Mack & Cheeks v. State

Martinez Mack v. State, No. 2813, Arthur Cheeks v. State, No. 2836 (Consolidated) of the 2018 Term. Opinion by Moylan, J. UNLAWFUL POSSESSION OF FIREARMS – PANDEMONIUM – THE DEFENESTRATION OF MIDDLE GOVANS – MASS EXODUS – THE CONTENTIONS – OPINION TESTIMONY, LAY AND/OR EXPERT – RAGLAND V. STATE – JOHNSON V. STATE – WHO GETS TO MAKE THE CLOSE CALLS? – AN ARGUENDO HYPOTHETICAL TIMES TWO: HARMLESS ERROR – ENHANCED SENTENCING AND REQUIRED NOTICE – AN ILLEGAL SENTENCE: IN THE SIMPLE SENSE AND IN THE PLUPERFECT SENSE – NON-PRESERVATION SQUARED – A FAMILIAR ACE IN THE HOLE: INCOMPETENCE OF COUNSEL – RELEVANCE AND MINIMALISM – A NEED FOR DISCIPLINED APPELLATE ADVOCACY – “PRAISE THE LORD AND PASS THE AMMUNITION” – AN ARGUENDO ALTERNATIVE Circuit Court for Baltimore City Case No. 118113017 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2813 and No. 2836 (Consolidated) September Term, 2018 _____________________________________ MARTINEZ MACK V. STATE OF MARYLAND ARTHUR CHEEKS V. STATE OF MARYLAND Meredith, Berger, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Moylan, J. Pursuant to Maryland Uniform Electronic Legal ____________________________________ Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-01-31 13:52-05:00 Filed: January 31, 2020 Suzanne C. Johnson, Clerk The appellants, Martinez Mack and Arthur Cheeks, were jointly tried in the Circuit Court for Baltimore City by a jury, presided over by Judge Althea M. Handy. The jury convicted both appellants of 1) possession of a firearm after having been convicted of a disqualifying felony, 2) possession of a handgun on his person, and 3) possession of ammunition.

Each appellant has filed a separate and timely appeal, but this Court has consolidated the two appeals for purposes of oral argument and opinion. Pandemonium The police approached 5404 Midwood Road on March 13, 2018, at approximately 6:00 p.m. to execute a “No knock” search and seizure warrant. Officer Jeremy Zimmerman led a team of five officers through the front door of the house and then through the door of the first-floor apartment that was the precise target of the search. As the ramrod hit the outside door and the searching team, with a single voice, proclaimed, “Police!

Search warrant!”, pandemonium ensued on the inside as a rogue’s gallery of guilty consciences bolted for the escape hatch. The Defenestration of Middle Govans Conventional wisdom holds that the celebrated Defenestration of Prague in 1618 sparked the Thirty Years War (1618-1648). The lesser defenestration of 2018 now before us, albeit less earthshaking than its 400-year-old predecessor, was no less spectacular. The trigger was the “No-knock” entry of the police through the front door.

As the police ramrod hit that portal, 5404 Midwood Road figuratively exploded. The rupture point was the rear window, as fleeing mountebank after fleeing mountebank, each with handgun in hand, burst forth from that sally-port into a Govanstowne backyard. Mass Exodus As the heavy infantry hit the front of the house, Lieutenant Charles James and Sergeant Michael Mercado were deployed “to cover the back door.” They were not yet quite on station, however, when the mass exodus fell full upon them. The first fleeing mountebank to hit the ground was the appellant Mack.

Lieutenant James and Sergeant Mercado were still running toward the rear entrance when Mack “ran across [their] path with a gun in his hand.” Sergeant Mercado recognized Mack, but it was Lieutenant James who took off after him, first over a fence and then across an empty field. The lieutenant failed to keep pace and Mack, at least temporarily, got away. The steeplechase and marathon, however, had not totally been in vain. In carefully retracing his steps across the empty field, Lieutenant James spotted on the ground, precisely in the line of earlier flight, a “silver-colored revolver.” It was a .357 Magnum with five cartridges in its chamber.

They became, respectively, State’s Exhibits 14 and 15. Meanwhile, back in the backyard, the second leg of the relay was already afoot, nothwithstanding the fact that the runner dropped his .32 caliber baton. As first the appellant Mack and then Lieutenant James were clearing the fence, Sergeant Mercado saw “another individual at the window… trying to get out.” Sergeant Mercado took note of the “butt of a firearm, the handle.” He could not honestly remember whether the butt of the gun was “in his dip or in his hand.” As he momentarily turned to see Lieutenant James going over the fence, however, he heard a “metallic clank” and looked back to see the “same firearm” hit the pavement in front of him. He also saw Cheeks fall to the floor of the alleyway but immediately rise up again to run down the alley.

