Reyes v. State ( 2023 )

Andy E. Reyes v. State of Maryland, No. 1426, Sept. Term 2021. Opinion by Albright, J.
Criminal Procedure – Identifications Generally
During a confirmatory identification, a witness is asked to confirm that a suspect is the
person the witness knew from before the crime. In contrast, during a selective
identification, a witness attempts to select and identify an unknown perpetrator after
being presented with at least one suspect.
Criminal Procedure – Confirmatory Identifications – Constitutional Analysis
The difference between confirmatory and selective identifications stems from
constitutional concerns arising from identifying an unknown perpetrator. A confirmatory
identification relies upon a witness’s prior familiarity with a suspect. Thus, in a typical
confirmatory identification, the risks of impermissible suggestion do not apply to nearly
the same extent as in a selective identification.
Criminal Procedure – Confirmatory Identifications – Constitutional Analysis
When a confirmatory identification is supported by sufficient familiarity, the
identification is constitutionally reliable. Police suggestion will be irrelevant, and courts
need not perform a full selective identification analysis.
Criminal Procedure – Confirmatory Identifications – Sufficient Familiarity
Sufficient familiarity means that the witness is so familiar with the defendant from before
the crime that there is little or no risk that police suggestion could lead to a
misidentification. We look to the whole circumstances, including the number of times the
witness viewed the defendant prior to the crime, the duration and nature of the
encounters, the setting, the period of time over which the viewings occurred, the time
elapsed between the crime and the previous viewings, and whether the two had any
conversations, and whether the witness told the police prior to being shown defendant’s
photograph that the witness recognized the perpetrator.
Criminal Procedure – Confirmatory Identifications – Sufficient Familiarity
The bar for sufficient familiarity is not high. Sufficient familiarity is typically present
when the suspect is a family member, former friend, or long-time acquaintance of a
witness, but a prior relationship that is fleeting or distant may not allow a witness to
withstand impermissible suggestion or allay due process concerns.
Circuit Court for Anne Arundel County
Case No. C-02-CR-20-480
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 1426
September Term, 2021
______________________________________
ANDY E. REYES
v.
STATE OF MARYLAND
______________________________________
Reed,
Albright,
Salmon, James P.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Albright, J.
______________________________________
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic. Filed: March 29, 2023
2023-03-29 13:06-04:00
Gregory Hilton, Clerk
* At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of
Maryland to the Appellate Court of Maryland. The name change took effect on December
14, 2022.
Following a jury trial in the Circuit Court for Anne Arundel County, Appellant,
Andy Reyes, was convicted of the attempted first-degree murder of Daniel Bartley and
other related offenses.1 Prior to trial, Mr. Reyes moved to suppress Mr. Bartley’s pretrial
and expected in-court identification of Mr. Reyes as the shooter, arguing that the pretrial
identification was impermissibly suggestive as based on a single-photo “photo array.”
Mr. Reyes also moved to exclude certain video and photographic evidence. The circuit
court denied Mr. Reyes’s motions and, during trial, sustained the State’s objection that
limited the scope of his cross-examination of Mr. Bartley. After determining that several
of the charges merged for the purposes of sentencing, Mr. Reyes was sentenced to,
among other things, 50 years of executed incarceration.2
On appeal, Mr. Reyes presents several issues for our consideration, which we have
consolidated and rephrased into three:3
1
Mr. Reyes was also found guilty of first-degree assault, reckless endangerment,
carrying a loaded handgun, and using a firearm in committing a crime.
2
More specifically, Mr. Reyes received a sixty-year sentence for attempted first-
degree murder, with all but forty suspended. He also received a consecutive ten-year
sentence for use of a firearm in committing a crime of violence, with the first five years
to be served without the possibility of parole.
3
As originally phrased, Appellant presented the following questions:
Whether the Circuit Court abused its discretion [sic] when it
admitted the identification of appellant where the
identification procedure was impermissibly suggestive?
Whether the Circuit Court abused its discretion when it
admitted nest camera video footage, as well as photographic
1. Whether the Circuit Court erred when it declined to suppress Mr.
Bartley’s pretrial identification of Mr. Reyes as the shooter.
2. Whether the Circuit Court abused its discretion when it admitted
surveillance camera footage and still images derived from that
footage.
3. Whether the Circuit Court abused its discretion when it
prohibited cross-examination into Mr. Bartley’s prior conviction
for assaulting Ms. Barahona and an unrelated assault of her
allegedly perpetrated by Mr. Bartley hours before the shooting.
We hold that the circuit court did not err in declining to suppress Mr. Bartley’s
pretrial identification of Mr. Reyes as the shooter. Nor did it abuse its discretion in
admitting surveillance camera footage (and still images derived from that footage) and in
limiting cross-examination of Mr. Bartley. Accordingly, we will affirm the circuit court’s
judgments.
BACKGROUND
A. The Shooting
On December 28, 2019, in the early morning, Mr. Bartley walked to pick up some
of his belongings from his girlfriend, Emily Barahona, at a church close to her house.
stills derived from this video, where the video footage was
not properly authenticated?
Whether the Circuit Court abused its discretion when it
excluded testimony about the history of domestic violence
between Daniel Bartley and Emily Barahona?
Whether the Circuit Court abused its discretion in its
limitation of the cross-examination of Daniel Bartley, where
Appellant's counsel was prohibited from inquiring as to the
altercation between Emily Barahona and Daniel Bartley that
occurred hours before the shooting?
2
When Mr. Bartley arrived, he saw Ms. Barahona's car but did not see her. Mr. Bartley
then noticed an individual walking toward him. The individual stopped approximately ten
feet in front of Mr. Bartley, where, under the glow of a streetlight, Mr. Bartley was able
to recognize the individual as Mr. Reyes, Ms. Barahona’s longtime friend.
This was not the first time Mr. Bartley met Mr. Reyes; the two met through Ms.
Barahona on several occasions, the first being six months prior. As before, Mr. Reyes and
Mr. Bartley spoke to each other. Approximately twelve seconds later, and without
provocation, Mr. Reyes pulled out a gun and aimed it at Mr. Bartley’s head. Mr. Bartley
ducked, and Mr. Reyes started shooting. He shot Mr. Bartley eleven times. Mr. Bartley
fell to the ground and yelled for help.
A nearby resident heard the shots. Peering outside her bedroom window, she saw
Mr. Bartley fall to the ground between a parked car and the curb. She grabbed towels, ran
to Mr. Bartley, pressed the towels to his wounds, and waited for help to arrive.
Separately, in a nearby house where Robert Stevvings lived with his grandparents,
a motion-activated security camera captured the scene of the shooting. After hearing the
gunshots, Mr. Stevvings’s grandmother went outside and saw her neighbors attending to
Mr. Bartley, and then called emergency services. After the police arrived, Mr. Stevvings
told officers that, at around the time that his grandmother heard the shooting, he received
an alert on his phone that the home security camera had begun recording. Mr. Stevvings
later reviewed the footage and emailed it to the police.
B. The In-Hospital Identification
Detective Stephen Davis investigated the shooting and visited Mr. Bartley twice in
3
the hospital. At the first visit, two days after the shooting, Mr. Bartley told Detective
Davis that Mr. Reyes had shot him, though he could not recall Mr. Reyes’s full name. He
also provided additional information about Mr. Reyes, including Mr. Reyes’s known
hangouts, the name of the restaurant Mr. Reyes frequented with Ms. Barahona, and how
he came to know Mr. Reyes.4
[DETECTIVE DAVIS]: Can you tell me what happened? I
know it is hard for you to talk, it is okay. Take your time if
you have to, okay?
***
[MR. BARTLEY]: Emily.
