Matthews v. StateMatthews v. State
- Reporters:
- ,
- Before:
- Nazarian, Graeff, Alpert Paul E.
Expert photogrammetry and reverse photogrammetry projection testimony was unreliable, and failed to satisfy
I. BACKGROUND
The story of this case is complicated and hard to follow. A great many people were involved; many of them are related, others have lived in the affected neighborhood for years. Everything happened late at night, and the participants’ vision and memories were incomplete and frequently clouded by substances. There was some video footage, but it too was incomplete. The challenge for everyone lay in piecing together fragments of evidence that took many different forms.
On June 1, 2017, at approximately 12:30 a.m., the bodies of Linda McKenzie and Leslie Smith, her boyfriend, were found by the side of Scott Town Road, a dead-end street in Shady Side. The cause of death for both was multiple shotgun wounds to the upper extremities at close range. After a lengthy trial at which the only disputed issue was the
In the hours before the victims’ deaths, each had traveled separately to Scott Town Road. They eventually got into a noisy fight that culminated in them chasing one another down the road in cars, one car driving forward and the other in reverse. The car driving in reverse backed into a ditch near the entrance of Scott Town Road. The police were called, and the car was removed from the ditch with the help of a neighbor, Joseph Tongue. After the car was removed, the victims remained in the vicinity, and the shooting occurred a short time later.
According to the prosecutor‘s opening statement, Scott Town Road is populated primarily by families who have lived in the area for generations. The prosecutor noted that many of the residents have developed family-like relationships and generally consider each other cousins, whether or not they‘re actually related by blood or marriage. Scott Town Road is also known to the police department as an open-air drug market, according to the prosecutor‘s opening statement:
So this area of Shadyside, this is Scotts Town Road. This is Shadyside Road, and this is the road that cuts through called Nick Road, so there‘s an intersection at the top of Scotts Town Road and Nick Road. This area is commonly known to the police department as what‘s called an open-air drug market. Particularly, the Scotts Town Road and the intersection of Nick and Scotts Town Road.
Now . . . the locals call this dead-end part of Scotts Town “Down Bottom.” They call that entire road “Lane,” and this section up here at the intersection of Nick Road and Scotts Town Road is called “Up Top“. . . . What you‘re going to hear is that on any given day, if you drove Down Bottom, to the end of Scotts Town Road, you could go and buy drugs of any sort, illegal drugs, from somebody down in that area. Or . . . you can
return Up Top to the intersection of Nick Road and Scotts Town Road and there‘s a drug house on the corner.
The day before the murders, the police had set up a surveillance pole camera at the top intersection of Nick Road and Scott Town Road. Another house, the Blunts‘, has two security cameras. One of the Blunts’ cameras is mounted on the garage and aims down the driveway, and the other is set on the left-hand corner of the house aimed out to the street; both point directly at Scott Town Road. The cameras didn‘t capture the shootings on video, but they did provide evidence and helped paint the picture of events on the night of the murders.
Among the events captured on video was the car chase, which ultimately ended with one of the cars driving in reverse backing into the ditch. From there, the video showed Ms. McKenzie, Mr. Smith, and Mr. Tongue walking up and down the road trying to figure out how to get the car out of the ditch. Then the police arrived, and Mr. Tongue and Mr. Smith are seen pushing the car underneath the pole cam and out of view, then into Mr. Tongue‘s grandmother‘s driveway.
Roughly twenty minutes after the police left Scott Town Road, the Blunts’ cameras captured people running away from the scene of the shooting and a car backing away from the scene. The video then shows an individual walking on the street, carrying what appears to be a shotgun, cutting past the Blunt house and into the woods.
Both the events following the car‘s removal from the ditch and the identities of the individuals involved were hotly contested. Many of the witnesses were inebriated and struggled to remember the details of the evening.