Sergeant Mercado 2 attempted to give chase but could not keep up. Sergeant Mercado broadcast a description of a fugitive wearing a “blue hoodie” and “light-colored jeans.” Shortly thereafter, the sergeant heard via radio that a suspect had been detained. He responded to the location and identified the detainee as the man he had been chasing, the appellant Cheeks. Sergeant Mercado knew it was Cheeks because he “recognized his face and skin tone” and saw “scratch marks on his hand from where he had fallen.” He also noticed that Cheeks was breathing “pretty hard”, a tell-tale symptom of a well-run race.1 The legal sufficiency of the evidence to support the convictions is not challenged by Cheeks on this appeal.

The Contentions We are presented with a total of four appellate contentions. Appellant Cheeks, alone, raises two contentions: 1. The trial court erred in permitting an officer, without being qualified as an expert, to testify that “surfaces that are coarse or rubberized or uneven typically do not yield latent prints”; and 2. The trial court erred in imposing an enhanced sentence for wearing, carrying, or transporting a handgun where the State failed to provide pre-trial notice of its intention to seek an enhanced penalty.

Appellant Mack, alone, raises the two other contentions: 3. The trial court erred by admitting evidence describing Mack as being under surveillance and the target of an investigation and search warrant by a drug enforcement unit, because a) such evidence was not relevant to any contested issue, b) it was hearsay evidence of “other crimes”, and c) it was unfairly prejudicial; and 1 The third of the musketeers to come out of the window was neither caught nor identified. The true identity of Aramis remains a cold case. 3 4. The State failed to prove an essential element of the ammunitions charge because it did not present evidence that any of the cartridges contained “explosive or incendiary materials designed and intended for use in a firearm”.

Opinion Testimony, Lay And/Or Expert The first contention of the appellant Cheeks is that the lead police investigator, Officer Zimmerman, was erroneously permitted to offer an expert opinion without having been qualified to do so. Officer Zimmerman described how after the conclusion of the raid on 5404 Midwood Road, he and the rest of the raiding party retired to the Northern District Station to process the evidence. Officer Zimmerman was a five-year veteran with the Baltimore City Police Department, assigned to a District Action Team charged with enforcing drug laws and looking for violent offenders and other handgun crimes. The two guns that had been recovered were photographed.

The following colloquy then occurred: [THE STATE]: And can you, in terms specifically in terms of did you receive any training in terms of fingerprint or latent fingerprints, how to gather, how to preserve, what they are or anything like that? [ZIMMERMAN]: Yes. [THE STATE]: Can you describe what your training was relating to fingerprints and latent fingerprints? [ZIMMERMAN]: Sure. We’re trained on the types of surfaces that are most likely to yield a latent print, just a fingerprint left behind from the oil residue on your fingers. A fingerprint is unique to every individual, so, it can be used to identify people. The importance of evidence preservation.

So, wearing latex gloves when you’re handling things. Trying not to touch surfaces where latent prints might be available. [THE STATE]: You mentioned that you got some training about different types of surfaces as it relates to, can you be more specific about what you’re referring to? 4 [ZIMMERMAN]: Sure. Surfaces that are coarse or rubberized or uneven typically do not yield latent prints. [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Overruled.

(Emphasis supplied). With reference to that exchange, the appellant Cheeks now contends, “As Officer Zimmerman was not qualified as an expert, he should not have been permitted to testify about the types of surfaces likely to yield latent prints.” Cheeks relies on Maryland Rule 5-702, Testimony by experts, which provides: 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. (Emphasis supplied.) The precise proposition under scrutiny, of course, is Officer Zimmerman’s opinion that: SURFACES THAT ARE COARSE OR RUBBERIZED OR UNEVEN TYPICALLY DO NOT YIELD LATENT FINGERPRINTS.

The entire content of the significant legal argument now before us is based on two words and not a syllable more: [DEFENSE COUNSEL]: OBJECTION. THE COURT: OVERRULED. 5 In supposing a cogent reason for defense counsel’s objection and in proffering a feasible rationale for the trial judge’s overruling of that objection, we rely, of necessity, on reasonable inference. The gist of the debate was by no means loud and clear. Ragland v. State Cheeks relies almost exclusively on the opinion of the Court of Appeals in Ragland v. State, 385 Md. 706 , 870 A.2d 609 (2005).

