1

Marcus Lee Smiley v. State of Maryland, No. 37, Sept. Term 2014, Opinion by Battaglia, 

J.

CRIMINAL PROCEDURE – EYEWITNESS IDENTIFICATION – 

IMPERMISSIBLY SUGGESTIVE PROCEDURE 

An extrajudicial identification is not impermissibly suggestive when the photographs of 

four of the six individuals in the photographic array were slightly elongated in the face and 

torso.

CRIMINAL PROCEDURE – EYEWITNESS IDENTIFICATION 

The Court declined to adopt the approach promulgated by the New Jersey Supreme Court 

in State v. Henderson, 27 A.3d 872 (N.J. 2011), for assessing the admissibility of an 

extrajudicial eyewitness identification, because Jones v. State, 310 Md. 569, 530 A.2d 743 

(1987), delineates the standard in Maryland to be applied in evaluating eyewitness 

identification. 

EVIDENCE – HEARSAY EXCEPTIONS – FORFEITURE BY WRONGDOING –

EVIDENCE OF PARTY’S INVOLVEMENT 

The trial court did not err in finding, by clear and convincing evidence, that the defendant 

had “engaged in, directed, or conspired to” procure the witness’s absence, pursuant to 

Section 10-901 of the Courts and Judicial Proceedings Article of the Maryland Code and 

Maryland Rule 5-804(b)(5)(B). 
2

IN THE COURT OF APPEALS 

OF MARYLAND 

No. 37 

September Term, 2014 

MARCUS LEE SMILEY 

v. 

STATE OF MARYLAND 

Barbera, C.J. 

Harrell

Battaglia 

Greene

Adkins

McDonald 

Watts,

JJ.

Opinion by Battaglia, J.

 

Filed: March 9, 2015 

Circuit Court for Wicomico County, 

Maryland 

Case No. K12-0028

Argued: January 12, 2015
1

During the early hours of December 10, 2011, while smoking a cigarette in his 

girlfriend’s backyard, in Salisbury, Maryland, Travis Green noticed Marcus Smiley, 

Petitioner, between five and seven feet away, “looking crazy and everything”, sitting atop 

the steps of the adjacent house. Within moments, when Green was about to leave, Smiley 

asked him, “did [you] see where he went?”, to which Green did not reply. When Green 

was about to enter his truck, Smiley fired the first shot at him, at close range. 

After Green attempted to escape by sliding across the front seat of the truck and 

fleeing, Smiley gave chase while shooting at Green, striking him in his right arm, abdomen 

and thigh. Though out of ammunition, “[Smiley] kept clicking the gun, you know, it wasn’t 

no more bullets left in it”, according to Green, who asked, “what are you still trying to 

shoot me for, what is this about, money?” Smiley, though, did not answer and “just took 

off after” the incident.

Green was flown to Shock Trauma for treatment, where two days later Special 

Agent Matthew Beccio of the Federal Bureau of Alcohol, Tobacco, Firearms and 

Explosives presented him with a photographic array created by the Wicomico County 

Bureau of Investigation. The photo array contained six photographs, including that of 

Smiley, created from digital images cached in an electronic database of those who “had the 

same physical appearance, facial appearance as [Smiley]”. The six photographs had been 

arranged in two rows of three, with Smiley’s photograph located in position five. Green 

selected Smiley’s photograph in “approximately 30 or so seconds”. 

At the subsequent hearing, in the Wicomico County Circuit Court, during which the 

array was scrutinized by Judge Newton Jackson, III, Judge Jackson noted that four of the 
2

photographs in the array were “slightly elongated with respect to the head, neck and what 

little bit of the torso of each individual can be seen”, but still resembled people “who have 

that kind of build.” Judge Jackson also described the similarities among the subjects of the 

photographs: 

They depict six African-American males, all roughly of the same age, all 

with close-cropped hair, no corn rows, no dreadlocks, no Afros, all closecropped hair. Five of the six have receding hairlines. All six have facial hair 

of the same style. . . . They all have the same expression on their faces, too, 

people who aren’t happy having their picture taken, they look rather glum. 

Nobody is smiling. In other words, picture number five, who apparently is 

the individual identified, does not wear a different facial expression than the 

other five photographs. 

Elmer Duffy, who had been an employee of a painting contractor in Salisbury, 

Maryland, observed the shooting and related a story consistent with that of Green’s to 

investigators for the Wicomico Bureau of Investigation. In an interview recorded three 

days after the shooting, Mr. Duffy explained that, on the morning of December 10, he was 

to paint the house next door to Green’s girlfriend’s, when, as he walked up, he immediately 

recognized Smiley, with whom he had played basketball “way back in the ‘80s”.1 While 

 

1 Mr. Duffy instantaneously identified Smiley: 

[DETECTIVE]: All right. Let me – when you first walked up – let me clarify 

this. When you first walked up to the house that you were doing work on 

and you saw – and you saw Mark [Smiley], did you make any kind of contact 

with him at all? 

[MR. DUFFY]: Yeah. Made eye contact with him. I spoke to him. I said, 

“What’s up, Mark?” . . . And he said, “Hey, what’s up, Elmer?”

* * * 

[DETECTIVE]: So there was no question whatsoever in your mind at that 

point you – that’s – 

[MR. DUFFY]: On my mother’s grave that was Mark Smiley. 
3

inside the house, Mr. Duffy raised the blinds to “see what [Smiley] be doing”. Mr. Duffy 

told the investigators the same story as that given by Green: Smiley charged at Green as 

Green approached his truck; Smiley shot at and chased Green; and Smiley fled after the 

incident. 

