Fleming v. State

RAKER, J. In this criminal case, appellant Monti Mantrice Fleming appeals his conviction for murder in the first degree. He raises three issues for our consideration: “I. Did the lower court err by using the Frye-Reed test to prohibit Fleming from cross-examining the State’s toolmark examiners about another method of tool-mark identification that they chose not to use?

II

Did the lower court err by admitting expert opinions based on a fundamental assumption and methodology ⁸⁰ that the scientific community does not generally accept as rehable?

III

Did the lower court abuse its discretion by denying Fleming’s motion for mistrial when a police detective testified that she found two of the State’s witnesses ‘to be credible?’ ” Although appellant raises interesting issues in this appeal, assuming without deciding that the trial judge erred with respect to the toolmark identification issues, this case is a textbook “harmless error” appeal and we shall so hold. We shall hold also that the trial court did not abuse its discretion in denying appellant’s motion for a mistrial. I. The Grand Jury for Howard County indicted appellant in connection with Shawn Powell’s murder. Appellant was convicted of first-degree murder, using a handgun in the commission of a crime of violence, and wearing, carrying or transporting a handgun.

We set forth the facts in great detail to put our holding in perspective. In the late evening of August 26, 2006, appellant was involved in an altercation with the victim, Shawn Powell, in the Barnside town home neighborhood in Columbia. Several people witnessed appellant hitting Shawn Powell in the head with a glass bottle, and then drawing a gun and shooting between four and six shots in the direction of the retreating Powell. Shawn Powell was found dead at the foot of a stockade fence in a nearby yard at approximately 8:00 a.m. the following day, having died as a result of a single gunshot wound to his back.

In discovery, the State indicated that it intended to call expert witnesses in the field of firearm toolmark examination to establish that a gun which appellant gave to his step-grandfather, Willie Brown, shortly after the murder, was the same weapon that fired the fatal shots. Appellant filed a motion in limine to challenge the admissibility of that testimony. ⁸¹ The State called Torin Súber and Michael Nickol as expert witnesses to link the handgun recovered from Willie Brown’s home with both shell fragments recovered from Powell’s body, and firearm cartridge cases recovered from the scene. Appellant argued that the method of firearms toolmark analysis the State’s expert witnesses used, “side-by-side, or split-screen comparative microscopic matching,” was unreliable and that the examiners should have used an alternative methodology, “consecutive matching striae” (hereinafter “CMS”). The court held a three-day Frye-Reed hearing in January of 2008.

Defense counsel cross-examined the State’s firearms identification experts regarding their professional experience and the firearms identification technique they applied. After considering the testimony of the State’s witnesses, as well as scholarly articles discussing the state of the forensic firearms analysis field, the trial court concluded that the expert testimony using the traditional comparative microscopic matching technique was admissible under Frye-Reed. The court stated as follows: “After hearing argument from both parties and considering the evidence, including the many articles on the subject, the court finds here that the State has met its burden of proof showing that the traditional pattern matching for determining forensic firearms analysis employed by the Maryland State Police is generally accepted in the relevant scientific community, and is almost exclusively used by forensic laboratories in Maryland.” The court further found that both of the State’s experts were qualified to testify as expert witnesses, concluding as follows: “Under Rule 5-702[ 1 ] ... there is sufficient factual basis from Mr. Súber and [Mr. Nickol] ... that would qualify ⁸² [them] as [experts] by knowledge, skill, experience, and training, that there is a sufficient factual basis.” The circuit court concluded that CMS is not generally accepted within the scientific community and declined to require the use of the CMS methodology under Frye-Reed, reasoning as follows: “CMS is not a predominant ... methodology. It has only been propounded since 1997 and as noted in [United States v. Diaz, No. CR 05-00167, 2007 WL 485967 , ¹¹-12, 2007 U.S. Dist.

LEXIS 13152 , at ³⁶-37 (N.D.Cal. Feb. 12, 2007) ], it is still a work in progress, a school of thought that is evolving.” At the Frye-Reed hearing, defense counsel indicated that he planned to cross-examine the State’s expert witnesses about the CMS technique during the trial on the merits, even though the witnesses did not use the CMS technique. The trial judge responded that he would be unlikely to allow this line of questioning: [DEFENSE COUNSEL]: With regard to the CMS issue solely, to the extent that Your Honor has found that it is not generally accepted, I would imagine that that would be an indication that Your Honor would sustain any objection from the State where I would say or question whether or not he has even applied that in this case. [THE COURT]: I think under my — I will hear from the State, but I think that would be consistent with my ruling. The trial commenced on January 29, 2008, before a jury in the Circuit Court for Howard County.