That is a very reasonable reliance. The probing analysis of Judge Raker in that case is the indispensable point of departure for any meaningful examination of the ambiguous borderland between a lay opinion pursuant to Rule 5-701 and an expert opinion pursuant to Rule 5-702. Within that troubled No-Man’s- Land, the choice of how to qualify the testimony was frequently not a clear-cut binary one. It was, rather, the ambiguously disturbing option of which way to turn when two ostensibly diverging rules, and two diverging justifications, overlapped.

It was here, for many years at least, that either rule might reasonably be relied upon to resolve the case at hand. Judge Raker’s opinion in Ragland has now in major measure eliminated that heretofore vexing overlap. Ragland is where every modern analysis must begin. In setting the stage, the Ragland opinion described the evidentiary border zone as a strategically sensitive area: The issue presented in this case lies at the intersection of two Maryland evidentiary rules governing opinion testimony.

That issue is as follows: Where a witness has first-hand knowledge of the events that form the subject of his or her testimony, may the witness offer, as “lay opinion testimony,” opinions formed about those events based on specialized knowledge, skill, experience, training, or education? 385 Md. at 716 . (Emphasis supplied.) Ragland went on: 6 The language of the two Rules thus divides the universe of opinion testimony into two categories, each bearing restrictions that the other does not. 385 Md. at 717 . (Emphasis supplied.) Just as Rule 5-702, Testimony By Experts, supra, covers part of the field of opinion testimony, another part of that field is covered by Rule 5-701, Opinion Testimony By Lay Witnesses: If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. (Emphasis supplied.) Judge Raker’s opinion, 385 Md. at 717 , at the outset described and contrasted the two forms of opinion testimony: Expert opinion testimony is testimony that is based on specialized knowledge, skill, experience, training, or education.

Expert opinions need not be confined to matters actually perceived by the witness. Lay opinion testimony is testimony that is rationally based on the perception of the witness. (Emphasis supplied.) To render an expert opinion pursuant to Rule 5-702, the witness must be qualified as an expert as a result of “knowledge, skill, experience, training, or education” and must be expressly accepted by the trial court as an “expert.” The expert, on the other hand, need not be testifying about something that the expert has personally observed or experienced. The expert opinion may be in response to hypothetical questions posed by counsel. 7 To give a lay opinion pursuant to Rule 5-701, by contrast, the witness must be testifying on the basis of personal perception.

In probing for the essence of a “lay opinion,” Ragland, 385 Md. at 717-18 , quoted with approval from the United States Court of Appeals for the Third Circuit. The United States Court of Appeals for the Third Circuit offered a helpful explanation of lay opinion testimony in Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190 (3rd Cir.1995), a case cited favorably in the Advisory Committee's note to the 2000 amendment to Fed.R.Evid. 701, discussed infra. The court stated as follows: “The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences....

Other examples of this type of quintessential Rule 701 testimony include identification of an individual, the speed of a vehicle, the mental state or responsibility of another, whether another was healthy, the value of one's property.” Id. at 1196-98 . (Emphasis supplied.) The dichotomy between Rule 5-701 and Rule 5-702 has been on most occasions relatively simple to handle. The dichotomy between qualifying to give a lay opinion and qualifying to give an expert opinion has been on most occasions similarly relatively simple to handle. On rarer occasions, however, a complicating factor that had absolutely bedeviled analysis in this area, at least until the filing of Ragland v. State on March 18, 2005, was that qualifying to give a lay opinion and qualifying to give an expert opinion were not mutually exclusive phenomena.

When a witness qualified to give but one type of opinion, lay or expert, that occasioned no academic headache. What, however, was the evidentiary 8 bottom line when the same witness qualified to give both types of opinion? Ragland posed the problem: This bisection is imperfect, however, because at least one class of opinions potentially falls within both categories. A witness who has personally observed a given event may nonetheless have developed opinions about it that are based on that witness's specialized knowledge, skill, experience, training, or education.

The question then becomes whether the fact of personal observation will permit admission of the opinion by a lay witness under Rule 5-701, or whether the “expert” basis of the opinion will require compliance with Rule 5-702 and admission as expert testimony. 385 Md. at 718 . (Emphasis supplied.) There is in that situation an analytic speed bump that can be troubling when we are not expecting it. The word “witness” may be a monolith, but the things that the monolithic witness may do are pluralistic. To be entitled to render two distinct types of opinion necessarily entails the successful passing of two distinct types of qualifying examination.