The morning after Mr. Duffy’s interview, Smiley made two telephone calls from 

the Wicomico County Detention Center, which were recorded by the Detention Center as 

part of its regular practice. In the two calls, one of which was to his mother and the other 

to an unidentified female, Smiley stated that he knew Mr. Duffy would testify against him, 

which he wanted to prevent; in the first conversation with his mother, Smiley asked that 

his nephew, Keith “Heathcliff” Parker,2 get Mr. Duffy “out of the picture”: 

[SMILEY]: That’s crazy, [M]om. But let – let Heathcliff – Heathcliff and 

Kev and them know that the boy who lives across the street from Kevin,[3]

Elmer Duffy, was a witness. He – he told people he seen me standing outside 

and he seen me running with the gun and all that stuff. 

* * * 

Elmer – Elmer Duffy, the boy that lives across the street from Kevin, [M]om. 

The boy that lives across the street from Kev. 

* * * 

You see that boy Elmer, get him out of the picture. You know, I don’t want 

that stuff. I ain’t trying to go out like that, [M]om. 

* * * 

[SMILEY]: And Kevin, I’ll take him – I’ll see him Sunday, man. 

[SMILEY’S MOTHER]: All right. 

[SMILEY]: Make sure he take care of everything, [M]om, what I’m talking 

about. You know what I’m talking about – 

[SMILEY’S MOTHER]: All right. 

 

2 At a subsequent hearing before Judge Leah J. Seaton, Smiley’s fellow inmate, who 

testified, reaffirmed what he had previously told investigators, that “Heathcliff” was 

Smiley’s nephew, Keith Parker. 

3

“Kevin” has not been further identified. 
4

In the second telephone call, Smiley tells the unidentified female to tell “Heathcliff” to 

“make sure that [Mr. Duffy] don’t . . . come to court”: 

[SMILEY]: . . . I think Heathcliff’s number is 359-1366. Take that number 

down, too. (443)359-1366. 

MS. SPEAKER: Okay. 

[SMILEY]: Okay. And tell him that I said, man, make sure that [Mr. Duffy] 

don’t – he don’t come to court, man. 

MS. SPEAKER: Okay. 

[SMILEY]: And make sure they don’t – do you know what I mean? 

MS. SPEAKER: Yeah. 

Two months after Smiley’s telephone calls, Mr. Duffy was murdered, for which Keith 

“Heathcliff” Parker was indicted. 

With respect to the incident with Green, Smiley was charged in a seventeen count 

indictment with attempted first degree murder, attempted second degree murder, four 

counts of first degree assault, four counts of second degree assault, four counts of reckless 

endangerment, wearing, carrying or transporting a handgun, use of a firearm in the 

commission of a felony and possession of a firearm after having been previously convicted 

of a felony. A motions hearing was held later before Judge Jackson to address, inter alia, 

Smiley’s motion to suppress Green’s identification. 

Smiley argued that the identification was blighted by an impermissibly suggestive 

photo array as a result of the elongated appearance of the other men in the four photographs. 

Smiley presented Dr. John C. Brigham, who had testified as an expert in the field of 

eyewitness identification, who opined that, “people presumably would be unlikely” to pick 

a distorted image. Judge Jackson, however, did not find the array to be impermissibly 

suggestive in stating, “it’s not a perfect photographic array, but it’s an adequate 
5

photographic array for purposes of making an identification without impermissibly 

suggesting to the viewer which picture to pick out.” 

After Mr. Duffy’s murder, the State noted its intent to introduce at trial Mr. Duffy’s 

recorded statement to investigators, under Section 10-901 of the Courts and Judicial 

Proceedings Article of the Maryland Code (1974, 2006 Repl. Vol., 2012 Supp.)4

and

 

4

 Section 10-901 of the Courts and Judicial Proceedings Article of the Maryland Code 

provides: 

(a) In general. — During the trial of a criminal case in which the defendant 

is charged with a felonious violation of Title 5 of the Criminal Law Article 

or with the commission of a crime of violence as defined in § 14-101 of the 

Criminal Law Article, a statement as defined in Maryland Rule 5-801(a) is 

not excluded by the hearsay rule if the statement is offered against a party 

that has engaged in, directed, or conspired to commit wrongdoing that was 

intended to and did procure the unavailability of the declarant of the 

statement, as defined in Maryland Rule 5-804. 

(b) Hearing. — Subject to subsection (c) of this section, before admitting a 

statement under this section, the court shall hold a hearing outside the 

presence of the jury at which: 

(1) The Maryland Rules of Evidence are strictly applied; and 

(2) The court finds by clear and convincing evidence that the party against 

whom the statement is offered engaged in, directed, or conspired to commit 

the wrongdoing that procured the unavailability of the declarant.

(c) Exceptions — A statement may not be admitted under this section unless: 

(1) The statement was: 

(i) Given under oath subject to the penalty of perjury at a trial, hearing, 

or other proceeding or in a deposition; 

(ii) Reduced to writing and signed by the declarant; or 

(iii) Recorded in substantially verbatim fashion by stenographic or 

electronic means contemporaneously with the making of the 

statement; and 

(2) As soon as is practicable after the proponent of the statement learns that 

the declarant will be unavailable, the proponent notifies the adverse party of: 

(i) The intention to offer the statement; 

(ii) The particulars of the statement; and 

(continued . . . )
6

Maryland Rule 5-804(b) (2012),

5

 as a result of Smiley’s alleged procurement of Mr. 

Duffy’s death. The State’s notice included a statement that Parker had been charged for 

Mr. Duffy’s murder. The defense objected, although acknowledged that Parker had been 

charged for the murder.