The State called as witnesses Shade Webb, Starlette Webb, and Kanise Lewis, each of whom was present for the altercation between appellant and Shawn Powell on the night before Powell was found dead. ⁸³ Shade Webb testified that she was in the area of the Barnside town homes on the night of Shawn Powell’s murder, visiting her mother and her younger sister, Starlette, who lived in the neighborhood. She testified that she had known Shawn Powell approximately four years, “from school and from [the] Columbia neighborhood.” She further testified that she knew who appellant was prior to the night of the incident, stating as follows: [PROSECUTOR]: And had you known Monti Fleming pri- or to that evening? [SHADE WEBB]: Not known him like we were friends, but know him from seeing him around the neighborhood. On the night of Shawn Powell’s murder, Webb met her sister at a friend’s home in the neighborhood. The sisters walked to a nearby WaWa convenience store, and upon returning, conversed with other residents of the neighborhood on the sidewalk, including Shawn Powell.

Shade testified that during or shortly after her conversation with Shawn Powell, Powell became embroiled in an altercation with appellant. She testified as follows: [PROSECUTOR]: Did you stay at that area at that time with Shawn? [SHADE WEBB]: Well, for a second. I was just asking him like what’s going on, but I didn’t know what the argument was about so I told him that I was going to walk up the sidewalk and when he got finished to just come up to the top of the sidewalk. Soon thereafter, another young man, Dougie Roberts, appeared at the scene of the altercation, and reassured Shade Webb that “everything was cool.” Shade apparently left the immediate scene of the altercation for a short but indeterminate period, and then returned to where appellant and Shawn Powell were standing.

She stated as follows: “I was still talking to Shawn and telling him to come on and they were still kind of going back and forth. All three of them were kind of going back and forth. That is when ⁸⁴ Monti kind of like told me like, ‘I’m just talking to him right quick, can you back off.’ So I just left.” Shade walked back up the sidewalk to where her sister was standing. She described watching Shawn Powell start to walk away from appellant, up the sidewalk toward Ms. Webb.

She testified that as Powell was walking away, appellant hit him in the back of the head with a bottle. She continued to watch as Shawn Powell then “hopped a fence,” and appellant did so as well. She testified as follows: [PROSECUTOR]: When the defendant hopped into the yard, what, if anything, did you see? [SHADE WEBB]: Monti pulled out a gun out of his pocket. [PROSECUTOR]: I’m sorry? [SHADE WEBB]: Monti pulled a gun out of his pocket. [PROSECUTOR]: And did you see from which pocket he pulled it out of? [SHADE WEBB]: Right. [PROSECUTOR]: His right pocket? [SHADE WEBB]: Yes. [PROSECUTOR]: And what happened then? [SHADE WEBB]: He fired it. [PROSECUTOR]: Did he hold — how did he hold it? [SHADE WEBB]: He held it in his right hand and shot four. [PROSECUTOR]: And he shot — in which direction did he shoot? [SHADE WEBB]: Straight towards Shawn. * * * [PROSECUTOR]: And did [Shawn Powell] stop, did he go on— [SHADE WEBB]: No, he kept running. [PROSECUTOR]: What did he do? [SHADE WEBB]: He kept running. ⁸⁵ Shade Webb testified that after appellant fired shots in the direction of Shawn Powell, he passed close by her before fleeing the scene. Shade testified as follows: [PROSECUTOR]: [Appellant walked] [d]own the sidewalk?