Mr. Tongue then walked away and heard Mr. Matthews arguing with the victims. After Mr. Tongue was some distance away, he heard gunshots and ran. He looked back after the second gunshot and saw Mr. Matthews standing next to Ms. McKenzie and Mr. Smith lying on the ground. The video also showed Mr. Tongue continuing to run and jumping into the car of his cousin, Kevin Matthews, along with a friend, Rico Hicks, who also was also fleeing the scene.
Kevin1 dropped off Mr. Tongue and Rico at a neighbor‘s house, where they slept for an hour or more because, Mr. Tongue testified, they were “drunk” and “high.” Mr. Tongue testified that at roughly 4:30 a.m. on June 1st, the two encountered the police
Later that same day, around 6:30 p.m., the police again questioned Mr. Tongue when they stopped a car in which he and Rico were riding. Mr. Tongue did not mention Mr. Matthews in response to those questions either. About a week later on June 7th, the police took Mr. Tongue to the police station for an unrelated arrest warrant and they again questioned him about the murders. Mr. Tongue testified that the police insinuated to him that they could help him out with his warrant, and they remarked that “inconveniences like this are going to keep happening,” and that “things in the area were not going to go back to normal.”
Finally, Mr. Tongue testified that on August 17th, the Fugitive Apprehension Squad picked up him and Rico pursuant to a warrant to obtain their DNA. He testified that the police questioned him a fourth time about the murders, and accused him of “not being honest,” and said he was “going to be in this” whether he liked it or not. The detectives then showed Mr. Tongue the Blunt house camera footage, and they warned him that he would see Mr. Matthews in it. Mr. Tongue later identified Mr. Matthews as the individual holding the gun, but maintained that he did not see the murders.
On September 22nd, Mr. Tongue testified before a grand jury after meeting with the prosecutor. At that time, he provided his first account of seeing Mr. Matthews with a shotgun standing within five feet of the victims.
Kevin is Mr. Matthews‘s and Mr. Tongue‘s first cousin. At trial, he testified that he
Richard Jackson grew up in the area and traveled to the Lane to do drugs the night of May 31st He testified that he arrived in the evening and was Down Bottom with Mr. Matthews and Rico. He saw the victims arguing with each other as they got into their cars and as Ms. McKenzie chased Mr. Smith into the ditch. Richard followed the chase in his own car, with Rico, then parked on the side of Scott Town Road. He testified that Mr. Matthews walked up to the victims and said something like, “come on, y‘all. Can you please keep it down?” He explained that Mr. Matthews “was trying to have them, you know, quiet down because they were being super loud.” But Mr. Smith was “running his mouth,” and that‘s when Mr. Matthews “just said, that‘s all right, I got something for your ass or something along those lines” and walked away from the victims. Richard testified that this encounter occurred right before the police came to assist with the car in the ditch, but that he left the scene “pretty much right after” the police left, explaining, “I was waiting for them to leave so I could leave.”
Richard also testified that right before he left, he saw Mr. Matthews walking down Nick Road towards Scott Town Road carrying a shotgun. Because of where his car was parked, he could see Mr. Matthews from a distance, walking down the road. He decided to
Charles Jackson also was on the Lane the night of May 31st, in his case to pick up a friend. He heard Mr. Matthews say that Ms. McKenzie was “making the Lane hot, and to get the shit out of there.” Charles drove home while the victim‘s car was still in the ditch, and he testified that he did not pass any cars parked along the side of Scott Town Road on his way. He explained that it is not a wide road, and there is nowhere to pull over, so he would have noticed another parked car.
Rico grew up in the Shady Side area, roughly two minutes from Scott Town Road, and is Mr. Matthews‘s and Kevin‘s first cousin. He testified that on May 31, 2017, he arrived at the Lane in the evening with Kevin and another individual, Peter Brown. Rico bought drugs and, about a half-hour later, walked towards the Bottom alone. On his way, he ran into Mr. Tongue, who followed him, and they passed Ms. McKenzie, who also walked alone on Scott Town Road towards the Top. When Rico arrived Down Bottom, he got high on PCP and crack. Sometime later, while standing in front of the Blunt house,
Rico‘s uncle, Edward Hicks, testified over the objection of defense counsel. Edward testified that he heard gunshots the morning of June 1, 2017, and later asked Rico what happened. He testified that Rico told him he had seen Mr. Matthews shoot two people and drag them off the road, and that it was the worst thing he had ever seen. Edward admitted that he did not contact the police until five weeks later, and he asked about a reward for providing information that would lead to an arrest. When he later spoke with the prosecutor, he asked again about reward money.