[DETECTIVE DAVIS]: Emily okay.
[MR. BARTLEY]: She didn’t shoot me.
[DETECTIVE DAVIS]: She didn’t shoot you.
[MR. BARTLEY]: Her friend shot me.
[DETECTIVE DAVIS]: Do you know her friend’s name?
[MR. BARTLEY]: Andy - -
[DETECTIVE DAVIS]: What is it?
[MR. BARTLEY]: Andy.
[DETECTIVE DAVIS]: Andy? Does Andy come around the
hood? Does he come around the neighborhood there? You
know his last name?
[MR. BARTLEY]: He lives downtown.
[DETECTIVE DAVIS]: He lives downtown. Andy from
4
Detective Davis's recorded interviews with Mr. Bartley were played at the circuit
court’s suppression hearing. We use excerpts from the recordings and transcripts of the
testimony to supplement the factual background.
4
downtown, Emily’s friend.
[MR. BARTLEY]: Yes, they go to this bar called Mi Cantu.
***
[MR. BARTLEY]: Andy’s parents’ bar.
[DETECTIVE DAVIS]: It is Andy’s parents’ bar. Okay. And
have you met Andy before?
[MR. BARTLEY]: Yeah.
[DETECTIVE DAVIS]: So if I showed you pictures of Andy,
you would know and be able to point him out?
[MR. BARTLEY]: Yeah.
When Detective Davis returned to the hospital a few days later, Mr. Bartley
reiterated that it was Mr. Reyes who shot him and that he could recognize Mr. Reyes in a
photograph.
[MR. BARTLEY]: She texted me and told me to get --- and
that it is --- that is when he shot me. I am --- I was walking
down and I saw somebody walking up and I thought that was
him but I wasn’t certain. I saw him coming. So I ended up
getting shot right by her house because he was walking up
and I was walking down.
***
[DETECTIVE DAVIS]: You said that you were familiar with
Andy and you recognized him when you saw him walk out. I
am going to show you a picture and let me know if it is Andy.
Okay?
[MR. BARTLEY]: That is Andy.
Several months later, in April 2020, Mr. Reyes was charged with attempted first-
degree murder and other related crimes. He then moved to suppress Mr. Bartley’s pretrial
and expected in-trial identification of Mr. Reyes.
5
C. The Suppression Hearing
At the suppression hearing in September 2020, Mr. Reyes sought to suppress the
identifications on the ground that showing Mr. Bartley a single photograph rather than a
true photo array was impermissibly suggestive. The circuit court agreed, and then asked
the State to show that the identification was sufficiently reliable to negate the effect of the
impermissibly suggestive procedure. In response, the State called Detective Davis to
testify.
Detective Davis explained that during his first visit, Mr. Bartley told him that Ms.
Barahona and the man who shot him were “linked together,” so he “searched Emily
Barahona on Facebook” and “found a Facebook post . . . with [] Andy – Andy Reyes and
Ms. Barahona.” Detective Davis further testified that he “snip[ped] a photograph of Mr.
Reyes’s face” from the Facebook photograph and put the information through
Dashboard—Maryland State’s facial recognition software.5 Dashboard’s multi-database
search of the Facebook photograph returned a positive match to a photograph of Mr.
Reyes from the Maryland Motor Vehicle Administration.
The State next called Mr. Bartley as a witness. Mr. Bartley testified that Detective
Davis never told him whom to identify as the shooter. Instead, Mr. Bartley explained that
5
Mr. Reyes timely objected to the introduction of the photograph on the ground
that the State’s use of facial recognition software was not provided in discovery. In
response, the circuit court stated, “the question [] right now is whether or not the
identification is one that can be relied upon, . . . whether [that information] should have
been provided to you in discovery is a different matter.” Mr. Reyes also raised a separate
relevance objection, which the circuit court overruled. Mr. Reyes does not challenge
those rulings on appeal, and we do not address them further.
6
he first met Mr. Reyes six months before the shooting and knew him through Ms.
Barahona—Mr. Bartley’s then-girlfriend. Mr. Bartley reiterated that he identified Mr.
Reyes to Detective Davis as the shooter, not the other way around.
Following a brief cross-examination, the parties rested. The circuit court ruled that
Mr. Bartley’s identification of Mr. Reyes was reliable because, among other things, Mr.
Bartley had the opportunity to view Mr. Reyes at the time of the crime, had met him
several times before, and knew with whom Mr. Reyes associated.
D. The Trial
1. The security camera footage and still images
In April 2021, on the first day of Mr. Reyes’s trial, the State called Mr. Stevvings
to testify about the video surveillance footage captured on his home security camera,
which had recorded the shooting of Mr. Bartley.6 Mr. Stevvings testified that he installed
that camera in the front window of his house, and he provided additional information
about how it worked, including that it was Wi-Fi-enabled and motion-activated, and
sends an alert to his phone when it begins and ends recording. Mr. Stevvings also
testified that the State’s exhibit containing his camera footage accurately depicted the
conditions on the night of the shooting and was the same footage that he emailed to the
police.
The defense objected to the video footage, arguing that the State did not lay a
sufficient foundation for authentication because the video was not a photograph, so “it
6
The security camera is a Nest camera manufactured and sold by Google.
7
ha[d] a whole different set of authentication questions that must be asked.” The circuit
court ultimately overruled the objection and admitted the video, finding that the State laid
a sufficient foundation:
[THE COURT]: Well, I think he has – testified that the video
on the disk is the same video – not the actual physical disk,
but it is the same video that he emailed to the police. So I
think he said that he viewed that and that is the video from his
. . . camera. So I disagree with the Defense.
Later in the trial, the State also introduced photographs into evidence that depicted
the scene of the shooting. These photographs were stills taken from the earlier-admitted
video footage, and Mr. Bartley further testified that the photographs “accurately
depict[ed]” the scene on the night of the shooting. Mr. Reyes objected to the photographs
on the same basis that he had previously objected to the video footage, and the circuit
court overruled the objection.
2. The exclusion of Mr. Bartley’s alleged prior assaults
At the end of the first day of trial, the State moved to exclude Mr. Bartley’s prior
conviction for assaulting Ms. Barahona as well as a second, unreported assault of her that
allegedly occurred several hours before the shooting. The State asserted that the prior
conviction was inadmissible propensity evidence, and the alleged assault was also
inadmissible on cross-examination of Mr. Bartley unless Mr. Reyes took the stand to
argue his actions were in defense of another person. Mr. Reyes argued that the assaults
and Mr. Bartley’s alleged violent nature may or may not be relevant to Mr. Reyes's
defense but may explain why Mr. Bartley would falsely blame Mr. Reyes for shooting
him. Mr. Reyes further argued that the State sought to exclude Mr. Bartley’s allegedly
8
violent history because the State feared that his propensity for violence could generate a
defense of others jury instruction. Yet, Mr. Reyes proffered no evidence in support of
either contention.
After considering the parties’ arguments, the circuit court concluded that neither
the prior conviction nor the alleged assault on Ms. Barahona was relevant because Mr.
Reyes did not claim self-defense or defense of others. Subsequently, the court granted the
State’s motion.
[THE COURT]: Based on the evidence, the Court has heard
thus far and the proffers of counsel, the Court does not find
that Mr. Bartley’s alleged violent character is a pertinent
character trait. Self-defense has not been asserted and the
defense of others would not apply as under the Defendant's
best case scenario, the alleged assault occurred several hours
before this incident. Too much time had lapsed for the
defense of others, nothing indicates anyone was in immediate
or imminent danger of bodily harm.