Although such polymaths do exist, the successful passing of the bar examination, e.g., does not ipso facto entitle one to practice dentistry. A lawyer, however, if so inclined, is free to take the dental boards. A lay witness, if so inclined, is free to aspire to status as an expert witness. Two types of opinion rendering, however, necessarily contemplate the satisfying of two modes of qualification.

To qualify, via personal perception, to render a lay opinion does not exempt one from having to qualify, via “knowledge, skill, experience, training or education,” in order to render an expert opinion. Two very different missions require two very different sets of skills. The “witness” may be in the singular but the types of opinion to be rendered and, hence, the qualifying requirements are in the plural. This, in 9 a nutshell, is the salutary clarification that Ragland v. State has brought to the law of opinion testimony.

The value of Ragland v. State is not that it has changed the law respecting opinion testimony. It is, rather, that it has clarified the law with respect to opinion testimony. That does not diminish its value, for the law respecting opinion testimony was badly in need of clarification, in Maryland and elsewhere. As we have been laboring herein to establish, the focus should always have been on the difference between a lay opinion and an expert opinion and not on the difference between a qualified witness and an unqualified witness.

Qualified to do what? For a witness merely to qualify to give one type of opinion does not automatically qualify that witness to give the other. A witness who is qualified, but only to do something else, is, for present purposes, unqualified. In using language carelessly, it is all too easy to conclude that a “qualified witness” for one purpose is a “qualified witness” generally.

A qualified plumber, however, is obviously not a qualified neurosurgeon. The semantic slippage is in using the adjective “qualified” promiscuously. The linguistic sin is in letting the adjective stand alone. That was always logically implicit.

Perhaps, however, it was too deeply and subtly implicit. What the amendment to Federal Rule of Evidence 701 did in 2000 and what Ragland did in 2005 in recognizing that amendment as binding in Maryland was to make expressly explicit what had theretofore always been only logically implicit. How then did this clarification come about? As the Court of Appeals had recognized in Robinson v. State, 348 Md. 104, 118 , 702 A.2d 741 (1997), Maryland Rule 5-701 was 10 at that time, except for minor stylistic changes, “identical to Federal Rule of Evidence 701.” Ragland, 385 Md. at 720 , further observed: Because of this identity between the two rules, judicial decisions construing Fed.R.Evid. 701 often provide persuasive authority for the interpretation of Md. Rule 5-701.

(Emphasis supplied.) See also Perry v. State, 381 Md. 138, 145-146 , 848 A.2d 631 (2004); Beatty v. Trailmaster, 330 Md. 726 , 738 n. 8, 625 A.2d 1005 (1993). The federal caselaw, prior to 2000, was not entirely free of confusion. One view of the qualification required in order for a witness to testify to an opinion was that the type of opinion, expert or lay, and the antecedent qualification necessary to render such an opinion, expert or lay, had to coincide. That view was generally referred to as the “narrow view.” That view, coincidentally, is clearly the position taken by Maryland today, post Ragland, and the position that, we are arguing, was always logically implicit.

Judge Raker’s opinion in Ragland described that view. A review of the federal cases interpreting the relevant federal rules reveals that the question of whether a particular witness must be designated as an expert and qualified as such in order to testify about a particular subject has been the subject of debate and disagreement among the federal courts. The more narrow view required that a witness whose testimony could be admitted as expert testimony under Federal Rule 702 must be qualified and received as an expert before the testimony may be admitted. See Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200, 203 (4th Cir.2000) (holding that Fed.R.Evid. 701 does not permit a lay witness to testify about matters that are predicated necessarily on “some specialized knowledge or skill or education that is not in the possession of the jurors”); Randolph v. Collectramatic, 590 F.2d 844, 846 (10th Cir.1979) (holding that Fed.R.Evid. 701 does not permit a lay witness to express an opinion as to matters that are beyond the realm of common experience and that require the special skill and knowledge of an expert witness).

The rationale underlying this narrow approach is that lay witnesses may testify regarding their direct perceptions of events but that opinions or inferences that rely on scientific, technical, or 11 specialized knowledge must be excluded unless the witness is qualified as an expert. 385 Md. at 720-21 . (Emphasis supplied.) There was also abroad prior to 2000, however, another point of view, generally referred to as the “more liberal” or “broad” view. It held that as long as the witness was qualified to give an opinion, typically a lay opinion, that witness was thereby authorized to give an expert opinion. One qualification as an opinion giver fit all sizes.