And was that in a direction towards or away from you? [SHADE WEBB]: Towards me. [PROSECUTOR]: And was there a gun in his hand at this point? [SHADE WEBB]: It was in his hand. Once he got — well it’s not in the picture, but it’s like a couple of porches, the steps where Kanise and Taylor was, he put it back in his pocket. [PROSECUTOR]: And when the defendant walked around the fence, how close were you to him? [SHADE WEBB]: As close as me and the sheriff are. [PROSECUTOR]: Indicating the sheriff to your left. [THE COURT]: Four to five feet. Starlette Webb, who was seventeen years of age at the time of her testimony, was present on the night of the altercation between appellant and Shawn Powell. Like her older sister Shade, she testified that from her vantage point on the sidewalk in the Barnside neighborhood, she witnessed the altercation, and stated, “I seen Monti hit Shawn on the back of the head with a — like a bottle.” She stated that shortly thereafter, appellant pulled out a gun and fired “towards Shawn,” approximately five times.

She testified as follows: [PROSECUTOR]: And what did he do after he put the gun in his pocket? [STARLETTE WEBB]: He started to walk away, but he came like towards my direction. [PROSECUTOR]: And did he — how close were you to him when he came towards you? ⁸⁶ [STARLETTE WEBB]: I would say close; he walked past me. [PROSECUTOR]: He walked past you? [STARLETTE WEBB]: Yes. [PROSECUTOR]: And did he say anything? [STARLETTE WEBB]: Yes. [PROSECUTOR]: And what did he say? [STARLETTE WEBB]: He said, “I’m not scared of none of these [expletive] out here.” Kanise Lewis, who was just a few feet from appellant when she saw him pull out the gun, testified as follows: [PROSECUTOR]: Now, the Defendant hopped over the fence into the yard? [KANISE LEWIS]: Uh-huh. [PROSECUTOR]: And what did you see then, Ms. Lewis? [KANISE LEWIS]: I seen him just raise [his] arm and start shooting towards the direction that Shawn walked. Lewis positively identified appellant from a photo array that the police presented to her. The State called as a witness appellant’s step-grandfather, Willie Brown, who testified that appellant visited him and gave him a handgun in the days following Shawn Powell’s murder. He stated that appellant arrived at his home for this purpose at approximately 11:00 a.m. on August 29, 2006, accompanied by a friend.

Howard County police evidence technician James Roeder testified to finding a trail of blood droplets linking the general area in which Shawn Powell was seen when he was running from appellant with the front yard garden where Powell was found dead. In addition, the State and defense stipulated that DNA analysis indicated that this blood was attributable “only” to Shawn Powell. Roeder stated that he recovered six shell casings from the crime scene. ⁸⁷ Howard County detective Vicki Shaffer testified that during her investigation of Shawn Powell’s killing, both Webb sisters identified appellant based on a single photograph the police presented to them. Defense counsel questioned the witness concerning the potentially suggestive nature of this single-photo identification method, and the following exchange transpired: [DEFENSE COUNSEL]: And I know you’ve indicated that you believe that Starlette Webb knew Monti Fleming, isn’t that correct? [DET.

SHAFFER]: That was my understanding, yes. [DEFENSE COUNSEL]: And typically — and you make this decision, obviously, investigatively, but when you want to make sure the person isn’t confused or may not wrongfully identify somebody, you use a photographic array so that the person isn’t just shown one photograph, isn’t that correct? [DET. SHAFFER]: Not if — not if they can assert that they have historical knowledge of who the person is. [DEFENSE COUNSEL]: And because they say it, you just assume that they do, correct? [DET. SHAFFER]: I found them to be credible. Defense counsel moved immediately for a mistrial based on this response by Det.

Shaffer, which he characterized as an attempt by her to “bolster” the credibility of the State’s other witnesses. The court declined to grant a mistrial, reasoning as follows: “[Defense counsel’s] question was ... if someone is going to be confused ... you use a photo array and not show them one [photo], and [Det. Shaffer] is saying I didn’t do it because of historic knowledge, and I found [Shade and Starlette Webb] even to be credible. She may have used the word ‘witness,’ but I took it in the context of her response to the question as to why she didn’t use the photo array.

In other words, she’s saying ... that the witness here had prior knowledge and that ... Starlette knew, had known Mr. Fleming previously, and that she’s saying that’s ⁸⁸ the reason why she was verifying it. So I would deny a mistrial at this point. I’d be happy to give a limiting instruction at this point.” Appellant declined the court’s offer to supply a limiting instruction, stating that it would only serve to accentuate the harm flowing from Det.