To the contrary, the allegation is that the assault had already
occurred several hours earlier. I am going to exercise my
discretion in this --- to sustain the State’s objection to the
Defense introducing any evidence regarding these two alleged
assaults on Ms. Barahona by Mr. Bartley. Defendant
indicated that they wished to introduce this evidence
indicating that Mr. Bartley is a very violent person with
repeated interactions with the police. And at this point, I
simply think that that is not relevant, it is not a relevant
character trait.
With permission of the Court, the defense also proffered that Mr. Bartley had
called Ms. Barahona approximately 100 times in the hours prior to the shooting, that he
had arrived at her door, and that Ms. Barahona repeatedly told him to leave her alone. Mr.
Reyes did not introduce any evidence to support that proffer, further explain how the
proffered information was relevant, or at any time request a jury instruction on the issue
9
of defense of others.
STANDARD OF REVIEW
In reviewing the denial of a motion to suppress, we “rely solely upon the record
developed at the suppression hearing[,]” Briscoe v. State, 422 Md. 384, 396 (2011), and
view the evidence and inferences drawn from the record “in the light most favorable to
the prevailing party, in this case, the State[,]” Angulo-Gil v. State, 198 Md. App. 124, 137
(2011). We also “give great deference to a hearing judge’s determination and weighing of
first-level findings of fact [and] will not disturb either the determinations or the weight
given to them, unless they are shown to be clearly erroneous.” Longshore v. State, 399
Md. 486, 498 (2007). “Issues of law—specifically whether a constitutional right has been
violated—receive no deference.” Bean v. State, 240 Md. App. 342, 354 (2019). Instead,
“we apply a de novo standard of review, making our own independent constitutional
appraisal by reviewing the law and applying it to the facts of the case.” Brewer v. State,
220 Md. App. 89, 99 (2014) (cleaned up).
Typically, we review evidentiary rulings for an abuse of discretion.7 See Vigna v.
State, 470 Md. 418, 437 (2020). A court abuses its discretion when it “acts without
reference to any guiding principles, and the ruling under consideration is clearly against
the logic and effect of facts and inferences before the court.” Sibley v. Doe, 227 Md. App.
7Of course, not all evidentiary rulings are subject to an abuse of discretion review.
See, e.g., Williams v. State, 457 Md. 551, 563 (2018) (“When the circuit court determines
whether a piece of evidence is relevant, that is a legal conclusion, which is reviewed
without deference.”); Gordon v. State, 431 Md. 527, 535-36 (2013) (“[H]earsay rulings
are not discretionary.”).
10
645, 658 (2016) (quotation omitted). Thus, we will reverse for an abuse of discretion if
“the trial judge’s determination was both manifestly wrong and substantially injurious.”
Angelakis v. Teimourian, 150 Md. App. 507, 525 (2003) (quotation omitted). Further, the
“exclusion of evidence is a function of the trial court which, on appeal, is traditionally
viewed with great latitude.” Id. at 525 (quotation omitted). Regardless of the purpose of
excluded evidence, in order to challenge the exclusion on appeal, “a party who objects . .
. must make the grounds for a different ruling manifest to the trial court at a time when
the court can consider those grounds and decide whether to make a different ruling.”
Peterson v. State, 444 Md. 105, 124-25 (2015).8
DISCUSSION
A. Mr. Bartley’s Identification Of Mr. Reyes
On appeal, Mr. Reyes argues that the circuit court erred in refusing to suppress his
identification by Mr. Bartley.9 He points out that Mr. Bartley was shown only a single
8
Even during cross-examination, a proponent, when challenged, “must be able to
describe the relevance of, and factual foundation for, a line of questioning. . . . The rules
governing appellate review reflect the same principles.” Peterson, 444 Md. at 125(citation omitted); see also Md. Rule 8-131(a).
9
Mr. Reyes focuses his argument on the pretrial identification rather than the later
identification at trial. We do the same. A trial identification typically presents a weaker
case for suppression because it is subject to the corrective influence of cross-examination.
See State v. Greene, 240 Md. App. 119, 154-55 (2019), aff’d, 469 Md. 156 (2020) (even
if police had influenced a witness’s pretrial identification to some extent, “strong,
forceful, and persuasive cross examination by defense counsel” after an in-trial
identification could at least partly ameliorate that influence in the presence of the jury).
As such, if the circuit court did not err in refusing to suppress the pretrial identification, it
likewise did not err in refusing to suppress the in-trial identification.
11
photograph (of Mr. Reyes) during the police investigation, and the circuit court
determined that this identification procedure was impermissibly suggestive. He then
argues that the circuit court erred in failing to suppress the resulting identification
because, in his view, the record did not support that the identification was otherwise
constitutionally reliable. In response, the State relies upon the same analytical framework
but urges the opposite conclusion: that the identification procedure was not
impermissibly suggestive and, in any event, that the identification was constitutionally
reliable in all the circumstances.
We agree with the circuit court that Mr. Reyes’s motion to suppress should have
been denied. Our analysis, however, is somewhat different. We first distinguish between
a “selective” identification on the one hand and a “confirmatory” identification on the
other. As we will discuss, a confirmatory identification is a different type of procedure
that does not necessarily implicate the constitutional concerns of a selective
identification, nor always demand the same level of analysis. Next, we conclude that the
circuit court did not err in refusing to suppress the confirmatory identification of Mr.
Reyes because it was supported by sufficient familiarity. As such, a more detailed
constitutional analysis is unnecessary, and in any event, would return the same result.
1. The identification of Mr. Reyes was not selective, but confirmatory
Typically, a selective identification occurs when an eyewitness observes an
unknown perpetrator commit a crime and then views suspects in an effort to select and
identify the perpetrator to law enforcement. This type of identification is often made by
the witness as part of a formal procedure, during which the witness “is asked to select the
12
wrongdoer from a line-up of suspects, to select a photograph . . . from a photographic
array, or otherwise to select the wrongdoer from a larger group[.]” State v. Greene, 240
Md. App. 119, 125 (2019), aff’d, 469 Md. 156 (2020).10 It need not, however, involve a
large group of suspects.11 Its defining feature is simply that there is a “selection process”
in which a witness, without any independent experience with the suspect or suspects from
before the crime, attempts to select and identify the perpetrator after being presented with
at least one suspect. See Greene, 240 Md. App. 119, 125 (2019).
In contrast, a confirmatory identification is typically an informal procedure that
relies upon a witness’s prior familiarity with a suspect. During a confirmatory
identification, the witness is not asked to view an unknown suspect (or suspects) and
10
In affirming our decision in Greene, our Supreme Court (then the Court of
Appeals of Maryland) explained that it was also fully embracing this Court’s analysis.
See 469 Md. at 172-73 & n.9.
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Appeals of Maryland to the
Supreme Court of Maryland. The name change took effect on December 14, 2022. See
also Md. Rule 1-101.1(a) (“From and after December 14, 2022, any reference in these
Rules or, in any proceedings before any court of the Maryland Judiciary, any reference in
any statute, ordinance, or regulation applicable in Maryland to the Court of Appeals of
Maryland shall be deemed to refer to the Supreme Court of Maryland[.]”).
11
For example, in Neil, the U.S. Supreme Court described a “showup” procedure
in which, because of difficulties in finding suspects that matched a witness’s description,
police brought a single suspect before the witness for identification. Neil v. Biggers, 409
U.S. 188, 194-95 (1972). The witness did not have any previous experience with the
perpetrator of the crime in question, and the purpose of the showup was to select and
identify that perpetrator to law enforcement. The showup procedure occurred after a
series of other selective identification procedures in which the same witness viewed other
suspects in lineups, showups, and photographs, without identifying any of those other
suspects as the perpetrator. Id. at 194-95.