This was an easy conclusion to arrive at by those who did not think too precisely. The Ragland opinion also described this “broad” approach. The more liberal or broad view holds that lay witness testimony may include opinions predicated on specialized knowledge or training so long as the testimony is rationally based on the personal perception of the witness. 385 Md. at 721-22 . Congress eliminated this pocket of uncertainty in 2000 by amending Federal Rule of Evidence 701 by expressly adding to the rule the provision that a witness “not testifying as an expert” was not qualified to give an opinion “based on scientific, technical, or other specified knowledge within the scope of Rule 702.” Judge Raker’s opinion in Ragland described the process.

The issue was settled in 2000, when Congress amended Fed.R.Evid. 701 to address expressly the concerns and debate about the meaning of the rules. Before the amendment, the texts of Fed.R.Evid. 701 and 702 did not address the question of whether lay witnesses could express opinions on those subjects that would require specialized knowledge or training. Following the 2000 amendment, Fed.R.Evid. 701 expressly states that lay witnesses may not offer testimony that is “based on scientific, technical or other specialized knowledge within the scope of Rule 702.” The Advisory Committee's note to Rule 701 states that “Rule 701 has been amended to eliminate the risk that 12 the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.” 385 Md. at 722 . (Emphasis supplied.) That the 2000 amendment to Federal Rule of Evidence 701 simply made explicit what we are saying has always been implicit was made very clear by the Advisory Committee’s note to Rule 702.

The amendment does not distinguish between expert and lay witnesses, but rather between expert and lay testimony. Certainly it is possible for the same witness to provide both lay and expert testimony in a single case. The amendment makes clear that any part of a witness' testimony that is based upon scientific, technical, or other specialized knowledge within the scope of Rule 702 is governed by the standards of Rule 702 and the corresponding disclosure requirements of the Civil and Criminal rules. 192 F.R.D. 340 , 416-17 (2000). (Emphasis supplied.) The Court of Appeals in Ragland similarly noted that the 2000 amendment to the federal rule did not represent a change but only a clarification.

Courts that have considered the question of whether the 2000 amendment was substantive in nature have concluded that the 2000 amendment merely clarified the correct interpretation of Federal Rule 701. See, e.g., United States v. Garcia, 291 F.3d 127 , 139 n. 8 (2d Cir.2002) (noting the amendment “does not substantively change Rule 701. Indeed, the amendment serves more to prohibit the inappropriate admission of expert opinion under Rule 701 than to change the substantive requirements of the admissibility of lay opinion”); People v. Stewart, 55 P.3d 107 , 123 n. 10 (Colo.2002) (en banc) (noting the amendment was added to eliminate confusion between Rules 701 and 702 and to clarify the distinction between expert and lay testimony). The Advisory Committee's note suggests that the use of Rule 701 to admit opinions based on specialized knowledge was “expedient,” and analogizes witnesses who gave such opinions to the proverbial wolf in sheep's clothing.

The amendment was necessary, according to the Committee, to “eliminate the risk that the reliability requirements set forth in Rule 702 [would] be evaded” under some courts' interpretations of Rule 701. 13 385 Md. at 723 . (Emphasis supplied.) The Ragland opinion concluded: We think the better view in interpreting the rule regarding opinion testimony is the more narrow one, and the view as expressed in the amended Fed.R.Evid. 701…. Accordingly, we will follow the approach as reflected in the 2000 amendment to Fed.R.Evid. 701 and hold that Md. Rules 5-701 and 5-702 prohibit the admission as “lay opinion” of testimony based upon specialized knowledge, skill, experience, training or education. 385 Md. at 725 . (Emphasis supplied.) The federal amendment of 2000 added new words to Federal Rule of Evidence 701.

Maryland Rule 5-701 has remained unchanged. No change, however, was necessary to keep the Maryland Rule and the Federal Rule on a parallel course. On neither side of the jurisdictional line was there any actual change in the law. On each side there were simply indistinguishable clarifications.

On the federal side, the clarification was manifested by the amendment to the wording of the rule itself. On the Maryland side, a similar clarification was manifested by the interpretive mechanism of the Court of Appeals, speaking through Ragland v. State. On both sides, the clarifications made explicit what had always been, or should have been, logically implicit. These invaluable clarifications, however, do now permit us to get to the desired juridical destination far more quickly and far more easily than we otherwise could have done.