Shaffer’s statement. At trial, defense counsel proposed to cross-examine the expert witnesses in connection with the “alternative” CMS firearms toolmark analysis technique. The court did not permit this line of cross-examination, and defense counsel proffered as follows: [DEFENSE COUNSEL]: I would proffer that I would ask him about [his] experience and his understanding [inaudible] training [inaudible] CMS, and the substantive knowledge that he — that he has regarding it, and I would incorporate into that proffer the testimony that was generated at the motions hearing. [THE COURT]: Okay ... you’d be asking about the science and literature ... you’d be asking, one, if he’s aware of that? [DEFENSE COUNSEL]: I would proffer that I would ask questions concerning his education, training and experience regarding CMS and his substantive knowledge about the methodology. [THE COURT]: Yeah, I think to be ... consistent, and as I understand the application of Frye-Reed, I have to be consistent with my ruling that we spent some time on. I wouldn’t permit a specific ... reference to [CMS] ... as a school of thought or something that may be recognized.

As I indicated, though, I think questions concerning the nuts and bolts of ... compilation of results, and statistical analysis ... can be asked. But I don’t think it can be— referenced that ... there’s a school of thought out there that may be recognized in other jurisdictions. ⁸⁹ The State’s case against appellant consisted of eyewitness testimony from witnesses who knew appellant, the circumstantial evidence from appellant’s step-grandfather with respect to the handgun, the blood evidence, and the firearms identification evidence. The defense at trial did not appear to be the classic “who dunnit” but rather, whether appellant, a fifteen year-old at the time of the shooting, harbored the specific intent to harm. In closing argument, defense counsel made clear to the jury that the defense was not contesting whether appellant was the shooter, but instead, asked the jury to consider whether appellant really intended to harm the victim.

Accordingly, defense counsel conceded explicitly that appellant was criminally liable for Shawn Powell’s death, in some degree. Defense counsel’s objective was to avoid a conviction for first-degree premeditated murder. His closing argument proceeded as follows, in relevant part: “There is evidence that certainly, strongly suggests that Monti Fleming on the 26th of August, 2006 had a gun, and that he fired that gun, and that as a result of that Shawn Powell has died. I acknowledge that.

Starting at that point, I ask you now to listen to me as to why the statement that I made at the beginning of this trial is true. That this young fifteen year-old, who had a gun in his hand, didn’t have a premeditated, willful, and deliberate specific intent to kill Shawn Powell. I think the inconsistencies become important because it gets to the issue of what it is that I truly believe at some point you’re going to find Monti Fleming guilty of. If it was as simple as first-degree murder, boom, we wouldn’t need a trial.

I didn’t stand up here at the beginning of this trial and say ladies and gentlemen of the jury, at the end of the evidence ... Pm assuring that you will find my client not guilty of each and every charge. As I said, I’m a human ⁹⁰ being, I’m a realist. I sat through the same trial that you did.

There is a presumption of innocence that carries through the entire trial. That soon will fade away, and I’m confident, unfortunately, I am confident that there will be in some ways a presumption of guilt based on the evidence. The issue that you will decide is what it is that Mr. Fleming is guilty of. There is a reaction that each of you will have.

It’s got to be offensive. No matter whether the person is fifteen years of age, or twenty-five years of age or forty-five years of age, that a person would take a firearm out of his pocket and start shooting in the direction of another human being. That I acknowledge. But, see, now I have to bring us all back to this issue of the responsibilities of being a juror....

The reason that that’s important is because of the degrees that you’ve been given. That you have this impulsive act by a fifteen year old and there is nothing to suggest otherwise. [I]f he wants to kill Shawn Powell, he can keep moving. He can keep tracking him down and he can actually stand over him and do the job____ Instead he hops over a fence, he pulls out a gun and starts shooting. Now tragically, one of the bullets does strike Shawn Powell.

So that all goes into the ultimate decision that you make. Not that was there a death, and did Monti Fleming cause the death of Shawn Powell. So, as I said, you’re going to make that conclusion. You’re going to reach that conclusion very quickly, because the evidence strongly supports that.

