Abruquah v. State

Circuit Court for Prince George’s County Case No. CT12-1375X IN THE COURT OF APPEALS OF MARYLAND No. 34 September Term, 2020 KOBINA EBO ABRUQUAH v. STATE OF MARYLAND Barbera, C.J., McDonald Watts Hotten Getty Booth Biran, JJ. Pursuant to Maryland Uniform Electronic Legal Materials Act PER CURIAM ORDER (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-10-27 13:35-04:00 Watts and Hotten, JJ., dissent. Suzanne C. Johnson, Clerk Filed: October 27, 2020 KOBINA EBO ABRUQUAH * IN THE * COURT OF APPEALS * OF MARYLAND v. * COA-REG-0034-2020 * No. 34 STATE OF MARYLAND * September Term, 2020 PER CURIAM ORDER The Court having considered and granted the petition for a writ of certiorari in the above-captioned case, it is this 27th day of October, 2020, ORDERED, by the Court of Appeals of Maryland, that the judgment of the Court of Special Appeals is vacated and the case is remanded to that Court with direction to remand the case to the Circuit Court for Prince George’s County, pursuant to Maryland Rule 8-604(d)(1) without affirming or reversing the judgment of the Circuit Court, in order for the Circuit Court to consider whether, in light of this Court’s decision in Rochkind v. Stevenson, No. 47 (September Term, 2019), the Circuit Court would reach a different conclusion concerning the admission of firearm and toolmark identification testimony based on the extensive hearing already conducted by the Circuit Court and such further proceedings, if any, that the Circuit Court deems necessary. Costs to be paid by Petitioner. /s/ Mary Ellen Barbera Chief Judge Circuit Court for Prince George’s County Case No. CT12-1375X IN THE COURT OF APPEALS OF MARYLAND No. 34 September Term, 2020 ______________________________________ KOBINA EBO ABRUQUAH v. STATE OF MARYLAND ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Dissenting Opinion by Watts, J., which Hotten, J., joins. ______________________________________ Filed: October 27, 2020 Respectfully, I dissent from the Majority’s decision to grant the petition for a writ of certiorari, vacate the Court of Special Appeals’s judgment, and remand (“GVR”) for reconsideration in light of Stanley Rochkind v. Starlena Stevenson, ___ Md. ___, ___ A.3d ___, No. 47, Sept. Term, 2019, 2020 WL 5085877 , at ² (Md. Aug. 28, 2020), reconsideration denied (Sept. 25, 2020).

In short, the GVR that the Majority orders is a waste of judicial resources because the circuit court has already conducted an extensive hearing over the course of six days on a motion in limine to exclude firearm or toolmark identification testimony filed by Petitioner, and the issue concerning the application of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), is not preserved for appellate review. In this case, Petitioner’s line of attack on the State’s expert opinion was based on the contention that the method that the expert used to tie him to the murder—firearms toolmark examination—was no longer generally accepted, i.e., failed to pass muster under the Frye-Reed1 standard, and Petitioner questioned the reliability of the expert’s methodology. As the Court of Specials noted, the Circuit Court for Prince George’s County “declin[ed] to hold a Frye-Reed hearing[,]” Kobina Ebo Abruquah v. State, No. 2176, Sept. Term, 2018, 2020 WL 261722 , at ⁶ (Md. Ct. Spec. App. Jan. 17, 2020), but nonetheless conducted an extensive evidentiary hearing, see id. at ¹-2.

During the hearing, the circuit court heard testimony from expert witnesses for Petitioner and the State and admitted documents concerning firearms examination into evidence. Following the hearing, the circuit court issued a written opinion and order denying Petitioner’s motion in 1 See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Reed v. State, 283 Md. 374 , 391 A.2d 364 (1978). part and granting it in part. In the opinion, the circuit court determined that toolmark examination remains generally accepted and reliable “under the Frye-Reed standard” and ruled that the expert could give an opinion as to whether bullets recovered from the victim could be attributed to a gun recovered from Petitioner, but could not state the opinion in terms of “absolute or scientific certainty[.]”2 In sum, both the circuit court and the Court of Special Appeals determined that the expert’s testimony was admissible despite Petitioner’s arguments otherwise. As a result of this Court’s GVR, the circuit court, and potentially the Court of Special Appeals, will need to spend time and effort determining whether in light of this Court’s decision in Rochkind it “would reach a different conclusion concerning the admission of firearm and toolmark identification testimony” and assessing entirely different grounds for possibly excluding the expert’s testimony than those advanced initially in the circuit court, and ones that Petitioner never raised as a challenge—namely, whether firearms toolmark examination in general, or the expert’s testimony about it in particular, satisfies Daubert.

The question in this case that both the circuit court and the Court of Special Appeals addressed is whether toolmark examination is generally accepted in the relevant scientific community and whether the methodology used by the expert was reliable. It appears that nothing in the record in this case indicates that there would be any further basis for a Daubert