Finally, Kathrine Bragg testified on behalf of the defense. In May 2017, Ms. Bragg was living on Nick Road, where she had moved only six months earlier, with her husband and three children. Ms. Bragg was unfamiliar with the neighborhood before moving there. The night of May 31st, around 10:30, she sat in the driveway of her home with her teenage daughter waiting for her husband to return from work. Ms. Bragg drank four or five White Russian cocktails that night, a regular occurrence for her.
While sitting in the driveway, Ms. Bragg saw a barefoot white woman walk past her house in the direction of Scott Town Road. She described the woman as angry, talking on her cell phone, and wearing short-shorts and a short sleeve top—the same clothing Ms. McKenzie was wearing in crime scene photos. Next, a white, heavier-set man walked
Approximately ten minutes later, Ms. Bragg and her family saw another white male holding a shotgun and walking down Nick Road in the same direction the other male and female had walked. She testified that the armed man was roughly 5′11″ or taller, blondish hair, thin, and twenty-five or younger. The armed individual cocked the shotgun right in front of the Braggs’ house. She explained that the streetlights in front of her house were “really bright” and that she could even see the silver metal and wood on the shotgun. Ms. Bragg‘s husband proceeded to call 911 to report the armed man, but while he was still on the phone, they heard the gunshots. The shots were fired roughly two minutes after the armed individual walked past Ms. Bragg‘s house.
On June 3, 2017, at 5:30 a.m., the police executed a no-knock search warrant at Mr. Matthews‘s home on Shady Side Road, where he lived with his elderly parents. The police recovered various items of clothing from throughout the house, a .410 caliber shotgun from Mr. Matthews‘s father‘s room, and three items—a twelve-gauge double barrel shotgun, twelve-gauge shotgun barrel, and twelve-gauge ammunition—from Mr. Matthews‘s room. The shells found at the murder scene indicated that all were fired from the same weapon, a twelve-gauge shotgun. Forensic analysis revealed, however, that those shells had not been fired from the shotgun found in Mr. Matthews‘s room, which fired only from one barrel.
II. DISCUSSION
Mr. Matthews raises three issues on appeal that we rephrase.2 First, did the court err in permitting Edward Hicks to testify about an allegedly inconsistent prior statement by
A. The Trial Court Did Not Err In Overruling The Defense‘s Objection To Impeach A Witness With A Prior Inconsistent Statement.
Mr. Matthews contends that the trial court violated Maryland Rules 5-6163 and 5-613 when it admitted extrinsic evidence about an allegedly inconsistent prior oral statement by Rico Hicks. He argues first that the State did not disclose the contents or circumstances of the statement adequately; second, that Rico was not given an opportunity to explain or deny the statement; and, third, that Rico did not deny making the statement, but simply did not remember. Additionally, Mr. Matthews argues that the State only called Rico as a
In response, the State advances several arguments. First, the State argues that Mr. Matthews failed to preserve his objection for appellate review because defense counsel gave specific grounds for objection that do not encompass the broader objections on appeal. And even if the objection was preserved, the State says, Mr. Matthews abandoned his objection when his defense counsel came to a “shared understanding” with the court. Second, the plain language of
On October 19, 2019, the fourth day of trial, the State called Rico as its twelfth witness. Throughout the investigation and grand jury testimony, Rico maintained that he had not seen the shooting or any individual with a gun the night of the murders. At trial, Rico testified that he did not see Mr. Matthews the night of May 31st and into the morning hours of June 1st. On cross-examination the prosecutor asked Rico if he had remembered telling his uncle Edward a different version of events:
[THE STATE]: Sir, do you remember telling any—telling other people that you did see more than what you‘ve told the jury here today?