Where then does this leave the appellant Cheeks with respect to his contention based on Ragland v. State? It would seem that he would be entitled, at the very least, to a hypothetical moral victory. If, arguendo, we assume, as he alleges in his brief, that the State was offering Lieutenant Zimmerman as an expert witness but simply neglected to request 14 that he be formally admitted as such, we might have a clear violation of Ragland. That assumption, however, would depend upon the companion assumption that Judge Handy also thought that Lieutenant Zimmerman was being offered as an expert witness but then completely failed to realize that would permit both parties to voir dire the lieutenant as to his qualification as an expert and would further require her to make an express ruling in that regard.

Cheeks’s hypothetical would require us to conclude that Judge Handy 1) had deemed the fleeting testimony about the susceptibility of certain surfaces to the lifting of fingerprints to be a subject calling for expert testimony; 2) had concluded that the State had adequately established Lieutenant Zimmerman to be such an expert; 3) but had not offered Cheeks any opportunity to counter such proof; 4) and had actually herself made a ruling that Lieutenant Zimmerman was admitted as such an expert witness. It is equally improbable that, if all of these antecedent improbabilities had occurred, the unargued, unexplained, and unadorned ruling would have provoked not a syllable of protest and that the trial should have gone one without a hiccup. The fleeting ruling has taken on a significance in its afterlife that it never had at trial. Only such a concatenation of far-fetched assumptions could support Cheeks’s contention that this was why and how Judge Handy erroneously overruled Cheeks’s objection.

If all of these assumptions were, arguendo, true, however, Cheeks might well be entitled to relief. We cannot, however, realistically deem such a perfect storm of improbabilities to have come together. Such an arguendo hypothetical remains no more than a hypothetical. 15 Johnson v. State This is especially true if another and better explanation for this quick and unadorned ruling is available. In our judgment, such an alternate explanation is available.

As a matter of fact, it is infinitely more likely to have been the context for the otherwise quick and cryptic “Objection. Overruled.” exchange. As a legal rationale for that exchange, moreover, it is a far more tenable explanation for an infinitely more likely trial scenario. Even if, as we have established at length, Ragland v. State is now the accepted final word on the subject of the difference between expert opinions and lay opinions and the respective qualifications for being able to render either of those, that is still but one part of the law of opinion testimony.

A separate but very important aspect of expert opinion law is that of what subjects or issues actually require expert opinion testimony and which do not. The recent opinion of Judge McDonald for the Court of Appeals in Johnson v. State, 457 Md. 513 , 179 A.3d 984 (2018), has contributed massively to our understanding of this separate branch of expert opinion law. In a nutshell, a failure to follow the directions of Rule 5-702 is meaningless if Rule 5-702 does not apply. A failure of Lieutenant Zimmerman to qualify as an expert is meaningless if his testimony was not required to be an expert opinion.

That may be the Achilles heel of the appellant Cheeks on this contention in this case. Johnson v. State requires us to inquire as to whether a particular trial issue is even of the type contemplated by Rule 5-702. Is the testimony the sort of thing that necessarily “will assist [the jury] to understand the evidence” or is it “a matter of which the juror would be aware by virtue of common knowledge?” Judge McDonald posed the dichotomy, 457 Md. at 530 : 16 Expert testimony is required “only when the subject of the inference ... is so particularly related to some science or profession that is beyond the ken of the average layman [; it] is not required on matters of which the jurors would be aware by virtue of common knowledge.” (Emphasis supplied.) In Johnson v. State, the Court of Appeals was dealing with a global positioning device, a subject significantly more arcane than the lifting of fingerprints. Yet as Judge McDonald articulately expressed, there can be a broad lay understanding well short of a Ph.D degree.

Although a user may not understand precisely how a GPS device works, the same is true for other commonly used devices such as clocks, scales, and thermometers. The general public has a common sense understanding of what information the device conveys -- time, weight, temperature -- and of the margin of error to which such devices are ordinarily subject: a colleague's watch may tell time a minute faster or slower than one's own; the scale at the gym may display a different weight than the scale at home; and a thermometer that estimates child's temperature may give a slightly different answer in a second reading. 457 Md. at 531 . (Emphasis supplied.) And so too with fingerprints. The Court of Appeals in Johnson did not hesitate to hold that, even without the benefit of expert opinion pursuant to Rule 5-702, a lay opinion about GPS tracking was admissible.