13
select the wrongdoer. Instead, the witness is merely asked to confirm that a suspect
shown to the witness is the person the witness knew from before the crime. Only a
witness who is familiar with the suspect can make a confirmatory identification. Greene,
469 Md. at 173-74. This type of identification can occur, for example, where “a witness
identifies someone he or she knows from before but cannot identify by name[,]” and
police “display a single photograph to [the] witness in an effort to confirm the identity of
[the] perpetrator.” Greene, 240 Md. App. at 134 (quoting State v. Pressley, 181 A.3d
1017, 1020 (N.J. 2018)).
Often, a confirmatory identification involves a non-eyewitness—that is, a person
who did not witness the crime firsthand. See Greene, 469 Md. at 157-58. As such, several
of our decisions have discussed confirmatory identifications made by non-eyewitnesses.
E.g., Greene, 240 Md. App. at 125 (non-eyewitness identification of a suspect from
viewing video footage after a crime occurred); Myers v. State, 243 Md. App. 154, 175
(2019) (same). Our decisions, however, and the persuasive authorities informing those
decisions, have also recognized that an eyewitness can make a confirmatory identification
as well. See, e.g., Greene, 240 Md. App. at 133 (a single-photograph identification can be
“merely confirmatory, based on the eyewitnesses’ prior familiarity with the
defendant[.]”) (quoting People v. Jenkins, 230 A.D.2d 806, 807 (N.Y. App. Div. 1996)).
Indeed, years before we issued our opinion in Greene, this Court cited jurisprudence from
several different jurisdictions to note exactly that: “when an eyewitness tells an officer
shortly after the crime that he or she knows the defendant and has seen him around[,]”
14
courts “generally hold” that the identification is confirmatory. Simons v. State, 159 Md.
App. 562, 572 n.1 (2004) (citing cases).
Put simply, the difference between selective and confirmatory identifications does
not stem from whether the identification involves an eyewitness (or not); it stems from
constitutional concerns arising from identifying an unknown perpetrator. Recently, in
Greene, we explained these concerns in detail and traced their historical development in
the U.S. Supreme Court. See 240 Md. App. at 135-44. Rather than repeat that discussion
here, we will instead draw from it in discussing the distinction between selective and
confirmatory identifications.
In the typical selective identification, the witness does not know the suspect from
before the crime, and the witness must select and identify the perpetrator based only upon
a memory of that person’s characteristics. That memory stems entirely from the crime
itself, which poses particular risks because the witness might “have obtained only a brief
glimpse of the criminal[] or may have seen [the criminal] under poor conditions.”
Simmons v. United States, 390 U.S. 377, 383 (1968). An impermissibly suggestive police
procedure could influence such a witness into mistakenly identifying an innocent
defendant (who merely resembles the perpetrator), thus infringing upon the defendant’s
due process rights. Id. at 384. Impermissible suggestion operates by “giving the witness a
clue about which [suspect] the police believe the witness should identify[,]” Small v.
State, 464 Md. 68, 88 (2019). Or, put differently, by “contaminat[ing] the test by slipping
the answer to the testee.” Conyers v. State, 115 Md. App. 114, 121 (1997) (emphasis
omitted).
15
Particularly when a witness has only a weak memory of the perpetrator,
impermissible suggestion may even influence the witness’s memory itself—that is, the
witness could “retain in his memory the image of the photograph [shown by police]
rather than of the person actually seen[.]”Simmons, 390 U.S. at 383-84; see also Manson
v. Brathwaite, 432 U.S. 98, 112 (1977) (“Usually the witness must testify about an
encounter with a total stranger under circumstances of emergency or emotional stress.
The witness[’s] recollection of the stranger can be distorted easily by the circumstances
or by later actions of the police.”).12
The U.S. Supreme Court has acknowledged these risks, while at the same time
recognizing that there are “serious drawbacks” to suppressing all identifications
involving impermissible suggestion. Manson, 432 U.S. at 112. Specifically, such an
exclusionary approach would “den[y] the trier reliable evidence, it may result, on
occasion, in the guilty going free. . . . [and it] may make error by the trial judge more
likely[.]” Id. The Supreme Court thus adopted constitutional “reliability” as the ultimate
criterion, see id. at 114, a criterion that is satisfied so long as any impermissible
suggestion does not “give rise to a very substantial likelihood of irreparable
12
There are other risks as well, particularly in the context of violent crime. In such
a case, the “victim’s understandable outrage may excite vengeful or spiteful motives.”
United States v. Wade, 388 U.S. 218, 230 (1967). That is, a witness who is also a victim
could adopt the motive that someone must answer for the crime and select the person
who appears to be the subject of the police investigation.
16
misidentification[,]”13 see Simmons, 390 U.S. at 384.
Accordingly, the constitutional due process analysis proceeds in two steps. First, a
court must assess whether an impermissibly suggestive procedure, arranged by a state
actor, procured the identification. See Bean, 240 Md. App. at 345 (citing Perry v. New
Hampshire, 565 U.S. 228, 248 (2012)). Second, the court must determine whether,
because of that impermissible suggestion, the identification is not constitutionally
“reliable”—i.e., whether the identification presents “a very substantial likelihood of
irreparable misidentification.”14 See Manson, 432 U.S. at 110, 114; Simmons, 390 U.S. at
13
The U.S. Supreme Court has clarified that “reliability” in this context does not
refer to factual reliability. Manson, 432 U.S. at 112 (identifications need only be
supported by certain “aspects of reliability” to reach a jury); see also Perry v. New
Hampshire, 565 U.S. 228, 245 (2012) (“The fallibility of eyewitness evidence does not,
without the taint of improper state conduct, warrant . . . a trial court to screen the
evidence for reliability . . . . the jury, not the judge, traditionally determines the reliability
of evidence.”). As such, unless there is a very substantial likelihood of irreparable
misidentification (caused by impermissible suggestion), it is the factfinder’s
responsibility to determine how reliable, in a factual sense, the identification is under the
circumstances, and what weight to give it.
14
At suppression hearings in Maryland, the parties have the following burdens of
proof as the analysis proceeds. “First, the defendant bears the burden of demonstrating
‘some unnecessary suggestiveness in the procedures employed by police.’” Bean, 240
Md. App. at 355 (quoting Thomas v. State, 213 Md. App. 388 (2013)). Next, “[i]f the
procedure is impermissibly suggestive, . . . the burden shifts to the State to prove, by
clear and convincing evidence, that the independent reliability in the identification
outweighs the corrupting effect of the suggestive procedure.” Bean, 240 Md. App. at 355
(quotations omitted).
Nevertheless, we have explained that the two-step analysis is skewed heavily in
favor of admission: the U.S. Supreme Court has suppressed “an impermissibly suggestive
identification on only a single occasion.” See Greene, 240 Md. App. at 140-41 (citing
Foster v. California, 394 U.S. 440, 443 (1969)).
17
384. The Supreme Court also articulated several factors to aid in assessing reliability.
Each of these factors arises in the usual context of a selective identification, in which a
witness must select and identify a stranger after a crime:
The factors to be considered . . . . include the opportunity of
the witness to view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of his prior
description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the
crime and the confrontation. Against these factors is to be
weighed the corrupting effect of the suggestive identification
itself.
Manson, 432 U.S. at 114 (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
In sum, the Supreme Court’s constitutional due process analysis addresses the
particular risks that impermissible suggestion can create during the identification of an
unknown perpetrator after a crime. That analysis accommodates several different
concerns, including protecting the due process rights of the defendant, deterring police
misconduct, and allowing the factfinder to hear and weigh identification evidence that is
reliable enough from a constitutional perspective. See Greene, 240 Md. App. at 139 (“A
jury, the Supreme Court pointed out, is perfectly capable of weighing the pluses and
minuses of [an impermissibly suggestive] identification. That is why mere suggestiveness
in and of itself does not call for exclusion.”).