[MR. HICKS]: No, ma‘am.
[THE STATE]: Do you know who Edward Hicks is?
[MR. HICKS]: Yeah, m.
*** [THE STATE]: Okay. Do you remember telling him anything about what happened that night?
[MR. HICKS]: No, ma‘am.
[THE STATE]: Okay. That‘s all I have for him. Thank you.
After Rico stood down, the State pronounced its intention to impeach him by having Edward testify about a prior, and allegedly inconsistent, oral statement. The defense moved to preclude the State from impeaching Rico, arguing that he could not be impeached with an inconsistent prior statement because he had not denied making any particular statement, but had testified only that he did not remember telling his uncle anything about what happened. The court, prosecutor, and defense counsel then debated what had been asked during the testimony:
[DEFENSE COUNSEL]: Your Honor, [Edward] is going to be my witness and given Rico Hicks’ testimony and the State indicating that they plan to impeach Mr. Hicks’ testimony, Rico Hicks that is, with statements previously made to Edward Hicks, I would make a motion to preclude that. As we have heard Rico Hicks testify here today that he, in his words, does not remember speaking to Edward Hicks at all about the night incident, which I think does not open for the State to impeach with a prior statement concerning that night. He denied making statements. He didn‘t state that something different than his testimony here today, which is generally consistent with the testimony he gave before the grand jury, and consistent with statements made previously to Ms. Poma as well as to Detective Carbonaro. So I think given his testimony that he does not remember, that impeachment with that prior statement is not proper.
[THE STATE]: Your Honor, the question before I asked, do you remember telling Edward Hicks, was, did you ever tell anyone that you saw what happened that night, and he said no.
THE COURT: He did – he did say he didn‘t. I wrote down that he said he didn‘t.
[DEFENSE COUNSEL]: Right, but when specifically asked about Mr. Hicks, did not say no, I didn‘t speak to him. He said, I don‘t remember telling him anything about that night. THE COURT: I think, at some point, I remember that he said he didn‘t tell him.
[THE STATE]: I think he did too. But either way, if he said he never told anyone, I was only trying to give him an opportunity so that we did not feel that he has an opportunity to handle it himself. But I agree with Your Honor that I think he laughed and said, no, I didn‘t tell anyone that or I didn‘t tell him that.
THE COURT: Do we all agree that he said he didn‘t tell anyone that?
[DEFENSE COUNSEL]: Your Honor, my notes indicate he was asked, did you tell anyone that you saw more and his response was no.
THE COURT: Right. So I think that sufficiently – anyone, certainly, would – I wrote down – and granted, I don‘t say write down word for word that he didn‘t say anything to his uncle. I recall him saying he didn‘t tell anyone. It is possible that my notes aren‘t word for word, so I don‘t want to suggest that they are, but I think not telling anyone includes not telling his uncle. So I think there‘s sufficient basis to allow the State to ask, inquire. So I am going to allow it.
Under
At trial, Mr. Matthews objected to the State impeaching Mr. Hicks with a prior inconsistent statement based specifically on the argument that Rico did not deny making the statement, but didn‘t remember making one. The State is right, then, that Mr. Matthews did not preserve the entire argument he seeks to raise here. See Brecker v. State, 304 Md. 36, 39–40 (1985) (“[W]hen an objector sets forth the specific grounds for his objection, although not requested by the court to do so, the objector will be bound by those grounds and will ordinarily be deemed to have waived other grounds not specified.“).
That said, we don‘t agree that Mr. Matthews abandoned the objection he did make when the defense came to a “shared understanding” with the court. When objecting to a trial court‘s evidentiary ruling, “it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.”