In our view, the times and locations reflected in GPS data in a business record do not necessarily require expert testimony to be admissible… Courts in other jurisdictions have admitted evidence derived from GPS tracking devices over objections to the lack of technical expertise of the sponsoring witness. For example, courts have admitted tracking reports from GPS devices concealed in currency stolen from banks, data reports from GPS monitoring devices worn by probationers, and data on a GPS device seized from drug smuggling boat. We reject a categorical rule that expert testimony is required whenever location and duration information derived from a GPS device is offered into evidence. Of course, the party opposing admission is 17 free to cross-examine the sponsoring witness concerning any defects in the data, as happened in this case, or to present its own expert to contest the accuracy of a particular device. 457 Md. at 532-33 .

(Emphasis supplied.) As Johnson further made clear, moreover, Cheeks, if unhappy about Officer Zimmerman’s reason for not seeking fingerprints in this case was free, of course, to cross- examine the officer closely and/or to produce his own expert. On this contention, we would admonish Cheeks with the words of Johnson, 457 Md. at 532 : Expert testimony about how a clock works is not necessary every time an employee’s timesheet is offered into evidence. (Emphasis supplied.) Let us again remind ourselves that the critical testimony now at issue is Lieutenant Zimmerman’s opinion that: SURFACES THAT ARE COARSE OR RUBBERIZED OR UNEVEN TYPICALLY DO NOT YIELD LATENT FINGERPRINTS. By far the most likely explanation for the summary overruling of Cheeks’s objection to the fingerprinting testimony was an instinctive judgment by Judge Handy that the very subject was not one calling for the subtleties and formalities of expert opinion law.

That “gut” reaction would simply have been that the subject was not “beyond the ken of the average layman” but that it was one “of which jurors would be aware by virtue of common knowledge.” We would not find ourselves in disagreement with such an instinctive judgment. Our coincidental agreement or disagreement, however, is ultimately irrelevant. Are fundamental aspects of fingerprinting truly “beyond the ken of the average layman” or are 18 they “matters of which the jurors would be aware by virtue of common knowledge”? Or, more significantly, is this a close call that might reasonably go either way?

And if so, how then should we, on appellate review, assess a trial judge’s close calls? The handling of close calls, both the making of them and the appellate reviewing of them, is a fascinating small enclave of law all of its own. Who Gets To Make The Close Calls? There are, of course, innumerable instances in life where common experience and science meet.

Ideally, they should blend together within a comfortable median strip and not clash along a border rigidly set down by a surveying team. Along such a border, there should exist a garden path and not the Maginot Line. A witness should be able to stroll back and forth in the grass without worrying about stepping on a third rail. At the very least, the ostensibly broad discretion of the trial judge should be able to reach back and forth without worrying about a third rail.

If a witness should testify, “When I walked outside, it was raining,” that need not convoke a conclave of meteorological experts. A mere dab of popular science need not incur the full fury of academia. We must remind ourselves that in law, as in life, things are not always neatly binary. Life and law, in their infinite variety, frequently must grapple with overlapping.

The susceptibility of various surfaces to the lifting of readable fingerprints may well lie in that adjudicative twilight zone. It is here that one expects to find the close calls. The necessity of making close calls in a twilight zone is grist, moreover, for the discretionary mill. Even if, arguendo, we did find ourselves in initial disagreement with Judge Handy, that would not call for a different result in this case.

Such a call in the first instance is one 19 quintessentially entrusted to the broad discretion of the trial judge and an appellate court will not substitute its judgment for that of the trial judge absent a clear abuse of that discretion. In upholding a trial court judge’s exercise of discretion, the appellate court is scrupulously and broadly deferential. In what has come to be the accepted Ur-text for appellate review of the exercise of discretion, Chief Judge Alan Wilner (later judge on the Court of Appeals) said for this Court in North v. North, 102 Md.App. 1, 14 , 648 A.2d 1025 (1994): There is a certain commonality in all of these definitions, to the extent that they express the notion that A RULING REVIEWED UNDER AN ABUSE OF DISCRETION STANDARD WILL NOT BE REVERSED SIMPLY BECAUSE THE APPELLATE COURT WOULD NOT HAVE MADE THE SAME RULING. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.