At the pretrial hearing before Judge Leah J. Seaton of the Circuit Court for 

Wicomico County, an inmate testified that, upon hearing of Mr. Duffy’s death, Smiley was 

relieved that Mr. Duffy would not testify at trial and was “jumping up and down” in 

excitement: 

[STATE’S ATTORNEY]: Tell Judge Seaton what the defendant said.

[INMATE]: It was just like, it was in regards to the fact that [Mr. Duffy] 

was, I guess he was an eyewitness or something to whatever he had done or 

whatever, and I guess he was just more or less relieved that person was . . . 

the fact that that person wouldn’t be there to testify against him. 

 

(continued . . . )

(iii) The identity of the witness through whom the statement will be 

offered. 

Md. Code Ann., Cts. & Jud. Proc. § 10-901 (1974, 2006 Repl. Vol., 2012 Supp.). All 

references to Section 10-901 of the Courts and Judicial Proceedings Article of the 

Maryland Code are to the 2012 version of the statute. 

5 Maryland Rule 5-804(b) provides, in relevant part: 

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule 

if the declarant is unavailable as a witness: 

* * * 

(5) Witness unavailable because of party’s wrongdoing. 

* * * 

(B) Criminal causes. In criminal causes in which a witness is 

unavailable because of a party’s wrongdoing, admission of the 

witness’s statement under this exception is governed by Code, Courts 

Article, § 10-901. 

All further references to Maryland Rule 5-804 will reflect the 2012 language of the 

Rule. 
7

[STATE’S ATTORNEY]: Okay. What, if any, actions on the defendant’s 

part did you observe? 

[INMATE]: At first, he was like he, it was like, it was like totally, I guess it 

was like disbelief, and then it was like excitement, and I guess he went 

through a lot of different emotions. 

[STATE’S ATTORNEY]: How did he express excitement?

[INMATE]: One time, it was like he was, I guess he was just excited, I guess, 

like happy.

[STATE’S ATTORNEY]: What was he doing to show that? 

[INMATE]: I guess he was like, he was jumping up and down like he was 

happy or something. 

During the hearing before Judge Seaton, the inmate also testified that Smiley had 

told him that Parker was involved with Mr. Duffy’s murder: 

[SMILEY’S COUNSEL]: Do you remember that [the investigating officer] 

told you that the police thought that Keith Parker murdered Mr. Duffy and 

that Mr. Keith Parker’s nickname was Heathcliff?

[INMATE]: Yeah, after we got talking more about the whole situation after 

[SMILEY’S COUNSEL]: Well, he told you. You didn’t tell him? 

[INMATE]: No, I told him – I told him because, because when we were back 

in there – when we were back in the cell, he was saying something about his 

nephew, Heathcliff. I wanted to know who Heathcliff was and not unless if 

he told me – 

Judge Seaton, during the hearing, also took judicial notice of the case file for the 

murder charge filed against Parker, case number K12-0587, in the Circuit Court for 

Wicomico County, Maryland, which included Parker’s indictment for the first degree 

murder of Mr. Duffy. Judge Seaton found that Smiley had specifically requested that 

Parker prevent Mr. Duffy from appearing at trial, that the inmate’s testimony regarding 

Smiley’s statement and reaction was credible and that Parker took part in Mr. Duffy’s 

murder. Judge Seaton then found, by clear and convincing evidence, that Smiley “engaged 

in, directed or conspired to commit the wrongdoing that procured the unavailability of Mr. 
8

Duffy” and, therefore, concluded that Mr. Duffy’s statement about seeing Smiley shoot 

Green was admissible at trial: 

[THE COURT]: The State’s Notice of Intent to submit the recorded 

statement of Elmer Duffy was opposed by the defendant. Section 10-901 of 

Courts and Judicial Proceedings governs the admissibility of the recorded 

statement. The Court has considered the State’s notice, the defendant’s 

opposition and supplemental filing and oral arguments, admitted exhibits, the 

testimony of [the inmate], and the recorded statement and transcript of that 

conversation which actually reflected the conversation.

Under [Section] 10-901, the Court finds by clear and convincing 

evidence that the defendant engaged in, directed or conspired to commit the 

wrongdoing that procured the unavailability of Mr. Duffy. Mr. Duffy was 

murdered. Keith Parker has been charged with that murder. 

 The Court finds that [the inmate’s] testimony about the defendant’s 

statements and his reaction to the news of Mr. Duffy’s murder to be credible. 

In addition, the Court notes that in the conversation with his mother, 

the defendant wanted to, quote “get Mr. Duffy out of the picture,” end quote. 

He also tells – well, the quote part is “out of the picture”. He also tells his 

mother at the end of the conversation quote, “make sure they take care of 

everything, Mom. I’m talking about, you know what I’m talking about.” 

period end quote. 

 The Court takes judicial notice of the case file in this court, Case 

Number K12-0587 in which the murder charges are pending against Mr. 

Parker. It is not persuaded by counsel’s argument that the State has not 

proven the wrongdoing, nor that the State has failed by clear and convincing 

evidence to establish that the defendant engaged in, directed or conspired to 

commit the wrongdoing that procured the unavailability of Mr. Duffy. 

 During Smiley’s trial, Green testified and identified Smiley as the individual who 

had assaulted him; Mr. Duffy’s recorded statement, as well as its transcript, also were 

admitted. Smiley was convicted of attempted first degree murder, use of a firearm in the 

commission of a crime of violence, three counts of reckless endangerment and the 

possession of a regulated firearm after having been previously convicted of a crime of 

violence; he was sentenced to life imprisonment plus ten years. 
9

In a reported opinion, the Court of Special Appeals affirmed the admission of both 

Green’s extrajudicial identification and Mr. Duffy’s statement. Smiley v. State, 216 Md. 