That leaves the question that was raised, i.e., whether Edward‘s testimony about Rico‘s prior oral statement—that he allegedly witnessed Mr. Matthews committing the murders—was admissible as a prior inconsistent statement to impeach Rico when he testified that he didn‘t remember making any statement. Decisions to admit prior inconsistent statements are legal decisions we review de novo. Brooks v. State, 439 Md. 698, 708–09 (2014). A witness‘s prior inconsistent statement is “‘[a] witness‘s earlier statement that conflicts with the witness‘s testimony at trial.‘” Belton v. State, 152 Md. App. 623, 632 (2003) (alteration in original) (quoting Black‘s Law Dictionary 1212 (7th ed. 1999)). Generally, “prior statements by a witness that are inconsistent with the witness‘s in-court testimony are admissible to impeach the credibility of the witness.” Stewart v. State, 342 Md. 230, 236 (1996). “Evidence is ‘extrinsic’ when it is ‘proved through another witness, or by an exhibit not acknowledged or authenticated by the witness sought to be contradicted.‘” Anderson v. State, 220 Md. App. 509, 519 (2014) (quoting 6 Lynn McLain, Maryland Evidence State and Federal § 607:3, at 553 (3d ed. 2013)).
(a) Examining witness concerning prior statement. A party examining a witness about a prior written or oral statement made by the witness need not show it to the witness or disclose its contents at that time, provided that before the end of the examination (1) . . . if the statement is oral, the contents of the statement and the circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it.
(b) Extrinsic evidence of prior inconsistent statement of witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and (2) unless the statement concerns a non-collateral matter.
Before a party can offer extrinsic evidence of a prior allegedly inconsistent oral statement of a witness, (1) the content of the statement and the circumstances under which it was made must be disclosed to the witness; (2) the witness must be given an opportunity to explain or deny making the statement; (3) the witness must fail to admit having made the statement; and (4) the statement must not be collateral to the issues. Brooks, 439 Md. at 717–18.
The objection Mr. Matthews preserved bears on the third element—the witness must “fail[] to admit having made the statement.” Id. at 718 (quoting
Here, Mr. Hicks was asked if he recalled telling his uncle Edward that he saw more about the night in question than what he described in his testimony, and he answered, “No, ma‘am.” The trial court did not abuse its discretion in finding that Rico “failed to admit having made the statement” for purposes of
Finally, Mr. Matthews argues that the State only called Mr. Hicks to testify as a “subterfuge” to admit otherwise inadmissible hearsay as impeaching evidence. The State asserts again that this argument was not advanced in the trial court, we agree that it wasn‘t, and it is not before us.
Until roughly two weeks before he testified at Mr. Matthews‘s trial, Mr. Tongue had three criminal cases pending against him, all in Anne Arundel County. Shortly before trial, Mr. Tongue entered into a plea agreement that encompassed two guilty pleas and caused the other case to be stetted.
Mr. Tongue‘s first case arose from an incident that occurred on May 22, 2017, before the murders of Linda McKenzie and Leslie Smith. Mr. Tongue was charged in that case with second-degree assault and reckless endangerment. That case was stetted on October 5, 2018. His second case stemmed from an incident on November 29, 2017. He was charged in that case with kidnapping, first and second-degree assault, reckless endangerment, false imprisonment, theft, and malicious destruction of property less than one thousand dollars, and he pleaded guilty to reckless endangerment on October 5, 2018, shortly before Mr. Matthews‘s trial. The final case arose from an incident that occurred on June 6, 2018. Mr. Tongue was charged with home invasion, first- and fourth-degree burglary, second-degree assault, malicious destruction of property, theft, credit card theft, and false imprisonment. He pleaded guilty in that case to second-degree assault, also on October 5, 2018. Under the plea agreement, Mr. Tongue received a combined sentence of four years of active incarceration with three years of supervised probation, but sentencing was delayed until after Mr. Matthews‘s trial.