In a typical confirmatory identification, however, the risks from impermissible
suggestion do not apply to nearly the same extent. See Greene, 240 Md. App. at 130.
Because a confirmatory identification witness knows the perpetrator from before the
crime, his is not the “recollection of [a] stranger [that] can be distorted easily by the
18
circumstances or by later actions of the police.” See Manson, 432 U.S. at 112 (emphasis
added). For example, in the eyewitness context, a confirmatory identification eyewitness
need only notice that the perpetrator is someone the witness knows, remember that fact
long enough to inform police, and perhaps confirm for officers that they are pursuing the
correct person (particularly if the eyewitness does not remember much background
information about the perpetrator, like the person’s full name). In contrast, the selective
identification eyewitness must—while a crime is being committed—take in as many
descriptive details as possible about a stranger; remember each of those details long
enough, and accurately enough, to perform a selective procedure; and then correctly
identify the stranger who fits those details (without mistakenly identifying a different
stranger who possesses similar characteristics). By its nature then, a selective
identification is generally more challenging, tenuous, and vulnerable to suggestion than a
confirmatory identification.
Considering those realities, and given all the circumstances here, we conclude that
the police employed a confirmatory identification procedure in showing Mr. Reyes’s
photograph to Mr. Bartley. Although Mr. Bartley was indeed an eyewitness to (and
victim of) a crime, he did not perform any selection. Rather than perceiving a stranger
and attempting to memorize descriptive details, Mr. Bartley simply recognized Mr. Reyes
from before the crime. He then told police as much. Thus, when Mr. Bartley was shown
Mr. Reyes’s photograph, it was not to help Mr. Bartley select and identify the
perpetrator—there was no selection necessary. Showing the photograph was also not a
suggestion by police about the identity of the perpetrator, because Mr. Bartley had
19
already told police that “Andy” had shot him. Instead, the photograph was shown as part
of a confirmatory process in which police sought to ensure that they were investigating
the correct individual: the person Mr. Bartley remembered from before the crime and had
already (verbally) identified.
2. The circuit court did not err in declining to suppress the confirmatory
identification because Mr. Bartley was sufficiently familiar with Mr. Reyes
that the identification did not implicate due process concerns
It is not enough to conclude that police here employed a confirmatory procedure.
We must also assess whether the resulting confirmatory identification “implicat[ed] due
process concerns.” Greene, 469 Md. at 174. That is, we must assess whether “as a matter
of law, the witness is so familiar with the defendant that there is little or no risk that
police suggestion could lead to a misidentification.”15 Greene, 240 Md. App. at 131
(quoting People v. Rodriguez, 593 N.E.2d 268, 272 (N.Y. 1992)) (cleaned up); see also
Simons, 159 Md. App. at 572 n.1 (the confirmatory identification distinction “is premised
on . . . familiarity between the witness and the suspect,” which can protect against the
effects of any “police suggestion”). In essence, if a confirmatory identification is
supported by sufficient familiarity, then it does not implicate due process concerns; it is
15
In analyzing confirmatory identifications, some opinions use the phrase
“personal knowledge” to refer to the witness’s degree of experience with a suspect from
before the crime. See e.g., People v. Jones, 175 N.Y.S.3d 413, 420 (N.Y. Sup. Ct. 2022)
(Weston, J., dissenting). For clarity, however, we will refer instead to the amount of
“familiarity” needed to avoid implicating due process concerns. As we will explain in
more detail, a minimal showing of “personal knowledge” under Maryland’s rules of
evidence, see Md. Rule 5-602, will not necessarily combat the effects of impermissible
suggestion by the police.
20
automatically considered constitutionally reliable. See Greene, 240 Md. App. at 131. If,
however, a confirmatory identification is not supported by sufficient familiarity, then it
must be analyzed like a selective identification—by assessing impermissible
suggestiveness and ultimate constitutional reliability. See id.
In describing that distinction and examining its contours, Maryland’s appellate
courts have often looked to the decisions of other state courts, particularly the decisions
of New York’s courts. See, e.g., Greene, 469 Md. 172-74 & nn. 9-11 (citing cases);
Greene, 240 Md. App. at 131-34 (same); Simons, 159 Md. App. at 572 n.1 (same); see
also Myers, 243 Md. App. at 165 (explaining that we have “follow[ed] the lead” of New
York’s courts in “recognizing the analytic distinction between selective identification
issues and confirmatory identification issues”). From those persuasive authorities and our
own precedents, we distill some basic principles.
To assess whether there is sufficient familiarity to support a confirmatory
identification, we look to the whole circumstances. That is, we may consider (among
other things) the witness’s opportunity to view and interact with the suspect on prior
occasions before the crime, as well as the witness’s behavior after the crime that might
shed light on the witness’s prior familiarity with the suspect:
[T]he court might consider . . . the number of times [the
witness] viewed defendant prior to the crime, the duration and
nature of the encounters, the setting, the period of time over
which the viewings occurred, the time elapsed between the
crime and the previous viewings, and whether the two had
any conversations. Whether [the witness] told the police prior
to being shown defendant’s photograph that he recognized the
[perpetrator] might also be relevant.
21
Rodriguez, 593 N.E.2d at 272.
There will typically be sufficient familiarity where the suspect is “a family
member, former friend or long-time acquaintance of a witness[.]” Greene, 240 Md. App.
at 132 (quoting People v. Collins, 456 N.E.2d 1188, 1191 (N.Y. 1983)). This is because a
sufficient “independent source of identification trumps any suggestive taint that officers
subsequently use while having the eyewitness identify the defendant at the station
through photos or lineups.” Simons, 159 Md. App. at 572 n.1 (citing cases). Similarly, a
prior relationship that “is fleeting or distant[,]” may not allow a witness to withstand
impermissible suggestion or allay due process concerns.16 See Rodriguez, 593 N.E.2d at
272 (quotation omitted); see also Simons, 159 Md. App. at 572 n.1 (noting that the
confirmatory identification distinction “clearly does not apply when the familiarity
emanates from a brief encounter.”) (quoting People v. Yara, No. 9479/00, 2002 WL
31627019, at *4 (N.Y. Sup. Ct. Nov. 6, 2002)).
Ultimately, however, the bar for sufficient familiarity is not high. For example,
sufficient familiarity has been found where a witness only knew the suspects at issue for
16
We emphasize that the focus in this analysis is on withstanding a hypothetical
suggestion by police—not any cajoling, browbeating, or other pressure placed upon a
witness. Such pressure can be addressed in other ways that are not relevant here. See
Greene, 240 Md. App. at 151-52 (“To do something impermissibly suggestive is not to
pressure or to browbeat a witness to make an identification but only to feed the witness
clues as to which identification to make.”) (quoting Conyers, 115 Md. App. at 121
(emphasis omitted). A confirmatory identification need only be supported by enough
familiarity that there is little risk that a police suggestion would change the identification.
It is irrelevant whether the witness held firm (or would be likely to hold firm) under
pressure.
22
one month and may not have known their names. See People v. Tas, 415 N.E.2d 967,
967-68 (N.Y. 1980) (witness and suspects had been fellow inmates in the same tier of
cells). Sufficient familiarity has also been found in a variety of other situations. See, e.g.,
Greene, 240 Md. App. at 124-25 (witness and suspect had been in a romantic relationship
for five years that ended less than a year before the identification occurred); People v.
Ross, 603 N.Y.S.2d 652, 655 (N.Y. Sup. Ct. 1993) (witness knew suspect for
approximately three years or longer before the crime, had spoken to him on several
occasions, knew his name, and told police that he recognized the suspect before any
identification procedure had occurred). Indeed, this Court has noted that there is generally
sufficient familiarity “when an eyewitness tells an officer shortly after the crime that he
or she knows the [perpetrator] and has seen him around[.]” Simons, 159 Md. App. at 572
n.1 (citing cases).
