and initialed below.

Appellant filed a motion to suppress Ms. Allen's extrajudicial identification, in which he claimed that the photo array had been unduly suggestive. At the hearing on that motion, Officer Adkins identified Appellant as the individual depicted in the photograph that Ms. Allen had circled. The defense, in turn, argued that the array had been impermissibly suggestive because Appellant's picture was the only one depicting an individual with a facial scar. The court denied Appellant's motion. Ruling from the bench, it reasoned:

I've been sitting here looking at the photos. To me, it looks like a very good photo array as far as six individuals with similar characteristics of facial hair. There is a scar apparently in photograph number 3 which was identified. However, it is certainly not a very prominent scar in the photograph. It might be more prominent on him, personally. But as far as the photo array is concerned, there is a scar, not prominent. I do not think it makes it unduly suggestive or impermissibly suggestive. So, the [c]ourt is going to deny the motion to suppress.

We shall include additional facts as necessary to our discussion of the questions presented.

DISCUSSION

I

Appellant contends that the court erroneously denied his motion to suppress Ms. Allen's pre-trial identification. He argues that "because no other photograph depicted an individual with a facial scar, the array was impermissibly suggestive and the State failed to demonstrate that the resulting identification was reliable and therefore admissible." The State counters that Appellant failed to satisfy his burden of demonstrating that the array was impermissibly suggestive, arguing that the scar was not prominent. The State further stresses that Ms. Allen "did not tell the police officer who interviewed her that her assailant had a scar before she looked at the array." That omission, the State asserts, indicates that Ms. Allen either "did not notice the scar ... or did not deem it significant enough to describe[.]" Even if the photo array had been unduly suggestive, the State maintains, Ms Allen's prior familiarity with Appellant rendered her identification reliable.

Standard of Review

We defer to the suppression court's factual findings, and will not disturb them unless clearly erroneous. See Small v. State, 464 Md. 68, 88 (2019) ("We accept the suppression hearing court's factual findings and determinations regarding the credibility of testimony unless they are clearly erroneous."). "'A factual finding is clearly erroneous if there is no competent and material evidence in the record to support it.'" Anderson v. Joseph, 200 Md.App. 240, 249 (2011) (quoting Hillsmere Shores Improvement Ass'n, Inc. v. Singleton, 182 Md.App. 667, 690 (2008)). When reviewing whether incriminating evidence was obtained in violation of an accused's constitutional rights, however, we conduct an independent de novo review of the record, applying the law to the facts contained therein. Small, 464 Md. at 88.

Due Process Challenges to Extrajudicial Identifications

The Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights protect criminal defendants from "'the introduction of evidence of, or tainted by unreliable pretrial identifications obtained through unnecessarily suggestive procedures.'" Id. at 82-83 (citation omitted). An extrajudicial identification procedure is impermissibly suggestive when the police "give[] the witness a clue about which photograph the[y] believe the witness should identify as the perpetrator[.]"^[6] Id. at 88 (citation omitted). The presentation of a photo array may be rendered unduly suggestive either by "the manner itself of presenting the array to the witness" or when "the makeup of the array indicates which photograph the witness should identify." Smiley v. State, 442 Md. 169, 180 (2014). In this case, we are clearly concerned with the latter form of suggestiveness. As the Court of Appeals has repeatedly held, although an array ought to be composed of individuals who are similar in appearance, "'it need not be composed of clones'" in order to comply with due process. Small, 646 Md. at 89 (quoting Smiley, 442 Md. at 181).

When challenging the admissibility of an extrajudicial identification procedure on due process grounds, the defendant bears the initial burden of "making a prima facie showing of suggestiveness." Id. at 83 (citation omitted). Should he or she fail to do so, "the inquiry ends and evidence of the procedure is admissible at trial." Id. If, however, the requisite showing is made, the burden shifts to the State. Id. at 84. In order to satisfy that burden, and thereby defeat the defendant's motion to suppress, the State must "show that the identification was reliable by clear and convincing evidence." Id. (citation omitted). Ultimately, in determining whether the State has satisfied its burden, a suppression court must assess whether, under the totality of the circumstances, the reliability of the identification outweighs "the 'corrupting effect' of the suggestiveness." Id. (citation omitted).

In support of his assertion that the identification procedure at issue was impermissibly suggestive, Appellant relies on Small, supra. Following an assault and an attempted robbery, the victim in that case described his assailant to the police as "'a light brown, black male, 5'8", regular sized, with a scraggly beard, [and] a tattoo on his neck.'" Id. at 76. He further described his attacker's neck tattoo as "[b]lock styled cursive script, bold, not dull, containing multiple letters and at least one of them was an 'M.'" Id. (some internal quotation marks omitted). Thereafter, the victim was presented with two photo arrays, both of which included the defendant's picture. In the first array, the defendant was the only person with a visible neck tattoo. The "fillers" in the second array all had neck tattoos, although the defendant was the only person whose tattoo included the letter "M."^[7]The Court of Appeals held that the second array was impermissibly coercive, reasoning that "[b]y emphasizing [the defendant's] photo in the first array, and then repeating [the defendant's] photo in the second array, law enforcement implicitly suggested to [the victim] that he should identify [the defendant] as the assailant." Id. at 92.

Appellant's reliance on Small is misplaced, as that case is readily distinguishable from the instant matter. When describing her assailant, Ms. Allen made no mention of a facial scar, suggesting that it was not a significant identifying characteristic. There is, therefore, no indication that by omitting similarly scarred individuals from the array, the police emphasized Appellant's photo. See Harris v. United States, 375 A.2d 505, 509 (D.C. 1977) (holding that the presentation of a photo array was not unduly suggestive where "the witness did not inform the police about the [defendant's] scar until after the identification," thereby indicating that the "scar was apparently not an important identifying characteristic."). Small is further distinguishable from the present case in that Ms. Allen was presented with a single array. The police did not, therefore, implicitly suggest that Ms. Allen identify Appellant as her attacker by presenting two arrays in which he was "the only person from the first array who was repeated in the second array." Small, 464 Md. at 91.

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