At Mr. Matthews‘s trial, the defense argued that they should be allowed to cross-examine Mr. Tongue about (a) all three cases, including the fact that the lead charges in
The trial court ruled the defense was entitled to cross-examine Mr. Tongue about the case that preceded his grand jury testimony, which took place on September 22, 2018, and about the terms of the plea agreement that encompassed all three cases. The court reasoned that Mr. Tongue could not, at the time of his grand jury testimony, have perceived he would receive some benefit in connection with future offenses. The court precluded the defense from eliciting the charges brought against Mr. Tongue in the two cases that arose after the grand jury testimony and the statutory maximums for the charges to which Mr. Tongue had pleaded guilty, although the court allowed that if Mr. Tongue‘s testimony was inconsistent with his grand jury testimony to the benefit of the State, the court would be willing to revisit the issue.
Mr. Tongue turned out to be a rather uncooperative trial witness.5 He testified
Mr. Tongue testified that on October 5, 2018, he pled guilty to second-degree assault and reckless endangerment pursuant to a plea agreement that resolved the three separate cases against him, and his sentencing was postponed until November 16, 2018. He understood the first case was put on the stet docket, meaning it would not be prosecuted at this time, but could be prosecuted at a later date. The court permitted defense counsel to elicit, over the State‘s objection, that one of the charges in the case that had been stetted was second-degree assault, which carried a maximum penalty of ten years. Mr. Tongue confirmed that the plea agreement called for four years’ active incarceration, but that there was no agreement as to suspended time or probation and that he hoped to get time served instead of four years. The defense never asked Mr. Tongue whether he had a subjective expectation of receiving a benefit as a result of testifying in this case. And on redirect, the State addressed this point directly—Mr. Tongue denied having any such expectation and confirmed that he didn‘t want to testify against his cousin.
1. A threshold level of inquiry.
Mr. Matthews takes issue with the extent of questioning he was allowed about the plea agreement and the fact that Mr. Tongue‘s sentencing was postponed until after trial.
The right of a criminal defendant to cross-examine a State‘s witness is “essential to the truth-finding function of a trial.” Peterson v. State, 444 Md. 105, 122 (2015); see also Martinez v. State, 416 Md. 418, 428 (2010) (“The right of confrontation includes the opportunity to cross-examine witnesses about matters relating to their biases, interests, or motives to testify falsely.” (citing Davis v. Alaska, 417 U.S. 308, 316–17 (1974))). This right is safeguarded by the confrontation clauses contained in both the federal and Maryland constitutions.6 This tenet also is incorporated in
2. The trial court didn‘t abuse its discretion.
“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis, 415 U.S. at 316. But the right to cross-examine isn‘t absolute—it guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original). The record in this case reflects that Mr. Matthews was provided with ample opportunity to elicit from Mr. Tongue information about his pending charges that relate to his credibility as a witness. Before the jury, Mr. Tongue confirmed that he understood that he could be subject to prosecution on his stetted second-degree assault charge, that the maximum sentence on that charge was ten years, that he pled guilty to second-degree assault and reckless endangerment, that the sentence contemplated by his
Trial courts have “wide latitude” to impose reasonable limits on cross-examination. Peterson, 444 Md. at 123 (quoting Smallwood, 320 Md. at 307–08). In this instance, the trial court grounded its limitations on Mr. Matthews‘s questioning to his grand jury testimony, while allowing for the possibility to revisit the issue if Mr. Tongue strayed from it:
THE COURT: [T]he reason why I‘ve fashioned my ruling in this manner is that [Mr. Tongue] would have had to have been able to see in the – into the future, essentially, in order to gain some benefit regarding future offenses at the time he gave his Grand Jury testimony. So we‘ll see how he testifies. And, if appropriate, I‘m open to revisiting the issue.