Decisions in which a court has determined that there was insufficient familiarity,
by contrast, are rare. Nonetheless, at least one court has concluded that the prosecution
failed to present sufficient evidence of familiarity at a hearing. See People v. Bernhard,
118 A.D.2d 348, 348 (N.Y. App. Div. 1992) (insufficient evidence of familiarity where
the only evidence was nonspecific testimony from police officers that the witness said
that he “knew defendant from the neighborhood,” without more).17
17
Additionally, other cases have been remanded for further proceedings when
familiarity was unclear and had not been adequately tested through cross-examination at
a hearing. See, e.g., Rodriguez 593 N.E.2d at 270-72 (remanding to allow further
examination into familiarity where a witness had allegedly seen a suspect approximately
50 times as a customer in a grocery store where the witness worked, but where full cross
23
Bearing those principles and decisional guideposts in mind, we now turn to the
facts here, taking the evidence at the suppression hearing in the light most favorable to
the prevailing party. Mr. Bartley knew Mr. Reyes for approximately six months before
the crime occurred. During that time, he was able to observe Mr. Reyes several times and
in a variety of settings, including at Ms. Barahona’s house and at a restaurant. Mr.
Bartley had enough experience with Mr. Reyes to recognize his voice and to identify him
from a photograph. Moreover, Mr. Bartley knew that Mr. Reyes’s first name was Andy,
and he was able to tell the police after the crime that he knew “Andy” had shot him. He
was also able to provide further information, including a restaurant frequented by Mr.
Reyes and where the police might obtain Mr. Reyes’s photograph—all before the police
had any basis to suggest a person who might have committed the crime. This further
speaks to Mr. Bartley’s familiarity with Mr. Reyes.18
examination of familiarity had not been allowed); People v. Williamson, 588 N.E.2d 68,
69 (N.Y. 1991) (remanding to allow further examination into familiarity where a witness
had previously seen the suspect approximately 10 times in the bodega where she worked,
and about 20 times in the neighborhood where they lived, but where a hearing was not
held to determine familiarity).
18
Mr. Bartley also had several seconds before the shooting to have a brief
conversation with Mr. Reyes under the streetlight. Of course, the quality of a witness’s
opportunity to observe the perpetrator commit the crime is usually irrelevant in
determining whether a confirmatory identification is supported by sufficient familiarity.
See Greene 240 Md. App. at 125-26, 151 (explaining that a non-eyewitness’s lack of
complete certainty in an identification, particularly considering the poor quality of a
video showing the perpetrator commit the crime, goes to the weight of the witness’s
identification, not issues of suppression; “[w]eight, of course, is classic grist for the jury
mill”). Here, however, the last-minute interaction between Mr. Bartley and Mr. Reyes
supports sufficient familiarity because it was yet another opportunity for Mr. Bartley to
observe Mr. Reyes (and to hear Mr. Reyes’s voice) before the crime occurred.
24
Indeed, the police only became aware of Mr. Reyes at the urging of Mr. Bartley
himself. This was because of Mr. Bartley’s independent identification of the shooter,
based upon prior familiarity. The purpose of showing Mr. Bartley a photograph of Mr.
Reyes was also not to select a suspect; it was simply to confirm to police that they were
pursuing the correct suspect Mr. Bartley had independently identified. We perceive no
clear error in the circuit court’s factual findings. And given these findings, Mr. Bartley’s
familiarity with Mr. Reyes was legally sufficient to resolve any due process concerns
stemming from impermissible suggestion. That is, as a matter of law, Mr. Bartley was so
familiar with Mr. Reyes that there was little or no risk that police suggestion could lead to
a misidentification.
Having so held, we need not address the circuit court’s additional conclusion that
it was impermissibly suggestive to display a single photograph of Mr. Reyes to Mr.
Bartley, without any other photographs as part of an array. After reviewing the evidence
at the suppression hearing, the circuit court found that Mr. Bartley knew Mr. Reyes
before the shooting. Accordingly, the circuit court held that Mr. Bartley’s identification
of Mr. Reyes was constitutionally reliable. We agree with that ultimate holding. We also
note that a confirmatory identification supported by sufficient familiarity (as it was here)
Nonetheless, we emphasize that the inquiry at a suppression hearing is limited to (1)
whether the confirmatory identification was supported by sufficient familiarity, and if
not, then (2) whether the identification should nonetheless be admitted as a selective
identification. Other issues are for the jury, including the ultimate weight to be given to
the identification itself, as well as the witness’s credibility and reliability with respect to
the identification (rather than the witness’s prior familiarity with the suspect).
25
will always be constitutionally reliable, because sufficient familiarity counters the effects
of impermissible suggestion. That is part of the justification for distinguishing between
confirmatory and selective identifications in the due process analysis. And it is also why
police suggestion is irrelevant when a confirmatory identification witness is sufficiently
familiar with a suspect.19 See Myers, 243 Md. App. at 165 (“[Notwithstanding] the
analytic distinction between selective identification issues and confirmatory identification
issues, the controlling criterion remain[s] the reliability of the confirmatory
identification.”). Even though the circuit court went further than necessary, it was correct
to deny Mr. Reyes’s motion to suppress his identification by Mr. Bartley.
B. The Evidentiary Issues
1. The circuit court did not abuse its discretion when it admitted photographic
evidence captured on a home security camera
Mr. Reyes next contends the circuit court erred when it admitted video
surveillance footage of the shooting and photographic stills derived from the footage
captured on Mr. Stevvings’s home security camera. He asserts that additional testimony
19
We explained as much in Greene. After holding that the identification at issue
was confirmatory and did not implicate due process concerns, we also performed a
separate selective identification analysis to show how that identification satisfied due
process requirements. See 240 Md. App. at 145-55. And in affirming our decision, the
Supreme Court of Maryland did the same. See 469 Md. at 173 n.9 (explaining that,
because of the witness’s longstanding familiarity with the suspect, “even if one were to
assume that . . . [police] conduct was impermissibly suggestive, those assumptions would
not require suppression . . . . The identification . . . would survive at the second, ultimate
step of the [constitutional] analysis because the identification was reliable”) (cleaned up).
As such, we reiterate that when a confirmatory identification is supported by sufficient
familiarity, courts need not perform a full selective identification analysis.
26
was necessary to properly authenticate this evidence, including testimony as to the make
and model of the camera, how many times the camera activated on the night of the
shooting, how long the camera records once activated, whether the camera was in need of
maintenance, and whether the video footage was modified to send it via email. Therefore,
he argues, testimony supporting the video footage did not satisfy the applicable
authentication requirements. We disagree.
The process of authentication refers to “laying a foundation” to admit
“nontestimonial evidence [such] as documents and objects” sufficient to establish “a
connection between the evidence offered and the relevant facts of the case.” Jackson v.
State, 460 Md. 107, 115-16 (2018) (citation omitted). The standard for admissibility is
low: the court “need not find that the evidence is necessarily what the proponent claims,
but only that there is sufficient evidence that the jury ultimately might do so.” Id.(citations omitted) (emphasis in the original). A “videotape is considered a photograph
for admissibility purposes[,]” and both videotapes and photographs are “subject to the
same general rules of admissibility[.]” Washington v. State, 406 Md. 642, 651 (2008). As
such, all photographic evidence, including video evidence, may be authenticated under
several theories, including the “pictorial testimony” theory and the “silent witness”
theory. Id. at 652; see also Md. Rule 5-901(b)(4) & (9) (setting forth examples of
permitted authentication methods, including, respectively, “[c]ircumstantial evidence . . .
that the offered evidence is what it is claimed to be” and “[e]vidence describing a process
or system used to produce the proffered exhibit or testimony and showing that the process
or system produces an accurate result”).
