In many instances, a witness' identification of the accused may be the feather that tips the scale in favor of conviction." 219 Md. App. 1, 15–16, 98 A.3d 1032 (2014). Regardless of whether PS § 3–506.1 articulates available remedies, we are concerned, as we stated in Morales , with the importance of law enforcement adhering to the procedures contained in the statute.
C. Standard of Review In reviewing the denial of a motion to suppress evidence, we ordinarily look only to the record of the suppression hearing. Prioleau v. State, 411 Md. 629, 638 (2009); Morales v. State, 219 Md. App. 1, 13 (2014). We view the evidence adduced at the hearing in a light most favorable to the prevailing party, under a clearly erroneous standard.
An out-of-court statement is admissible as non-hearsay "if it is offered for the purpose of showing that a person relied and acted upon the statement, rather than for the purpose of showing that the facts elicited in the statement are true." Morales v. State, 219 Md. App. 1, 11 (2014) (citing Purvis v. State, 27 Md. App. 713, 716 (1975)). Further, the admission of hearsay is not reversible error "when objectionable testimony is admitted if the essential contents of that objectionable testimony have already been established and presented to the jury without objection through the testimony of other witnesses."
"'[T]he scope of identification procedures constituting "impermissible suggestiveness" is extremely narrow.'" Morales v. State, 219 Md. App. 1, 14 (2014) (quoting Jenkins v. State, 146 Md. App. 83, 126 (2002), rev'd on other grounds, 375 Md. 284 (2003)). "'To do something impermissibly suggestive is . . . to feed the witness clues as to which identification to make[,]'" Morales, 219 Md. App. at 14 (quoting Conyers v. State, 115 Md. App. 114, 121 (1997)), or "where the police, in effect, repeatedly say to the witness: 'This is the man.'"
The linchpin of the analysis is the reliability of the identification. If the accused fails to carry his or her burden demonstrating impermissibly suggestive police procedures, however, our inquiry ends and the identification is deemed reliable.Morales v. State, 219 Md. App. 1, 13-14 (2014) (citations omitted). The Court of Appeals has explained that "[s]uggestiveness 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."
Additionally, the Court of Special Appeals has reviewed whether repeating an individual's picture may render a photo array suggestive. See, e.g. , Morales v. State , 219 Md. App. 1, 98 A.3d 1032 (2014). In Morales , Luis Morales argued that the identification procedure, through which he was identified as the perpetrator of a crime, was impermissibly suggestive.
The trial court's failure to take any action before the jury distinguishes the instant case from Morales v. State, 219 Md.App. 1 (2014), and Hyman v. State, 158 Md.App. 618 (2004), two cases on which the State relies. In each of those cases, the trial court remedied the error in the presence of the jury.
; Jones v. State, 395 Md. 97, 109 (2006); Morales v. State, 219 Md.App. 1, 13 (2014). "First, the burden falls on the accused to establish that the procedures employed by the police were impermissibly suggestive."
"The sin is to contaminate the test by slipping the answer to the testee." Morales v. State, 219 Md.App. 1, 14 (2014) (citations and quotations omitted). See also Reyes v. State, 257 Md.App. 596, 619-20 (2023) (distinguishing between selective and confirmatory identifications and recognizing that, "[a]n 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") (citation omitted).
"Generally, an out-of-court statement is admissible as non-hearsay if it is offered for the purpose of showing that a person relied and acted upon the statement, rather than for the purpose of showing that the facts elicited in the statement are true." Morales v. State, 219 Md. App. 1, 11 (2014). "[A]ppellate review of whether evidence is hearsay and, if so, whether it falls within an exception and is therefore admissible, is de novo."