App. 1, 28, 37, 84 A.3d 190, 205, 211 (2014). Our intermediate appellate court concluded 

that it was not clear error for Judge Jackson to find that the photo array was not 

impermissibly suggestive and that he was within his discretion to admit the identification 

into evidence at trial. Id. at 37, 84 A.3d at 211. The court also held that it was not clear 

error for Judge Seaton to find that Smiley was involved in procuring Mr. Duffy’s 

unavailability, based upon the facts she found connecting Smiley to the murder: 

1) that [Smiley] ardently and insistently sent word to his nephew to get rid of 

Elmer Duffy, 2) that Elmer Duffy was subsequently murdered, 3) that 

[Smiley] jubilantly reacted to the news of the murder, and 4) that nephew 

Heathcliff Parker was, indeed, then charged with that murder. 

Id. at 24, 84 A.3d at 203.6

 We granted Smiley’s Petition for Certiorari to consider the following questions, 

which we have renumbered:

 

6 Smiley’s questions before the Court of Special Appeals were: 

1. Did the lower court err in admitting the recorded pre-trial statement of an 

unavailable witness where the only evidence connecting Mr. Smiley to 

the witness’s unavailability was a proffer that Mr. Smiley’s nephew was 

charged with murdering that witness?

2. Did the lower court err in failing to suppress a pre-trial extrajudicial 

identification of Mr. Smiley where his photograph was one of only two 

in a photographic array which was not digitally altered, and his 

appearance differed from the other non-altered photograph in the array 

and matched the description of the shooter? 

3. Did the lower court err in determining that Mr. Smiley’s proffered expert 

on the reliability of eyewitness testimony would not help the jury in a 

case where the primary evidence of criminal agency were two eyewitness 

identifications? 
10 

1. Did the lower court err in failing to suppress an extrajudicial 

identification of Mr. Smiley where his photograph was one of only two 

in a photographic array which was not visibly altered and his clothing 

matched the shooter’s described attire? 

2. Should Maryland adopt, either as a matter of State constitutional or 

evidentiary law, a standard for evaluating the admissibility of eyewitness 

identifications which better reflects present scientific knowledge 

concerning eyewitness memory?

3. Did the trial court err in admitting the statement of an unavailable witness 

after finding that Mr. Smiley procured the witness’s unavailability at trial 

based on a proffer that Mr. Smiley’s nephew was charged with murdering 

that witness?

Smiley v. State, 437 Md. 637, 89 A.3d 1104 (2014). 

We shall affirm and shall hold that the elongation of the face and torso of four of 

the photographs in the photo array did not render the array impermissibly suggestive. We 

shall also decline to adopt the theories and methodologies promulgated by the New Jersey 

Supreme Court in State v. Henderson, 27 A.3d 872 (N.J. 2011), to review whether 

extrajudicial identifications are suggestive, because we are satisfied with the two-part test 

set out in (Gregory) Jones v. State, 310 Md. 569, 577, 530 A.2d 743, 747 (1987), cert. 

granted, judgment vacated on other grounds, 486 U.S. 1050, 108 S. Ct. 2815, 100 L. Ed. 

2d 916 (1988), conviction aff’d, sentence vacated and remanded, 314 Md. 111, 549 A.2d 

17, for determining the admissibility of an extrajudicial eyewitness identification. We, 

finally, shall hold pursuant to Section 10-901 of the Courts and Judicial Proceedings Article 

of the Maryland Code, and Maryland Rule 5-804(b)(5)(B), that the trial court did not abuse 

its discretion in admitting the statement of Mr. Duffy.

 Smiley, with respect to the first question before us, argues, as he did before the trial 

court and the Court of Special Appeals, that the photo array was impermissibly suggestive, 
11 

because of the elongation of the head and torso in four of the photographs, none of which 

was his. The State asserts, with respect to the first question, as it did before the trial court 

and the Court of Special Appeals, that the elongation did not create an impermissibly 

suggestive photo array. 

 The admissibility of an extrajudicial identification is determined in a two-step 

inquiry. (Gregory) Jones, 310 Md. at 577, 530 A.2d at 747. “The first question is whether 

the identification procedure was impermissibly suggestive.” Id. If the procedure is not 

impermissibly suggestive, then the inquiry ends. If, however, the procedure is determined 

to be impermissibly suggestive, then the second step is triggered, and the court must 

determine “whether, under the totality of circumstances, the identification was reliable.” 

Id. If a prima facie showing is made that the identification was impermissibly suggestive, 

then the burden shifts to the State to show, under a totality of the circumstances, that it was 

reliable. (Kevin) Jones v. State, 395 Md. 97, 111, 909 A.2d 650, 658 (2006). 

 Suggestiveness can arise during the presentation of a photo array when the manner 

itself of presenting the array to the witness or the makeup of the array indicates which 

photograph the witness should identify. See (Gregory) Jones, 310 Md. at 577, 530 A.2d at

747; see also Conyers v. State, 115 Md. App. 114, 121, 691 A.2d 802, 806 (1997), cert. 

denied, 346 Md. 371, 697 A.2d 111 (“The sin is to contaminate the test by slipping the 

answer to the testee.”) (emphasis omitted). 

 In a case in which we concluded that a photo array was not impermissibly 

suggestive, we explained that a photo array “‘to be fair need not be composed of clones.’” 