Now, I do believe that you’re going to come to a conclusion and I’ve said this, that Monti Fleming discharged a fire ⁹¹ arm, and as a result of that Shawn Powell then was — he died. It’s tragic, and I’m sorry that it happened. [I] believe and I know that the facts that have been given to you support a conclusion that Monti Fleming is responsible for the death of Shawn Edward Powell. But it does not, and it cannot support a conclusion that it was premeditated, willful and deliberate. I ask that the fact that the jury instructions and the law in this State that has been given to you in the form of jury instructions, give to you what it is that ultimately your conclusion will be.

And it is that there was a death; Monti Fleming was responsible for it, but it was not premeditated, willful or deliberate. [T]he facts in this case combined into law will allow you the benefit of making a very difficult decision, but the right decision. And that is that Monti Fleming is not guilty of premeditated first-degree murder, but he is responsible for the death of Shawn Powell. Whether that’s second degree murder or involuntary manslaughter will be within your decision and your domain. Although Monti Fleming at the age of fifteen did something that is regretful and terrible and tragic, he didn’t willfully with deliberation and premeditation want to kill Shawn Powell, but unfortunately he did.

For that he will be convicted of a crime. That crime should not be premeditated first-degree murder. Thank you.” Appellant was convicted of first-degree murder, use of a handgun in the commission of a crime of violence, and carrying a handgun. The court sentenced appellant to a term of life imprisonment, with all but fifty years suspended, on the first-degree murder count; a consecutive twenty-year term of incarceration, with all but five years suspended, for the use of ⁹² a handgun in a violent felony; and a concurrent five-year term of incarceration for wearing and transporting a handgun.

The court merged the remaining lesser-included offenses for sentencing purposes. Appellant filed a timely notice of appeal to this Court.

II

We consider the issues presented by appellant in inverse order, and address first his argument that the trial court erred in not granting his motion for a mistrial when Detective Shaffer stated that she found State witnesses Shade and Starlette Webb “to be credible.” Initially, we must address the State’s contention that the matter has not been preserved for appellate review, because defense counsel refused the court’s offer to provide a limiting or curative instruction. When the circuit court declined to grant appellant’s motion for a mistrial, it did so in the context of the following discussion: [THE COURT]: So I would deny a mistrial at this time. I’d be happy to give a limiting instruction at this point or— [DEFENSE COUNSEL]: Excuse me, Your Honor. I don’t think it will adequately address it.

But in any event, for the record in the future, I’m not asking for [a] limiting instruction because I had requested, as well as the State, a credibility of witnesses instruction be presented. So, therefore, rather than highlight to the jurors at this time to a limiting instruction, I think the same information will be conveyed at a later time, and I’m not attempting to waive the issue I’m raising. Obviously, the court has denied a mistrial. The court has inquired whether or not I’d like a limiting instruction.

I think a limiting instruction would only alert the jurors as to the information that I have moved for mistrial on, and in the event the appellate court believes that by not asking for a limited instruction, I’ve actually waived the issue and sort of eliminated my request for a mistrial, I want the record to adequately reflect that I ⁹³ believe that the credibility of witness instruction ... will be the same ... information— [THE COURT]: That will be given at the end. [DEFENSE COUNSEL]: And so therefore, rather than having a limiting instruction at this time, the credibility of witness instruction will address my concerns rather than ask for a limiting instruction at this time. The State maintains that because defense counsel strategically declined a “curative instruction,” the issue is not preserved for appellate review. The State’s view as to curative instructions and waiver is wrong. We hold that the issue is preserved for appellate review.

The Court of Appeals has addressed a parallel situation, and held that an objection to the admissibility of the contested evidence was not waived. The Court reasoned as follows: “[W]e must consider the State’s contention that the defendant waived the right to raise the issue of other crimes evidence because defense counsel refused the trial judge’s offers to give a limiting instruction. The State argues that for strategic reasons defense counsel chose to ‘transform an adverse ruling that could have been given a limited effect into a general defeat in hopes of turning it to his advantage at trial or on appeal.’ We fail to see, however, how this decision not to accept the instruction constitutes a waiver. It was clear to defense counsel that the proposed instruction could have had the undesirable effect of highlighting the purposes suggested by the trial judge: intent, knowledge, common scheme, or explanation for not having pled guilty.” Terry v. State, 332 Md. 329, 333-34 , 631 A.2d 424, 426 (1993) (emphasis added).

