Bomas v. State

KRAUSER, C.J. Convicted by a jury in the Circuit Court for Baltimore City of second-degree murder and the use of a handgun in a crime of violence, appellant, Tavon Bomas a/k/a Tavon Bomar, contends that the circuit court abused its discretion in excluding the testimony of an expert witness called by the defense to opine as to the reliability of human memory, in general, and eyewitness testimony, in particular. Because we conclude that the circuit court did not abuse its discretion in so ruling, we affirm. ²⁰⁶ Background At approximately 2:00 a.m. on April 18, 2004, Detective Kenneth Bailey was stopped in traffic outside of “the Tower Lounge,” a bar on York Road in Baltimore City. Hearing gunshots, the off-duty detective saw one young African American man, approximately two to three car lengths away, shoot another African American male. The shooter then fled on foot, crossing York Road in front of the detective, who was then a car length away.

Getting out of his truck, Detective Bailey drew his weapon and began to pursue the shooter. But his pursuit was interrupted when the detective, dressed in plain clothes, was stopped by another police officer. After Detective Bailey identified himself, they both gave chase, but appellant had disappeared. A week later, in a written report of the episode, Detective Bailey described the shooter simply as a “black male.” On October 14, 2004, nearly six months after the shooting, the police arrested Jimmy Dower for possession of heroin.

At that time, Dower identified appellant as the shooter. He told the police officers that he was in the Tower Lounge on the night of the shooting, and there, he saw appellant, whom he had known “practically all his life” and whose nickname, he told police, was “Henny Low.” Inside the bar, appellant was fighting with another African American male. Dower watched as appellant then left the bar and entered a residence on the same street. A few minutes later, appellant returned with a gun and shot the victim.

After Dower identified appellant as the shooter, Detectives Richard Purtell and Ray Lasslet assembled a photographic array, which included appellant’s photograph. From that array, Detective Bailey identified appellant as the shooter. Later, the detectives met with Dower. The meeting took place at a convenience store parking lot, rather than his house, because Dower was afraid to be seen speaking to the police.

There, Dower identified appellant from a photographic array and wrote on the back of appellant’s picture: “This is H. Low. ²⁰⁷ He did the murder on York Road.” Dower then signed his name. Appellant was arrested a week later, on November 3, 2004. He initially told the officers that he was not in the vicinity of the shooting on the night that it occurred, but later admitted he was there that night and saw the shooting. On July 7, 2006, a pretrial hearing was held on appellant’s motion to introduce the testimony of Dr. David Schretlen, Ph.D. At that hearing, the doctor, an expert in the field of neuropsychology, testified regarding memory processing; the circumstances that affect “memory, encoding, retrieval and storage”; the effect that the passage of time has on memory; and the effect of stress and violent events on memory formation.

The court concluded that Dr. Schretlen’s proffered testimony “would be of no value to the jury” and denied appellant’s motion. At trial, two eyewitness identifications of appellant as the shooter were introduced into evidence, Dower’s and Detective Bailey’s. Even though Dower testified that his prior photographic array identification was not reliable because he had poor eyesight and the actual shooter had “deep dimples” (which appellant does not), his prior identification was admitted into evidence. But this identification is not relevant to the issue before us, as appellant concedes that “Dr. Schretlen’s opinions relate[d] only to eyewitnesses such as Detective Baily who had no prior contact with the suspect,” and not to eyewitnesses, like Dower, who claimed to have known appellant “practically all his life.” Detective Bailey testified concerning his prior photographic array identification of appellant and then made an in-court identification of appellant as the shooter.

After the jury convicted appellant of second-degree murder and related handgun offenses, the court sentenced appellant to a term of thirty years’ imprisonment for second-degree murder and to a term of twenty years’ imprisonment for the use of a handgun in the commission of a crime of violence. The sentences were to run consecutively. ²⁰⁸ Discussion Appellant contends that the circuit court “erred in failing to permit” him to “offer[ ] the opinions of a qualified expert, Dr. Schretlen, which would alert the jury to the known deficiencies of eyewitness identifications.” The court, he appears to claim, had little, if any, discretion to exclude such evidence. And, even if it did, the court abused that discretion, he maintains, by prohibiting Dr. Schretlen from testifying. I. The admissibility of expert testimony is governed by Maryland Rule 5-702, which states, in part: “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.” 1 In other words, “[ejxpert testimony is admissible only if it is relevant----” Bryant v. State, 163 Md.App. 451, 473 , 881 A.2d 669 (2005) (citing State v. Smullen, 380 Md. 233, 268 , 844 A.2d 429 (2004)).

And such evidence is relevant if “ ‘the jury will find the testimony helpful in resolving the issues in the case.’ ” Id. (quoting Wise v. State, 132 Md.App. 127, 135-36 , 751 A.2d 24 (2000)). The determination of whether an expert’s testimony is admissible, pursuant to Rule 5-702, lies “within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous.” Wilson v. State, 370 Md. 191, 200 , 803 A.2d 1034 (2002). And that decision, we have stated, will “seldom constitute[ ] ground for reversal.” Bryant, 163 Md.App. at 472 , 881 A.2d 669 .