Bailey v. State, 303 Md. 650, 663, 496 A.2d 665, 671 (1985), quoting Webster v. State, 299 
12 

Md. 581, 620, 474 A.2d 1305, 1325 (1984). In that case, Bailey alleged that the photo 

array shown to the victim was impermissibly suggestive, because the men in four of the six 

photographs did not resemble him. We concluded that the array was not impermissibly 

suggestive, because the mug shots that comprised the array reflected a number of 

similarities, to include: each man was photographed from the same camera angle; each man 

had the same photo card around his neck, the text of which had been blacked out; each 

individual was a young black male; each individual had close-cropped hair; several of the 

men had slight mustaches, though none was bearded; the men wore different styles of 

casual shirts; and none of the individuals had any unusual features. 

 In a subsequent case, Evans v. State, 304 Md. 487, 499 A.2d 1261 (1985), we held 

that the identification procedure was impermissibly suggestive when only a single 

photograph was presented to the witness, under circumstances that were not exigent. In 

Evans, the prosecutor, during a grand jury proceeding, presented a single photograph of 

the suspect, Evans, to the witness: 

“Q. PROSECUTING ATTORNEY: As you were playing games with [the 

accomplice] in the bar, a fellow by the name of Shorty comes in, calls [the 

accomplice], and [the accomplice] and Shorty go outside, is that right? 

“A. [WITNESS]: Right. 

“Q. PROSECUTING ATTORNEY: Now, I show you a Baltimore County 

Police photograph No. 126237. It is a mug shot, and next to that number are 

the numbers 6/08/83, indicating the date. Is this the Shorty that you saw? 

“A. [WITNESS]: That is him. 

“Q. PROSECUTING ATTORNEY: For the record, that is a photograph of 

Vernon Evans, Junior.”

Id. at 497-98, 499 A.2d at 1266. The single photograph procedure, we stated, was 

impermissibly suggestive “under the circumstances shown by [that] record”, because 
13 

“[t]here were no exigent circumstances justifying the presentation of a single photograph 

rather than an appropriate array.” Id. at 498, 499 A.2d at 1267. 

In the instant matter, Agent Beccio presented Green with an array containing six 

photographs, which, as Judge Jackson found, portrayed six African-American males of 

roughly the same age with the same hairstyle, the same facial hair and with the same facial 

expression. With respect to elongation, Judge Jackson also found that, while the pictures 

were not perfectly identical and that four of the faces “appear[ed] to be slightly elongated”, 

they were not “cartoonish” and, even with the elongation, two of those four photographs 

depicted individuals “who have that kind of build.” None of the four elongated photographs 

included that of Smiley, who was depicted in one of the two remaining photographs. 

Faced with a similar, albeit converse, situation of elongation of a photograph, the 

Virginia intermediate appellate court reasoned, in Smith v. Commonwealth, 733 S.E.2d 

683, 688 (Va. Ct. App. 2012), that the elongation of only the suspect’s photograph, but not 

those of the other individuals in the array, was not impermissibly suggestive. The court 

opined that an elongated face did not, intrinsically, “suggest to the victim that the longfaced person was one of the assailants” and, moreover, there was no implication at any 

point in the investigation that a long-faced man was the assailant. Id. at 688. 

Here, the elongation of the four photographs, other than that of Smiley’s 

photograph, did not suggest to Green that Smiley was the perpetrator. The dissimilarity 

related to the elongation of the four photographs and those depicting Smiley and another 

man did not render the photo array impermissibly suggestive. 
14 

As to the second question, Smiley urges, as he did in the lower courts, that Judge 

Jackson, in addressing whether the array was suggestive, should have adopted the theories 

and methodologies suggested by the New Jersey Supreme Court in State v. Henderson, 27 

A.3d 872 (N.J. 2011).7

 The State demurs, asserting that “Maryland trial courts already 

consider” the methodologies suggested by Henderson, because “the suppression court 

screens for suggestiveness – and [whether] the extra-judicial identification process was 

‘unnecessarily (impermissibly) suggestive’”, quoting Webster, 299 Md. at 607, 474 A.2d 

at 1319. The State further asserts that we should not adopt the Henderson theories and

methodologies, because “the studies referred to in Henderson have limited value” and, 

before adoption, any evidence supporting them “should be developed at the trial level”.

In Henderson, a special master was appointed by the New Jersey Supreme Court 

“to evaluate scientific and other evidence about eyewitness identifications.” 27 A.3d at 

877. The special master heard testimony from individuals who were qualified as experts 

in eyewitness identification and received various studies regarding the same, from which 

he made recommendations to the New Jersey Supreme Court with respect to factors that a 

 

7

 Counsel for Smiley, after oral arguments, by letter, directed our attention to two recent 

opinions from the Supreme Judicial Court of Massachusetts, Commonwealth v. Gomes, 22 

N.E.3d 897 (Mass. 2015), and Commonwealth v. Johnson, 22 N.E.3d 155 (Mass. 2015), 

with respect to what has been termed the “transference effect”, which has been defined as 

“mistakenly identifying a person as a crime perpetrator because of a familiarty with that 

person in another context.” Brian L. Cutler & Margaret Bull Kovera, Evaluating 

Eyewitness Identification 47-48 (2010). As this issue was not raised nor considered at the 

trial court level we decline to address it. (Thomas) Jones v. State, 379 Md. 704, 712, 843 

A.2d 778, 783 (2004).
15 

trial court should consider when assessing the suggestibility and reliability of an eyewitness 

identification. Id. at 884-85, 895. Based upon the special master’s report, the court 

promulgated protocols to evaluate eyewitness identifications.

8

 Id. at 896-911. 