The defense maintains that they were prohibited from eliciting Mr. Tongue‘s expectations of a benefit in exchange for information or testimony and from being allowed to paint the full picture of the charges Mr. Tongue was facing when he entered the plea agreement. But despite the defense‘s claim they it had a “good faith” understanding of Mr. Tongue‘s subjective mindset from their own pre-trial discussions with him, counsel never asked Mr. Tongue if he had a subjective expectation of a benefit for his testimony. That opportunity distinguishes this case from Manchame-Guerra v. State, 457 Md. 300, 320–22 (2018) and Calloway v. State, 414 Md. 616 (2010), in which the defendants were prohibited altogether from making any inquiry as to whether witnesses had a subjective expectation of benefit in their own criminal cases. See Manchame-Guerra, 457 Md. at 307; see Calloway, 414 Md. at 632–33.
In this case, the trial court observed “both sides agree that there was no deal in place here” in exchange for Mr. Tongue‘s testimony. On these facts, the trial court afforded Mr. Matthews reasonable latitude to demonstrate and argue why Mr. Tongue‘s testimony should be viewed with skepticism, and he was given the opportunity to inquire about Mr. Tongue‘s subjective belief. That got Mr. Matthews to a “threshold level of inquiry,” and we see no abuse of discretion in the trial court‘s decision to prevent him from going farther.
Mr. Matthews filed a motion in limine to preclude the testimony and report of Kimberly Meline and Jenna Walker, an FBI physical scientist and her trainee, in which they used photogrammetry and reverse photogrammetry projection to identify the shooter from contemporaneous videos. He argued that allowing the testimony and report of Ms. Meline would violate Rules 5-702 and 5-403, the then-prevailing Frye-Reed8 standard, and the due process and fair trial rights guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article 24 of the Maryland Declaration of Rights.
On September 21, 2018, Ms. Meline took the stand at a pre-trial hearing. She testified that she was a physical scientist with the FBI who had completed dozens of photogrammetric exams and had testified in court about photogrammetry four or five times. She clarified that she specializes in multimedia evidence and explained that photogrammetry involves taking measurements from photographs to determine how fast a vehicle is moving through a video, the length of a firearm, or how tall a subject is. From there, she explained that reverse photogrammetry projection is a specific type of photogrammetry that involves going back to a scene, recreating the image conditions, and then placing a calibrated measuring device where the subject was standing as a way of determining how tall the person was. Following a thorough discussion of Ms. Meline‘s
Ms. Meline testified that she was asked to analyze surveillance video from the Blunt house to determine whether she could find an image that would be conducive to an accurate photogrammetric analysis for the case against Mr. Matthews. She and her trainee concluded that there was one still image “that would be within a reasonable margin of error” to complete the analysis. On November 28, 2017, Ms. Meline and Ms. Walker traveled to the Blunt house and used the same surveillance cameras that had captured the “questioned image.” They ensured the camera was still in the same position, overlaid the live video with the questioned image using software, aligned the stationary items such as trees in both images, and placed a height chart in the location where the suspect appeared to be standing in the questioned image. To simplify, she explained that the overlay between the questioned image and the image with the height chart was used to estimate how tall the suspect was.
Next, Ms. Meline detailed her process for estimating the uncertainty or error associated with the height measurements. She explained that the margin of error is calculated by using positional accuracy and the resolution of the imagery. Positional accuracy is determined by pixels in the image; in this case, each pixel of the questioned image represented 0.53 inches, so if they were off by one pixel in placing the height chart, the height estimate would be off by 0.53 inches. Ms. Meline estimated the suspect‘s height as 5′8″, with a margin of error of plus or minus 0.67 of an inch.
Additionally, Ms. Meline explained that along with the 0.67 inch margin of error,
In closing, the defense argued that that the photogrammetry evidence should be precluded because it was improper to tell the jury that the FBI had estimated a suspect height of 5′8″ when there were so many variables not included in the calculation. As a result, the defense argued, the evidence was significantly more prejudicial than probative,
Ultimately, the court denied the motion. The court ruled that the evidence was not unfairly prejudicial under
On appeal, Mr. Matthews contends the evidence was inadmissible under
The State contends that Mr. Matthews‘s argument that the expert‘s conclusion as stated in the report should have been excluded due to an “analytic gap” is not properly before us because the trial court did not make findings or a ruling on this particular theory when it denied the pre-trial motion. But the issue isn‘t whether the trial court ruled—what matters is whether Mr. Matthews brought “his argument to the attention of the trial court with enough particularity that the court is aware . . . what the parameters of the issue are.” Harmony v. State, 88 Md. App. 306, 317 (1991). He did.
