215 A.3d 846
Md. Ct. Spec. App.2019Background
- On Sept. 21, 2015, Kevin Cannady was shot once; surveillance showed two men (one in a black hoodie, one in a burgundy jacket) fleeing; no eyewitnesses to the shooting itself.
- Police found a .38 revolver about a block away in an alley; ballistics could not conclusively link the recovered bullet to that gun.
- Three anonymous 911 calls (5:35, 5:41, 5:49 p.m.) reported seeing two males run into the alley and indicate where a gun had been hidden; the trial court admitted call 1 as an excited utterance and calls 2–3 as present sense impressions.
- DNA testing of a swab from the gun used TrueAllele probabilistic genotyping; initial manual comparison was inconclusive, but a TrueAllele run assuming two contributors produced a match declaring the defendant a minor contributor.
- Appellant challenged (1) admission of the hearsay 911 calls and (2) his restricted opportunity to attack TrueAllele evidence at trial; the Court of Special Appeals reversed the conviction and remanded.
Issues
| Issue | State's Argument | Morten's Argument | Held |
|---|---|---|---|
| Admissibility of 5:35 p.m. anonymous 911 call (excited utterance) | The caller was nervous/startled and the call recounted observations made shortly after the shooting, so it fit the excited utterance exception. | The call was 24+ minutes after the shooting, largely past-tense narrative, ambiguous about whether caller heard the shot or heard about it, and the caller was unidentified — so the excited-utterance exception did not apply. | Call at 5:35 p.m. did not qualify as an excited utterance; admission was reversible error. |
| Admissibility and trial handling of TrueAllele DNA evidence | TrueAllele had been validated under applicable standards and, per Phillips, DNA evidence was admissible; any weaknesses go to weight not admissibility. | Morten argued TrueAllele’s novel probabilistic methods and case-specific choices (e.g., number-of-contributors assumption) required robust confrontation and presentation to the jury; he was deprived of meaningful opportunity to challenge weight and expert testimony. | TrueAllele was admissible, but the trial court improperly limited defense presentation/cross-examination of its critic (Dr. Word) and curtailed exploration of critical ad hoc issues (e.g., contributors assumed); those exclusions undermined Morten’s right to present a defense. |
| Scope: present sense impression calls (5:41 & 5:49 p.m.) | These calls were contemporaneous observations and thus fit the present sense impression exception. | Some statements in those calls were past-tense narration and not truly contemporaneous perceptions; only limited portions qualified. | Parts of calls 2 and 3 were admissible as present sense impressions, but much of their substance was past-tense narration; they added little beyond call 1. |
| Whether errors required reversal | Errors were harmless if the remaining evidence sufficed to support conviction. | Admission of call 1 was central to linking defendant to the gun; improperly limiting defense experts deprived him of a meaningful challenge to the DNA evidence—errors were prejudicial. | Court vacated judgment and remanded, finding hearsay error dispositive and also identifying significant restrictions on defense presentation of TrueAllele challenges. |
Key Cases Cited
- Cassidy v. State, 74 Md. App. 1 (Md. Ct. Spec. App.) (proponent bears burden to establish hearsay exception reliability)
- Mouzone v. State, 294 Md. 692 (Md. 1982) (excited utterance requires startling event and spontaneity)
- Parker v. State, 365 Md. 299 (Md. 2001) (heightened reliability burden for anonymous declarants)
- Booth v. State, 306 Md. 313 (Md. 1986) (recognition of present sense impression exception)
- Phillips v. State, 451 Md. 180 (Md. 2017) (DNA validation/statutory admissibility; challenges to method often go to weight)
- Armstead v. State, 342 Md. 38 (Md. 1996) (case-specific challenges to test performance affect weight rather than admissibility)