A defendant is not required, as a matter of law, to agree to a limiting instruction at the risk of waiving an issue for appellate review. A trial court may, and sometimes should, give a curative instruction on its own. Each case will be reviewed on its own merit, but counsel’s tactical decision to minimize the damage by avoiding emphasis of the statement will not be considered a waiver of the issue. ⁹⁴ We turn now to the merits of the question whether the trial court abused its discretion in declining to grant a mistrial based on Det. Shaffer’s statement that she found the Webb sisters to be “credible.” A trial court may grant a mistrial where such a measure is “necessary to serve the ends of justice.” Jones v. State, 310 Md. 569, 587 , 530 A.2d 743, 752 (1987).

The defendant bears the burden of showing that the prejudice arising from the trial court’s error demands the declaration of a mistrial. Hunt v. State, 312 Md. 494, 503 , 540 A.2d 1125, 1129 (1988). This Court reviews a trial court’s decision to decline to grant a mistrial under an abuse of discretion standard. See Walker v. State, 373 Md. 360, 378 , 818 A.2d 1078, 1088-89 (2003).

Appellant claims that the trial court erred in declining to grant a mistrial based upon Det. Shaffer’s “bolstering” of two other State’s witnesses, Shade and Starlette Webb, because her statement that she found the sisters to be “credible” invaded the exclusive role of the jury to determine the credibility of witnesses. Appellant argues that this experienced detective must have known better than to inject her own opinion as to witness credibility, and that it was probably a purposeful statement calculated to influence the jury. The State argues that the detective’s response was an appropriate one in light of the question asked, and that her statements were not calculated to “bolster” improperly the credibility of Shade and Starlette Webb.

Therefore, the State argues, the trial court did not abuse its discretion in declining to grant a mistrial. The detective’s comment arose in the context of defense counsel probing the detective’s reason for showing a single photograph, instead of a photographic array, to Shade and Starlette Webb. Her reason for showing a single photo was that she believed the witnesses knew appellant prior to the shooting incident. Counsel asked her the following question, eliciting the following response: [DEFENSE COUNSEL]: And because they say [that they know the suspect], you just assume that they do, correct? ⁹⁵ [DET.

SHAFFER]: I found them to be credible. Defense counsel objected immediately, arguing that Det. Shaffer’s statement “bolstered” the credibility of Shade and Star-lette Webb. The following discussion transpired: [DEFENSE COUNSEL]: Your Honor, I’m going to move for a mistrial based on this witness’s response, which was an effort ... it only required a yes or no answer.

It didn’t require a “I found her to be credible.” And so as a result of her making an unsolicited effort to try to bolster the testimony of the State’s witnesses, I’m moving for a mistrial, Your Honor. [PROSECUTOR]: Certainly, the State would be opposed to that request, Your Honor. I would point out that the line of questioning was limited to the — as Detective Shaffer points out, the historical knowledge of the Defendant. She did not comment on the credibility of the witnesses as to the event that occurred. [THE COURT]: Let me make sure — you’re saying your basis is because of her comment that she found her to be a credible witness. [DEFENSE COUNSEL]: She says the witnesses are credible. [THE COURT]: I mean, that certainly is I think permissible, putting it in context of what was being asked, I think that’s an explanation that I think it can be cleared up. I’ll give you the opportunity to clear it up.

You can renew it if you feel it isn’t done appropriately. [DEFENSE COUNSEL]: It’s inconsistent with my request for a mistrial and, and ultimately the Court — I guess I first, would ask the Court to rule on my request for a mistrial. [PROSECUTOR]: Your Honor, I don’t think that in any way it could be misconstrued that Detective Shaffer is vouching for the credibility of the information that was ⁹⁶ provided to the jury during the course of this trial. Certainly, she didn’t hear it and she wasn’t in the courtroom. ... * * * [THE COURT]: I certainly agree. I mean, it was a response. Your question was basically don’t ... you typically think — if someone is going to be confused, you use a photo array and not show them [only] one [photo], and she’s saying I didn’t do it because of historic knowledge and I found her even to be credible.

She may have used the word “witness” but I took it in the context of her response to the question as to why she didn’t use the photo array. [THE COURT]: So I would deny a mistrial at this time. I’d be happy to give a limiting instruction at this point____ The detective’s