Reyes v. State

• Court: Court of Special Appeals of Maryland
• Decided: March 29, 2023
• Docket: 1426/21
• Status: Published

Opinion

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?

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.

7 Of 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.