Smiley urges adoption of the New Jersey standards for evaluating an eyewitness 

identification, which, he asserts, “reflects present scientific knowledge concerning 

eyewitness memory”. We decline to do so, because this Court, as well as the Court of 

Special Appeals, have consistently reaffirmed application of the procedure in (Gregory) 

Jones for examining challenges to the admissibility of eyewitness identifications. See, e.g., 

(Kevin) Jones, 395 Md. at 109-10, 909 A.2d at 657-58; Thomas v. State, 213 Md. App. 

388, 416-17, 74 A.3d 746, 763-64 (2013), cert. denied, 437 Md. 640, 89 A.3d 1106 (2014); 

 

8 The New Jersey Supreme Court concluded that photo arrays should be presented in such 

a way that the individual presenting the array does not know where the suspect is placed 

within the array. Henderson, 27 A.3d at 896. The court also noted that pre-identification 

instructions should be given that inform the witness that the suspect may or may not be in 

the array. Id. at 897. The court, in addition, opined that the array should be constructed 

with at least five fillers and composed of individuals who resemble the suspect. Id. at 898. 

The court, furthermore, instructed that the presenter of a photo array should avoid giving 

feedback to the witness. Id. at 899. The court also noted that a witness should not view a 

suspect before the identification. Id. at 900-01. The court, finally, cautioned that showups 

are inherently suggestive. Id. at 902-03. 

The court also opined, regarding the reliability of an identification, that a witness’s

stress at the time of the incident can affect the identification. Id. at 904. Reliability, 

according to the court, may also diminish with the presence of a weapon at the scene. Id.

at 904-05. The duration of the incident, continued the court, as well as the distance the 

eyewitness was from the scene and the lighting of the incident may have an impact on the 

reliability of an identification. Id. at 905-06. The court, also, noted that certain 

characteristics, such as the level of intoxication of the witness, the race of the perpetrator 

and whether the perpetrator wore a disguise can affect reliability. Id. at 906-07. The court, 

finally, cautioned that memory may fade over time. Id. at 907. 
16 

Mendes v. State, 146 Md. App. 23, 35-36, 806 A.2d 370, 377-78 (2002); McDuffie v. State, 

115 Md. App. 359, 366-67, 693 A.2d 360, 363-64 (1997). 

In any event, if expert testimony regarding an eyewitness identification is offered, 

its admissibility is governed by Maryland Rule 5-7029

 and Bomas v. State, 412 Md. 392, 

987 A.2d 98 (2010). We stated in Bomas that our standard, the development of which 

predated our adoption of Maryland Rule 5-702 but is substantially similar,10 is “whether 

[the expert’s] testimony will be of real appreciable help to the trier of fact in deciding the 

issue presented”. Id. at 416-17, 987 A.2d at 112 (internal citation and quotation omitted). 

Bomas had urged us, however, to “adopt a standard that favor[ed] the admissibility of 

expert testimony on eyewitness memory identification in criminal cases”, asserting “that 

jurisdictions have trended toward the admissibility of” such evidence and Maryland should 

follow in-kind. Id. at 403, 416, 987 A.2d at 104, 112. We declined to alter our standard, 

but opined that “trial courts should recognize these scientific advances in exercising their 

 

9 Maryland Rule 5-702 provides: 

Expert testimony may be admitted, in the form of an opinion or otherwise, if 

the court determines that the testimony will assist the trier of fact to 

understand the evidence or to determine a fact in issue. In making that 

determination, the court shall determine (1) whether the witness is qualified 

as an expert by knowledge, skill, experience, training, or education, (2) the 

appropriateness of the expert testimony on the particular subject, and (3) 

whether a sufficient factual basis exists to support the expert testimony.

10 Maryland Rule 5-702, along with the rest of Chapter 5 of the Maryland Rules, was 

adopted on December 15, 1993, and became effective July 1, 1994. 21:1 Maryland 

Register P-1 (Jan. 7, 1994). 
17 

discretion whether to admit such expert testimony in a particular case.”11 Id. at 416, 987 

A.2d at 112.

We again shall decline to adopt a new standard regarding the admissibility of an 

extrajudicial eyewitness identification, or for incorporating expert testimony into 

challenges of an eyewitness identification, because our jurisprudence already provides 

suitable means to assay an eyewitness identification. 

We, finally, address Smiley’s contention that the statements given by Mr. Duffy 

identifying Smiley as the shooter just two months prior to Mr. Duffy’s murder were

inadmissible, because the State allegedly did not prove, by clear and convincing evidence, 

that Smiley procured Mr. Duffy’s unavailability, as required by Section 10-901 of the 

Courts and Judicial Proceedings Article of the Maryland Code and Maryland Rule 5-

804(b)(5)(B). Smiley asserts that “[t]here was no evidence of Mr. Parker’s involvement in 

the killing because a mere arrest has no probative value” and, therefore, there was “no 

evidence connecting Mr. Smiley to that killing.” We disagree. 

In the wake of the proliferation of the “Stop Snitching!” video in and around 

Baltimore City in 2004, in which “drug dealers” threatened violence to witnesses and 

 

11 In Bomas, we also noted that “some of the factors of eyewitness identification are not 

beyond the ken of jurors” and, therefore, their consideration does not depend upon expert 

testimony. Bomas, 412 Md. at 416, 987 A.2d at 112. We noted, for example, that “the 

effects of stress or time are generally known to exacerbate memory loss”. Id. Insofar as 

similar factors were promulgated by the New Jersey Supreme Court, our jurisprudence 

already recognizes that certain elements influence eyewitness identifications and may be 

taken into account by the trial judge and jury without the admission of expert testimony.
18 

police informants who testified against drug operatives,12 companion administration bills 

to address the harm were introduced during the 2005 legislative session in the Maryland 