27
Under the “pictorial testimony” theory, photographic evidence is admissible “to
illustrate testimony of a witness when that witness testifies from first-hand knowledge
that the [evidence] fairly and accurately represents the scene or object it purports to
depict as it existed at the relevant time.” Washington, 406 Md. at 652; see also Md. Rule
5-901(b)(4). This theory allows for authentication of the evidence through testimony that
demonstrates the witness’s personal knowledge of what is depicted.
If, however, photographic evidence is recorded on equipment that operates
automatically, it may be authenticated under the “silent witness” theory instead. Under
that theory, photographic evidence operates “as a mute or silent independent
photographic witness” that speaks with its own probative effect. Washington, 406 Md. at
652-53. Thus, authenticating video surveillance footage under the “silent witness” theory
focuses more on “assuring the accuracy of the process producing it[.]” Id. at 653(quotation omitted); see also Md. Rule 5-901(b)(9). Testimony under this theory may
include the “type of equipment or camera used, its general reliability, the quality of the
recorded product, the process by which it was focused, or the general reliability of the
entire system.” Jackson, 460 Md. at 117 (citation omitted).
Here, Mr. Stevvings identified the camera that recorded the video footage as a Wi-
Fi-enabled home security camera that he had installed in the front window of the house
he shared with his grandparents. He further testified to the “general reliability” of the
camera and explained how the camera would send an alert to his phone when it began
recording. He said that he received such an alert the night of the shooting when the
camera recorded the movements of Mr. Bartley and Mr. Reyes. To be sure, Mr. Stevvings
28
did not testify, among other things, to the maintenance schedule of his camera, its precise
make and model, or its exact recording duration. Nonetheless, there was still sufficient
evidence for the jury to conclude that the footage was what the State claimed it to be,
particularly considering that Mr. Stevvings testified to the camera’s reliability, its process
for automatically recording footage and sending alerts, and his receipt of an alert on the
night of the shooting. We hold that Mr. Stevvings’s testimony about the footage provided
an “adequate foundation assuring the accuracy of the process producing it,” and as such,
the evidence was properly “received as a so-called silent witness[.]” Washington, 406
Md. at 653 (quotation omitted).
As to the photographic stills derived from that video footage, our analysis is the
same. On appeal, Mr. Reyes raises the issue of authentication as to both the video
surveillance and photographic stills, but he focuses predominantly on the video footage
(and on Mr. Stevvings’s testimony supporting that footage). Likewise, Mr. Reyes’s
objection at trial to the photographic stills was entirely predicated on, and derived from,
his earlier objection to the video; he did not raise a different objection to the stills.20 For
20
In full, Mr. Reyes explained his objection to the photographic stills as follows:
[COUNSEL FOR MR. REYES]: Thank you, Your Honor.
For the purpose of the record and to be clear . . . I objected
yesterday to the admission of the surveillance video and I
argued that it was not properly authenticated. These pictures
are stills of the same video. So the same objection applies in
terms of - - I would assert that if the video had not been
admitted, then the stills also would not have been admitted for
the same reason . . . I have to object to the admission of
evidence that is derived from evidence that I have already
29
those reasons, and because photographs and videos are generally subject to the same
authentication analysis, we further hold that Mr. Stevvings’s testimony provided a
sufficient foundation for authenticating the photographic stills under the “silent witness”
theory. See also Washington v. State, 406 Md. at 653-55 (“Authentication of a
photograph does not require testimony of the person who took the photograph.”).21
2. The circuit court did not abuse its discretion when it limited certain cross-
examination of Mr. Bartley
Mr. Reyes’s final contention is that the circuit court erred by limiting his cross-
examination of Mr. Bartley. Specifically, Mr. Reyes asserts that he should have been
allowed to explore Mr. Bartley’s history of domestic violence toward Ms. Barahona,
including a second-degree assault conviction, an alleged altercation, alleged threats to
Ms. Barahona, and a request by Ms. Barahona that Mr. Bartley not visit her home. Mr.
Reyes also asserts that he should have been allowed to explore several “inconsistencies”
related to Mr. Bartley’s testimony. These, he contends, include that Mr. Bartley provided
previously objected to and the [court] overruled my objection.
And again . . . the State failed to lay the proper foundation for
authentication. Thank you.
21
Mr. Stevvings’s grandmother further testified that the security camera had been
installed on the house that she shared with Mr. Stevvings, and that it was installed
approximately two years before the shooting. Although her testimony did not add much
information about the camera, it was consistent with Mr. Stevvings’s testimony and
further supports that the camera was installed before the night of the shooting. Thus,
because we hold that the photographic evidence at issue here was properly authenticated
under the “silent witness” theory, we do not reach the State’s alternative argument that
Mr. Bartley’s testimony was sufficient to authenticate the photographic evidence under
the “pictorial testimony” theory.
30
an incorrect phone password to Detective Davis and that Mr. Bartley had previously
stated that he was meeting Ms. Barahona to buy marijuana.
Mr. Reyes raises several arguments in support of those desired lines of
questioning, asserting that the questioning was necessary to generate a defense of others
instruction, to rebut the State’s suggestion that Mr. Bartley was a “peaceful” victim, and
to suggest a motive for Mr. Bartley to falsely accuse Mr. Reyes. As to the alleged
inconsistencies, he also argues more broadly that he should have been allowed to put
inconsistencies related to Mr. Bartley’s testimony before the jury and to explore topics
that were put at issue by the State on Mr. Bartley’s direct examination. We disagree,
however, that the circuit court abused its discretion in how it limited Mr. Bartley’s cross-
examination.
“Evidence admitted at trial must be relevant, and its danger of unfair prejudice
may not substantially outweigh its probative value.” Williams v. State, 215 Md. App. 523,
560 (2021) (citing Md. Rules 5-402 & 5-403). Further, even if relevant, character
evidence is generally “not admissible to prove that the person acted in accordance with
the character or trait on a particular occasion.” Md. Rule 5-404(a)(1). Although an
accused may offer evidence of the victim’s “pertinent trait of character[,]” Md. Rule 5-
404(a)(2)(B), how such character evidence is admitted depends on its importance. Where
the trait is “an essential element of a charge, claim, or defense[,]” the accused may
attempt to prove the trait by offering proof of reputation, opinion, or relevant specific
instances of conduct. See Md. Rule 5-405.
Additionally, an opponent may render otherwise irrelevant evidence, including
31
specific instances of conduct, relevant by “opening the door” to it. This can occur when
“competent evidence which was previously irrelevant is now relevant through the
opponent’s admission of other evidence on the same issue.” Clark v. State, 332 Md. 77,
85 (1993). This doctrine is “based on principles of fairness and serves to balance any
unfair prejudice one party may have suffered. . . .[by] introduc[ing] otherwise
inadmissible evidence [] in response to evidence put forth by the opposing side.” State v.
Robertson, 463 Md. 342, 351-52 (2019) (cleaned up); see also id. at 360 (defense
counsel’s use of the term “any” expanded the scope of questioning, opening the door for
the State “to introduce evidence to rebut the image of [the defendant] as an upstanding
individual who had never been in any trouble”) (citing Md. Rules 5-404 & 5-608).
