SALISBURY — Maryland’s highest court this week ruled the use of a photo lineup to help identify a Salisbury man as the suspect in an attempted murder case was admissible, essentially upholding the state’s accepted practice of using photographs to help witnesses identify perpetrators.
In December 2011, Marcus Smiley, 54 of Salisbury, was convicted of attempted first-degree murder and other charges for shooting and attempting to kill Travis Green, also of Salisbury, in an apparent drug deal gone wrong. Two days after the shooting, Green picked Smiley out as the suspect from a photographic array provided by detectives depicting six individuals of the same race and similar age, size and physical appearance.
The photo line-up included pictures of six individuals with nearly the same physical appearance as Smiley, down to the same hairstyle and same facial hair pattern and the victim picked Smiley out of the line-up in about 30 seconds, according to court documents. Smiley was ultimately convicted and sentenced to life in prison plus 10 years, but he appealed the conviction on several accounts, including a notion the photo line-up presented to Green was predisposed to have the witness pick the suspect from the six pictures presented.
Smiley contended four of the six pictures in the line-up had been digitally altered, presenting the appearance of elongated faces, necks and the portions of the torsos in the photos. During the trial at Circuit Court level, an expert witness testified a witness would not likely pick a distorted image when attempting to identify a suspect.
Smiley appealed the case to the Court of Special Appeals, contending the photo identification process was skewed against him because of the distorted images of the other individuals presented to the victim. That court upheld the Circuit Court’s ruling on the issue, and Smiley then appealed to the higher Court of Appeals for a ruling on the issue. This week, the Court of Appeals upheld the lower courts’ rulings on the photo line-up issue.
“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,” the high court’s opinion reads. “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. 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 Court of Appeals also ruled in favor of the lower courts on an appeal regarding the posthumous testimony allowed at trial provided by a witness Smiley ultimately had “taken out” from his jail cell following the attempted murder on Green. Elmer Duffy had witnessed Smiley shoot Green and provided a written and oral statement to investigators and was prepared to testify against Smiley at trial.
However, Duffy never had a chance to testify against Smiley in the attempted murder case as he was shot and killed about two months later by Smiley’s nephew, who had allegedly received his marching orders from his uncle from behind bars. According to court records, Smiley contacted his mother and a another female via phone from jail and gave them explicit instructions to pass along to his nephew, Keith Parker, 26, of Salisbury to “get Duffy out of the picture” and prevent him from testifying.
On Feb. 20, 2012, Duffy was shot and killed in Salisbury. When it came to light Smiley had instructed Parker to eliminate Duffy and keep him from testifying against Smiley, Parker was charged with first-degree murder and conspiracy to commit murder. In January, Parker was convicted of second-degree murder and was sentenced to 25 years.
After his murder, Duffy’s written and oral testimony was allowed in court to help convicted Smiley. However, Smiley appealed, asserting Duffy’s testimony prior to his demise was hearsay and allowing it to be introduced at trial violated his Sixth Amendment rights.
Smiley appealed to the Court of Special Appeals late last year in attempt to block the evidence against him that he essentially ordered the hit against Duffy carried out by Parker. Smiley argued the recorded phone messages captured from jail of him instructing his mother and another female to pass along to Parker to eliminate Duffy were hearsay. The trial court contended from the beginning the admission of the recorded phone messages calling for the elimination of Duffy constituted a cause of making the witness unavailable to testify. The Court of Special Appeals ruled against the appeal and this week, the higher Court of Appeals upheld that ruling.
“In this case, there was sufficient evidence for the hearing judge to find, by a clear and convincing standard, that Smiley ardently and insistently sent word to his nephew to get rid of Elmer Duffy, that Elmer Duffy was subsequently murdered, that Smiley jubilantly reacted to the news of the murder,” the high court’s opinion released this week reads. “Smiley asserts there was no evidence connecting him to the murder of Mr. Duffy. We disagree.”