Senate and House of Delegates, identified as Senate Bill 188 and House Bill 248. As 

initially proposed, the bills, inter alia, provided for an exception to the hearsay rule that 

would have permitted the admission of a prior statement given by a victim or witness if, in 

a criminal case, the person against whom the statement was to be introduced intentionally 

caused, or solicited another to procure, the unavailability of the victim or witness.13 The 

proposal also included a notice provision.14

 

Supporters of the bills emphasized that their passage was necessary to discourage 

violent intimidation of witnesses, citing various examples: 

 In November 2002, Baltimore City police Detective Thomas Newman 

was assassinated in retaliation for testifying against the half-brother of 

 

12 The “Stop Snitching!” video “warn[s] that the payback for snitches is a bullet in the 

head.” Witness intimidation, Balt. Sun, Dec. 9, 2004, at 26A, available at

http://articles.baltimoresun.com/2004-12-09/news/0412090090_1_witness-intimidationstop-snitching-drug-trade (last visited Mar. 4, 2015). 

13 The proposed hearsay exception was based upon Federal Rule of Evidence 804 (2005),

which provided, in relevant part: 

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule 

if the declarant is unavailable as a witness: 

* * * 

(6) Forfeiture by Wrongdoing. A statement offered against a party that has 

engaged or acquiesced in wrongdoing that was intended to, and did, procure 

the unavailability of the declarant as a witness.

14 Other provisions in the bills, which were ultimately redacted by the legislature, included 

increasing the penalty for procuring a witness’s unavailability, additional laws 

criminalizing the solicitation of another to cause a witness’s unavailability and removing 

juvenile court jurisdiction over those sixteen years old or older who had been accused of 

wrongdoing related to an unavailable witness.
19 

one of his killers, who was put on trial for wounding Newman in a 2001 

shooting.

 Rickey Prince, a 17-year-old Baltimore County homicide witness, was 

kidnapped and shot in the head by two friends of the murderer in 2003. 

 Tjane C. Marshall, the murderer of a pregnant Columbia woman, told 

witness Rashall Wall that he would be killed if he testified. The victim 

was found shot four times in the face, lying in bed at her Stevens Forest 

apartment in Columbia’s Oakland Mills village in May 2003. 

 In January 2004, four men barged into Anthony Black’s home, pointed 

their guns at his fiancée and 10-year-old son, and threatened to kill them 

if Black testified about their drug ring. 

 On July 14, 2004, Tashiera Peterson, an 11-year-old girl, spent her 

birthday recounting the murder of her father. The 19-year-old man who 

allegedly perpetrated the shooting death of her father is accused of 

ordering a hit on Tashiera and her mother to keep them from testifying. 

 Less than two weeks ago, six men firebombed a home of a community 

activist in Baltimore as retaliation for the woman informing authorities 

about drug trafficking in her neighborhood.

A prosecutor recounted before the Senate Judicial Proceedings Committee and the House 

Judiciary Committee a situation in which an individual awaiting trial had solicited others 

to “hit” eyewitnesses: 

[Adrian “Tony”] Jenkins was the only witness who would identify Andre 

Chavis, his eventual murderer, as the man who pulled the trigger [in another 

crime]. Over the course of the next 13 months, Chavis sent letters to other 

inmates and friends on the outside calling Tony a snitch and telling them to 

hide Tony and not let him come to court. . . . In May 2000, the State was 

forced to dismiss the case because Tony Jenkins did not appear in court and 

could not be found by police detectives. Eighteen months later he was dead, 

executed with one shot to the head by a gun fired by Andre Davis.

 There was one eyewitness to this murder, Noah Rich. Mr. Chavis had 

tried to kill Noah on the same December night he killed Tony, but his gun 

jammed and Noah was able to escape into the darkness and woods of Leakin 

Park. Within weeks of the State’s disclosure of witnesses, Mr. Chavis was 

again writing letters asking for help in silencing Noah Rich. He solicited one 

of his associates to “hit” Noah. 

Numerous witnesses also emphasized the 2002 firebombing of the home of Angela and 

Carnell Dawson, in which their five children and Mrs. Dawson were killed, because Mrs. 
20 

Dawson had repeatedly called police to report drug activity in their neighborhood. See

Jeffrey Gettleman, Fire Kills Mother and Children at Home, N.Y. Times, Oct. 17, 2002, at 

A22, available at http://www.nytimes.com/2002/10/17/us/fire-kills-mother-and-childrenat-home.html (last visited Mar. 4, 2015). Mr. Dawson later succumbed to his injuries from 

the fire. Tom Pelton et. al, Man dies a week after fire at home, Balt. Sun, Oct. 24, 2002, at 

1A, available at http://articles.baltimoresun.com/2002-10-24/news/0210240250_1_ 

dawson-family-dawson-died-coffins (last visited Mar. 4, 2015). 

 Faced with opposition due to the lack of evidentiary standards, the bills were 

amended to provide a clear and convincing standard and to require a hearing. In final 

passage, the hearsay exception required a finding that a party “has engaged in, directed, or 

conspired to commit wrongdoing”:

(A) DURING THE TRIAL OF A CRIMINAL CASE IN WHICH THE 

DEFENDANT IS CHARGED WITH A FELONIOUS VIOLATION OF TITLE 

5 OF THE CRIMINAL LAW ARTICLE OR WITH THE COMMISSION OF A 

CRIME OF VIOLENCE AS DEFINED IN § 14-101 OF THE CRIMINAL 

LAW ARTICLE, A STATEMENT AS DEFINED IN MARYLAND RULE 5-

801(A) IS NOT EXCLUDED BY THE HEARSAY RULE IF THE 

STATEMENT IS OFFERED AGAINST A PARTY THAT HAS ENGAGED IN, 

DIRECTED, OR CONSPIRED TO COMMIT WRONGDOING THAT WAS 

INTENDED TO AND DID PROCURE THE UNAVAILABILITY OF THE 

DECLARANT OF THE STATEMENT, AS DEFINED IN MARYLAND RULE 

5-804. 