At the time this case was in the trial court, the Frye-Reed standard still governed “the admissibility of scientific evidence and expert scientific testimony.” Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 327 (2007) (citing Reed, 283 Md. at 389). The Frye-Reed standard worked in tandem with
Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.
In the time since, the Court of Appeals rejected the Frye-Reed standard in favor of the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Rochkind v. Stevenson, 471 Md. 1 (2020). Because this case was pending on
The primary analytical difference between the two standards here—the elimination of Frye-Reed‘s focus on the acceptance of the methodology in the scientific community versus Daubert‘s look at the overall reliability of the testimony—doesn‘t shift the analysis in this case in any seismic way.9 That‘s true primarily because Mr. Matthews does not challenge Ms. Meline‘s expert qualifications or the general scientific possibility that reverse photogrammetry projection may be used to obtain the individual‘s height. Instead, Mr. Matthews‘s arguments focus on the third prong of
The purpose of this expert testimony was to measure the height of the person in the video as a way of narrowing down the identity of the shooter. The height mattered: Ms. Bragg testified that the man she saw walking past her house with a gun was 5′11″ or taller, white, and in his mid-20s; Mr. Matthews is African-American and was 5′8″, and the contemporaneous videos weren‘t clear enough to allow a distinction even between these two possible suspects. Ms. Meline concluded that the person in the video was 5′8″ with a “calculable uncertainty” of 0.67 inches, which would seem to eliminate a taller white man
Under these circumstances, the missing input variables that had not been considered in the seemingly precise height calculation prevented a reliably accurate height calculation. Put another way, the analytical gap between the data available for reverse photogrammetry projections and the conclusion Ms. Meline offered to the jury remained unbridged. Although Mr. Matthews was able to challenge Ms. Meline‘s conclusions by cross-examining her about the missing pieces, it should not have fallen to the jury to work through the science on its own. And the unreliability of the height estimate resulting from this expert testimony raises serious doubt about whether the probativity of allowing it in outweighed the danger of unfair prejudice, especially where the video itself was unilluminating and the remaining testimony so equivocal.
We hold that the trial court should have excluded Ms. Meline from testifying, on this record, to a specific height estimate, and that the error in allowing that testimony wasn‘t
JUDGMENTS OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ANNE ARUNDEL COUNTY TO PAY THE COSTS.
Notes
- Did the circuit court err in permitting Edward Hicks to testify about an allegedly inconsistent prior statement made by Rico Hicks?
- Did the circuit court err in precluding Appellant from questioning a crucial State witness about his charges that were resolved pursuant to a plea agreement before Appellant‘s trial, with sentencing postponed until after trial?
- Did the circuit court err in denying Appellant‘s motion to preclude testimony and a report pertaining to the use of photogrammetry and reverse photogrammetry projection?
The State rephrased those Questions Presented as:
- To the extent preserved, did the trial court correctly overrule the defense objection to impeaching Rico Hicks with a prior inconsistent statement?
- Did the trial court soundly exercise its discretion in controlling the scope of Joseph Tongue‘s cross-examination?
- To the extent preserved, did the trial court correctly deny the motion to preclude expert testimony concerning the height of the individual depicted in surveillance footage?
(a) Impeachment by Inquiry of the Witness. The credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at:
(1) Proving under
Rule 5-613 that the witness has made statements that are inconsistent with the witness‘s present testimony;***
(b) Extrinsic Impeaching Evidence.
(1) Extrinsic evidence of prior inconsistent statements may be admitted as provided in
Rule 5-613(b) .
(a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under
Rule 2-322 , over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. 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, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.