Hopkins v. State12/11/1998
ident and in-court identification did not undermine reliability given other considerations). Here, Mrs. McQuay heard the petitioner say many things, including his order for her to go to the front of the car, to give him her money, "give everything we had or my husband would have his . . . head blown off. And he repeated that many, many times." Additionally, she heard him say " ive me the necklace, bitch," from a distance of two feet. Mrs. McQuay was subjected to a barrage of threatening comments from petitioner. Moreover, Mrs. McQuay remembered that the perpetrator had been "articulate."
A standard definition of articulate is "uttered clearly in distinct syllables . . . using language easily and fluently . . . ." The Random House Dictionary of the English Language 85 (unabr. ed. 1983). During the incident, Mrs. McQuay took special notice of petitioner's voice because, despite his use of slang and threatening language, he enunciated each word distinctly, without slurring his speech. Her identification of petitioner's voice was based, at least in part, on this distinctive aspect of his speech - its articulateness. It buttressed her prior visual identification of him, and rehabilitated whatever degree of uncertainty that petitioner's cross-examination may have created.
Petitioner asserts the means used to obtain the voice exemplar renders it unreliable because it was inevitable that, after hearing petitioner speak, Mrs. McQuay would identify him as the robber. Petitioner also argues that, at the time he was compelled to give the voice exemplar, no other African-Americans of his age were present in the courtroom. In other words, petitioner challenges the method of identification as suggestive. We disagree. Mrs. McQuay already had identified petitioner twice before he gave the voice exemplar. As Webster v. State, 299 Md. 581, 601, 474 A.2d 1305, 1315 (1984), explains, even though an identification is suggestive, it will be admissible if it is reliable. See also Manson, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d 140. Considering Mrs. McQuay's previous identification of petitioner in a photo lineup and her assertive identification in-court without the voice exemplar, we find that the voice identification, even if suggestive, did not cause any "irreparable misidentification" because it was sufficiently reliable.
Finally, once identification testimony has passed the threshold of relevance and reliability, issues affecting credibility of the in-court identification go to its weight, not its admissibility. For example, in Dyson, 238 Md. at 402-03, 209 A.2d at 611-12, the victim failed to identify the defendant both in a lineup and when he was brought before her in a police station. Only after the defendant spoke did the victim recognize him. We held the victim's failure to identify the defendant before he spoke would affect the weight of her subsequent identification of his voice, not its admissibility. Id. at 403, 209 A.2d at 612.
More recently, the Pennsylvania Superior Court held that " ny discrepancies between the conditions during the in court identification and those during the robbery were for the [trier of fact] to weigh in assessing the weight to be given to the witness's identification testimony." Thomas, 394 Pa. Super. at 326, 575 A.2d at 926. In State v. Brooks, 49 N.C. App. 14, 22, 270 S.E.2d 592, 598 (1980), appeal dismissed, 301 N.C. 723, 276 S.E.2d 285 (1981), the North Carolina Court of Appeals noted that although the identification witness "refused to identify the defendant positively, he was unshakable in his assessment of defendant's voice as being `very familiar to' the one he had heard at the robbery." Id. The court then held that any lack of certainty i
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