(B) SUBJECT TO SUBSECTION (C) OF THIS SECTION, BEFORE 

ADMITTING A STATEMENT UNDER THIS SECTION, THE COURT 

SHALL HOLD A HEARING OUTSIDE THE PRESENCE OF THE JURY AT 

WHICH: 

 (1) THE MARYLAND RULES OF EVIDENCE ARE STRICTLY 

APPLIED; AND

 (2) THE COURT FINDS BY CLEAR AND CONVINCING 

EVIDENCE THAT THE PARTY AGAINST WHOM THE STATEMENT IS 

OFFERED ENGAGED IN, DIRECTED, OR CONSPIRED TO COMMIT 
21 

THE WRONGDOING THAT PROCURED THE UNAVAILABILITY OF THE 

DECLARANT. 

(C) A STATEMENT MAY NOT BE ADMITTED UNDER THIS SECTION 

UNLESS:

 (1) THE STATEMENT WAS: 

(I) GIVEN UNDER OATH SUBJECT TO THE PENALTY 

OF PERJURY AT A TRIAL, HEARING, OR OTHER PROCEEDING OR IN 

A DEPOSITION; 

(II) REDUCED TO WRITING AND SIGNED BY THE 

DECLARANT; OR 

(III) RECORDED IN SUBSTANTIALLY VERBATIM 

FASHION BY STENOGRAPHIC OR ELECTRONIC MEANS 

CONTEMPORANEOUSLY WITH THE MAKING OF THE STATEMENT; 

AND

 (2) AS SOON AS IS PRACTICABLE AFTER THE PROPONENT OF 

THE STATEMENT LEARNS THAT THE DECLARANT WILL BE 

UNAVAILABLE, THE PROPONENT NOTIFIES THE ADVERSE PARTY 

OF:

(I) THE INTENTION TO OFFER THE STATEMENT; 

(II) THE PARTICULARS OF THE STATEMENT; AND 

(III) THE IDENTITY OF THE WITNESS THROUGH 

WHOM THE STATEMENT WILL BE OFFERED. 

2005 Md. Laws 2510-16. The law became codified as Section 10-901 of the Courts and 

Judicial Proceedings Article of the Maryland Code, which became effective October 1, 

2005, (2005 Md. Laws 2516), and our Rule 5-804(b)(5)(B) was promulgated soon 

thereafter.15

 Here, Judge Seaton found that on the morning after Mr. Duffy gave his statement, 

Smiley, “in the conversation with his mother . . . wanted to quote, ‘get Mr. Duffy out of 

the picture,’” and even told his mother “quote, ‘make sure they take care of everything, 

 

15 Maryland Rule 5-804(b)(5)(B) was enacted almost immediately after Section 10-905 

became effective thereby codifying the exception to the hearsay rule, Maryland Rule 5-802 

(“Hearsay rule”). 32 Maryland Register 1880 (Nov. 28, 2005); see also 155th Report of 

the Standing Committee on Rules of Practice and Procedure: Hearings Before the Court of 

Appeals (Nov. 7, 2005) (on file at the Court of Appeals). 
22 

Mom.’” Judge Seaton then found that “Mr. Duffy was murdered” and “that [the inmate’s] 

testimony about the defendant’s statements and his reaction to the news of Mr. Duffy’s 

murder [was] credible”; those statements being that Smiley had told the inmate that Parker 

was involved with the murder and that Smiley was happy to hear of Mr. Duffy’s death. 

Judge Seaton, finally, found that “Keith Parker ha[d] been charged with that murder” by 

taking “judicial notice of the case file in [the Circuit Court for Wicomico County], Case 

Number K12-0587 in which the murder charges [were] pending against Mr. Parker.” 

 Judge Seaton determined that her findings supported the determination that Smiley 

had “engaged in, directed, or conspired to” Mr. Duffy’s murder, based upon the clear and 

convincing standard. We agree. 

 Mr. Duffy’s statement regarding Smiley’s shooting of Green was properly admitted 

based upon Judge Seaton’s findings derived from the evidence presented to her of Smiley’s 

telephone calls seeking that “Heathcliff” prevent Mr. Duffy from attending trial; Mr. 

Duffy’s murder; Smiley’s reaction to hearing about Mr. Duffy’s murder; as well as Keith 

“Heathcliff” Parker’s indictment.16

 Judge Seaton’s determination that the tenets of Section 

 

16 Smiley has challenged that there is nothing in the record connecting Smiley to Mr. 

Duffy’s murder, because there was only a “proffer” of Parker’s arrest. Judge Seaton, 

however, took “judicial notice of the case file in [the Circuit Court for Wicomico County], 

Case Number K12-0587 in which the murder charges [were] pending against Mr. Parker”, 

which included an indictment for Mr. Duffy’s murder. Judge Seaton properly took judicial 

notice of the Circuit Court file, because a court may take notice of its own records. E.g.

King v. State, 400 Md. 419, 427, 929 A.2d 169, 174 (2007) (“The court then granted the 

State’s request that the court take judicial notice of the court file in the underlying criminal 

case”.).
23 

10-901 and Maryland Rule 5-804(b)(5)(B) applied was based on clear and convincing 

evidence after a hearing. As a result, Mr. Duffy’s statement was properly admitted.

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS AFFIRMED. 

COSTS TO BE PAID BY 

PETITIONER.