Evidence, including specific instances of conduct, may also be relevant for
impeachment. See Md. Rule 5-611(b) (cross-examination “should be limited to . . . the
direct examination and matters affecting the credibility of the witness”). Maryland Rule
5-616 provides a non-exhaustive list of ways to impeach a witness, either by inquiry of
the witness himself (“intrinsic impeachment” per Rule 5-616(a)) or by admission of
“extrinsic impeaching evidence” per Rule 5-616(b). For the former, a witness may be
questioned about prior conduct not resulting in a conviction or questions designed to
prove that the witness “has a motive to testify falsely[,]” among other things. See Md.
Rule 5-616(a)(4) & (6).
To be sure, to ensure the defendant’s right of confrontation, the defense must be
given “wide latitude to cross-examine a witness as to bias or prejudices.” Martinez v.
State, 416 Md. 418, 428 (2010). But the right to cross examination is not without limit.
32
Questions about a witness’s potential bias or prejudice may be prohibited “if (1) there is
no factual foundation for such an inquiry in the presence of the jury; or (2) the probative
value of such an inquiry is substantially outweighed by the danger of undue prejudice or
confusion.” Calloway v. State, 414 Md. 616, 638 (2010) (cleaned up). “Otherwise, the
inquiry can reduce itself to discussion of collateral matters which will obscure the issue
and lead to the fact finder’s confusion.” Pantazes v. State, 376 Md. 661, 680-681 (2003)
(quotations omitted). As such, “[w]hen a defendant wants to cross-examine a State’s
witness to show bias or motive, ‘the crux of the inquiry insofar as relevance is concerned,
is the witness’s state of mind.’” Martinez v. State, 416 Md. at 431 (2010) (quoting
Smallwood v. State, 320 Md. 300, 309 (1990)). A witness’s motivation to testify falsely
can be shown by circumstantial evidence, including, for example, evidence that the
witness is testifying in exchange for leniency, early release from custody, or the State’s
decision to dismiss or forego charges. See Manchame-Guerra v. State, 457 Md. 300, 316-
17 (2018) (citing cases); Calloway v. State, 414 Md. at 638.
Bearing these principles in mind, we now turn to the facts here. Regardless of
whether Mr. Reyes sought to question Mr. Bartley about his history of domestic violence
against Ms. Barahona to secure a defense of others instruction, to rebut the State’s
characterization of Mr. Bartley as a “peaceful” victim, or simply to impeach Mr. Bartley
and suggest a motive for him to lie, we see no avenue for appellate relief. We explain.
As to Mr. Reyes’s first argument, concerning a defense of others instruction, from
our review of the record, there appears to be no evidence that Mr. Reyes actually believed
that Ms. Barahona was in “immediate” or “imminent” danger from Mr. Bartley at the
33
time of the shooting. Nor could there have been. As the circuit court recognized, Mr.
Bartley’s alleged assault of Ms. Barahona occurred at least “several hours before” the
shooting, and “too much time had elapsed” for Mr. Reyes to claim that Mr. Bartley then
posed an immediate or imminent danger to Ms. Barahona. Indeed, Ms. Barahona was not
present at the shooting.22 “A common thread running through the cases in which the
defense of others has been recognized or an instruction . . . [has been] generated by the
evidence is that the person being defended was coming under direct attack when the
defendant came to his or her defense.” Lee v. State, 193 Md. App. 45, 64 (2010). Without
such evidence, any danger that Mr. Bartley may have posed to Ms. Barahona in the past
was, as the circuit court recognized, no more than irrelevant (and inadmissible)
propensity evidence.
Next, even if we were to reach Mr. Reyes’s contention that the State “opened the
door,”23 we conclude that the mention of a “church” did not open the door to evidence
22
For that same reason, it is also of no moment whether Mr. Bartley sought to
meet with Ms. Barahona to retrieve a “knife” in her possession: Ms. Barahona’s absence
from the scene of the shooting precludes a defense of others instruction.
23
We agree with the State that this argument is not preserved. Mr. Reyes claims
that Mr. Bartley’s testimony about meeting at a church served to open the door, but this
testimony came after the circuit court had excluded propensity evidence of Mr. Bartley’s
violent character as irrelevant, and invited counsel to revisit that ruling (or move for
reconsideration) if the evidence later became admissible. Mr. Reyes, however, never
again attempted to question Mr. Bartley about any propensity for violence—even after
Mr. Bartley’s testimony about meeting at the church—nor did he again raise the issue in
the circuit court. See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide
any other issue unless it plainly appears by the record to have been raised in or decided
by the trial court[.]”).
34
about Mr. Bartley’s propensity for violence. As used by Mr. Bartley, “church” was
simply an agreed meeting place, not any indication of a peaceful character. Mr. Bartley
never suggested, for instance, that the meeting place had any special significance beyond
that of a landmark, nor did he suggest that he had attended church in the past, or even that
he intended to enter the church as part of the meeting. In short, the mere reference to the
church as an agreed meeting place was not intended to (and did not) paint Mr. Bartley as
a peaceful victim, so the door was not opened.
Nor do we see any abuse of discretion in the circuit court’s exclusion of Mr.
Bartley’s history of violence against Ms. Barahona, including her request that he not visit
her home, as impeachment evidence. Acts of violence “generally have little or no direct
bearing on honesty and veracity.” Ricketts v. State, 291 Md. 701, 705 (1981). And here,
Mr. Reyes proffered no basis for why Mr. Bartley’s alleged violence toward Ms.
Barahona would reveal anything about Mr. Bartley’s credibility generally, or about why
it would have motivated Mr. Bartley to lie that Mr. Reyes was the shooter:
[COUNSEL FOR MR. REYES]: He told Detective Davis that
Emily set him up.
[THE COURT]: That is different than Emily shot him.
[COUNSEL FOR MR. REYES]: I --
[THE COURT]: So I am not sure I follow your logic.
[COUNSEL FOR MR. REYES]: Again, it is cross
examination. I have the right to cross examine the witness for
a variety of things. Not the least is which is why he would
blame my client. So if the Court is telling me that I cannot
cross examine Mr. Bartley to understand why he would
falsely claim that my client did this, then you know, I would
strongly object to that.
35
[THE COURT]: Well, I am going to sustain the objection to
that question.
In other words, even if Mr. Bartley had been violent toward Ms. Barahona, and
even if he believed that Ms. Barahona “had set him up,” Mr. Reyes offered no evidence
(or explanation) as to how this would have motivated Mr. Bartley to implicate Mr. Reyes
falsely or been admissible for some other permitted purpose. Accordingly, we do not
disturb the circuit court’s decision to exclude evidence of Mr. Bartley’s alleged violence
toward Ms. Barahona as impeachment evidence.24
JUDGMENTS OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED; COSTS TO BE PAID BY
APPELLANT.
24
As to the remainder of his desired lines of questioning, including that Mr.
Bartley provided an incorrect phone password to Detective Davis and that Mr. Bartley
previously stated that he sought to buy marijuana from Ms. Barahona, the issue is not
preserved. Mr. Reyes did not offer any of these lines of questioning for the circuit court’s
consideration, much less explain their relevance or factual foundation. On appeal, he
points only to broad, nonspecific arguments made before the circuit court, including “it is
cross examination. I have the right to cross examine the witness for a variety of things.”
That, however, is insufficient. See Peterson, 444 Md. at 125.
Moreover, even if we were to assume that these arguments were preserved, Mr.
Reyes also does not explain on appeal how they are relevant, except to argue that he
should have been allowed to explore any inconsistencies in Mr. Bartley’s testimony. The
State did not open the door to that questioning and “[t]rial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose reasonable limits on [] cross-
examination based on concerns about, among other things, . . . interrogation that is
repetitive or only marginally relevant.” Marshall v. State, 346 Md. 186, 195 (1997)
(quotations omitted). The circuit court did not abuse its discretion in so limiting the cross-
examination of Mr. Bartley.
36