In Bloodsworth v. State, 307 Md. 164 , 512 A.2d 1056 (1986), the Court of Appeals considered whether the admission of expert testimony concerning the reliability of human memory ²⁰⁹ and eyewitness identifications lies within the discretion of the trial court. Id. at 184-86 , 512 A.2d 1056 . The Court of Appeals concluded that it did. Id. at 185-86 , 512 A.2d 1056 .

Bloodsworth was charged with first-degree murder, rape, and sexual offense. Id. at 166 , 512 A.2d 1056 . At trial, a number of witnesses placed him at the scene of the crime interacting with the victim shortly before the victim’s murder. Id. at 167-69 , 512 A.2d 1056 .

To counter that testimony, Bloodsworth sought to introduce an expert who would testify “that eyewitnesses are ... confronted with ... a very difficult challenge to the memory system” and would provide the jury with a methodological “checklist ... so that they [could] essentially assess” the eyewitnesses’ testimony through “the filter of the scientist.” Id. at 177-78 , 512 A.2d 1056 . But the trial court excluded that testimony. Id. at 178-79 , 512 A.2d 1056 . It held, first, that the testimony “utterly fail[ed]” the Frye-Reed test for novel scientific or experimental evidence because the proffered expert’s testimony was not “generally] accepted] in the relevant scientific community,” id. at 179 , 512 A.2d 1056 , and, second, that the evidence would not be helpful to the jury.

Id. As to its second basis for excluding the expert’s testimony, the trial court opined: “[T]he proffer is not sufficient to persuade me ... exactly what is even being offered to the jury other than some generalized explanation of the studies that have been made.” Id. The reliability of eyewitness testimony, the trial court declared, is better tested by cross-examination than by the opinion of an expert. Id.

But it was because of a Brady violation 2 that the Court of Appeals ultimately overturned Bloodsworth’s convictions. 3 In so doing, it addressed, for the guidance of the circuit court on ²¹⁰ remand, the admissibility of expert testimony concerning the reliability of eyewitness testimony. The Court declared that the general “Maryland test for admissibility of expert testimony” applied. Id. at 184-85 , 512 A.2d 1056 . It stated: “ ‘[T]he test of admissibility of an expert’s opinion should be whether his testimony will be of real appreciable help to the trier of fact in deciding the issue presented.’ ” Id. at 184 , 512 A.2d 1056 (quoting Shivers v. Carnaggio, 223 Md. 585 , 165 A.2d 898 (1960) (internal citations omitted)).

The application of this test, it opined, is left to the sound discretion of the trial court. Id. at 185-86, 512 A.2d 1056 . Asking us to reject Bloodsworth’s embrace of this standard, appellant claims that “[t]he parameters of judicial discretion regarding the admissibility of an expert witness on eyewitness memory and identification have changed dramatically in the two decades since the Court of Appeals decided Bloodsworth .... ” Appellant advances two arguments in support of this claim. First, he contends that a later case, Simmons v. State, 313 Md. 33 , 542 A.2d 1258 (1988), “calls into question Bloods-worth’s continuing legal validity” because, in Simmons , the Court of Appeals recognized that a criminal defendant might be able to “offer [an] expert opinion[ ], notwithstanding the fact that [it] ... may [go to an] ultimate determination[ ] of witness credibility.” But that issue was not addressed by the Court of Appeals in Bloodsworth .

Moreover, it is well settled, first, by caselaw, see, e.g., Balto. & Yorktown Turnpike Road Co. v. Leonhardt, 66 Md. 70, 77-78 , 5 A. 346 (1886), and now, by rule, that expert testimony is admissible even if it involves an ultimate issue. Rule 5-704 states that expert testimony that is “otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.” Second, appellant claims that the Court of Appeals’ position in Bloodsworth should, in any event, be revisited “given the recent technological advances which have exposed the stark prevalence and consequence of erroneous eyewitness testimony” and “a national shift in the law ... [to] favor[ ] admitting ²¹¹ expert testimony concerning the inadequacies of eyewitness identifications.” In response to this argument we need say no more than that Bloodsworth is a decision of our highest court, and, if it is to be revisited, it is the prerogative of that Court, not ours, to do so. In sum, expert testimony concerning the reliability of eyewitness testimony is admissible where it “will assist the trier of fact to understand the evidence or to determine a fact in issue,” Rule 5-702, and the trial court’s determination of whether to admit such evidence will not be disturbed on appeal unless it “ ‘has clearly abused its discretion.’ ” Bloods-worth, 307 Md. at 186 , 512 A.2d 1056 (quoting Raithel v. State, 280 Md. 291, 301 , 372 A.2d 1069 (1977)).

II

We now consider appellant’s contention that the circuit court “abused its discretion in failing to permit ... the opinions of a qualified expert, Dr. Schretlen, which would alert the jury to the known deficiencies of eyewitness identifications.” At the hearing on appellant’s motion to introduce Dr. Schretlen’s testimony, Schretlen testified about the effect that the passage of time has on the formation of memory. The doctor asserted that the relationship between the passage of time and memory was not a linear one. He explained that, when a person forms a memory, “the most important increments in exposure time are those milliseconds to seconds rather than from minutes to hours” and that “[i]t only takes a few seconds for someone to encode ... pretty well.” A similar non-linear relationship exists, the doctor stated, between the time after exposure to a given phenomenon and the amount of information an individual forgets. He opined that people do not