By Tom Ryan
In criminal cases where a victim or witness has identified the defendant as the perpetrator, it is common for the defense attorney to seek to keep the fact that the defendant was identified out of evidence by challenging the procedure used. The argument made is that the identification process was impermissibly suggestive. How that argument applies to identifications made at or near the crime scene was explored by Maryland’s intermediate appellate court in an unreported opinion issued last week in the case of Wayne Bell v. State of Maryland.
The Court’s opinion indicates that the victim exited a movie theater and spoke with an acquaintance of hers, who then observed the defendant following her and felt he was “going to roll” the victim. Sure enough, the man grabbed the victim’s purse and ran off, pursued by her friend. He came upon the defendant seated at the curb with his shirt off going through her purse, and after a scuffle with the assistance of another bystander the defendant was subdued till the police arrived.
The police officer’s body camera video, which was played at trial, showed the victim coming up to the police officer to advise her purse had been snatched from her. The officer then led her over to where the defendant was seated handcuffed, and asked if that was the man who robbed her, and she said yes. The trial judge allowed the identification into evidence, and the jury convicted the defendant, who appealed.
The Court noted that to determine if an extrajudicial (out of court) identification of a suspect is admissible at trial, the trial judge must decide: 1) has the defendant shown that the identification was impermissibly suggestive, and if so 2) under all the circumstances, was the identification reliable. The fact that a single suspect is shown to the witness for identification may be suggestive, but previous case law established that such identifications were permissible in the immediate aftermath of a crime while apprehension of a suspect is still unsettled.
The appellate Court agreed with the trial judge that this identification was not impermissibly suggestive. Neither a witness nor the officer said this was the robber, and the victim was only asked if this was the man that stole her purse. This illustrates the burden a defendant must meet in trying to exclude from evidence an identification at the crime scene.