That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. That, we think, is included within the notion of “untenable grounds,” “violative of fact and logic,” and “against the logic and effect of facts and inferences before the court.” (Emphasis supplied.) See also King v. State, 407 Md. 682, 697 , 967 A.2d 790 (2009); Nash v. State, 439 Md. 53, 67 , 94 A.3d 23 (2014). Indeed, the essential reason for deferential review was well expressed for the Court of Appeals by Judge O’Donnell in Wilhelm v. State, 272 Md. 404, 413 , 326 A.2d 707 (1974). The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party. 20 (Emphasis supplied.) See also Gross v. State, 229 Md.App. 24, 32 , 142 A.3d 692 (2016)(“Broad discretion is vested in the trial court with regard to expert testimony, and that discretion will not be disturbed on appeal absent an error of law or fact, a serious mistake, or clear abuse of discretion.”); State v. Robinson, 348 Md. 104, 121 , 702 A.2d 741 (1997); Kelly v. State, 392 Md. 511, 530 , 898 A.2d 419 (2005); Hopkins v. State, 352 Md. 146, 158 , 721 A.2d 231 (1998).

In dealing not with absolute certainties but in the inevitably more ambiguous twilight zone that stretches, sometimes widely, between opposing certainties, decision- making is heavily dependent on the eye of the beholder. For purposes of appellate review, that beholder is the trial judge who must make the split-second rulings and calls on the field in the middle of the action. It is always prudent for the appellate court to remember that it was not on the field, but is sitting back quietly in the league office a hundred miles away and six months after the fact. Deference marinates in distance.

With prudent deference, we hold that Judge Handy’s disinclination to apply expert opinion law to this arguably non- expert issue was not an abuse of her broad discretion.2 2 If an appellate panel were to disagree within itself about a trial judge’s exercise of discretion, that might create a delicate situation for the panel pursuant to North v. North’s definition of “abuse”, 102 Md.App. at 14 . For one panelist to charge other panelists, those agreeing with the trial judge, with defending a position that was “beyond the fringe of what that court deems minimally acceptable” might seem to be a breach of collegial felicity. More significantly, however, for one panelist to charge other panelists, those agreeing with the trial judge, with defending a position “well-removed from any center mark imagined by the reviewing court” would seem to create an oxymoron. How could those other panelists express a position “well-removed from any center mark” that they could possibly imagine?

How could they espouse what they cannot imagine? Can a trial 21 An Arguendo Hypothetical Times Two: Harmless Error Even if, purely arguendo, the trial judge’s overruling of the objection to the officer’s explanation for non-fingerprinting could be deemed by the appellate court to be an error, and even if, doubly arguendo, that error could be deemed an abuse of discretion, we would still affirm Cheeks’s conviction. Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976), held that even an established error may be deemed harmless if “a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict.” Realistically, this case did not turn on the existence or non-existence of a fingerprint. This case also did not turn on the thoroughness of the investigation made by the police.

Officer Zimmerman’s opinion about certain surfaces not yielding fingerprints was not, as in Ragland v. State, an element of the crime. It dealt with nothing more than a fringe issue on the peripheral rim of the trial. The entire expert opinion appellate controversy concerns only a collateral trial issue, and a small-bore issue at that. The undisputed fact was that no fingerprint of the .32 revolver was taken.

The evidence, however, put the gun in the hands of Cheeks as he came out of the window and before he dropped it to the alley floor. The .357 Magnum carried by the first fugitive out judge’s position which enjoys some appellate support truly be characterized as being “beyond the fringe of what the court deems minimally acceptable”? In the words of Meredith Willson’s The Music Man, such an intra-panel disagreement might even be characterized as “A Dissent with a capital D, and that rhymes with T, and that stands for Trouble.” 22 of the window, Mack, was recovered from the field through which Mack had fled. The .32 revolver was seen in Cheeks’s possession before the third fugitive ever came out of the window.

The connection between Cheeks and the .32 revolver was never a realistic matter of controversy. An absolutely major factor in deciding whether a hypothetical error would or would not have been harmless is the purpose for which the challenged opinion evidence was offered and, therefore the likely impact that the evidence may have had. On this issue, the contrast between this case and Ragland v. State could not be greater. In Ragland, the opinions of two officers, based on extensive background study and training, went to the very core of the criminal charge itself.

Ragland was being tried for having participated in an exchange of narcotics. Without the opinions of the officers, there would not have been even a prima facie case of such participation. Based upon their training and special knowledge, however, the officers were able to opine that Ragland’s otherwise ambiguous behavior actually constituted the drug transaction itself. The challenged opinions did not merely influence the verdict.

They, indeed, made the verdict possible. If error, that would be harmful error per se. In circus terms, those police opinions commanded the absolute center ring of the production. In similar circus terminology, the opinion being challenged by Cheeks in this case was an inconsequential event in a carnival tent on the far periphery of the circus grounds.

The core issue in this case, of course, was whether Cheeks had been in possession of the .32 caliber handgun recovered from the alley floor. Notwithstanding direct testimony that he had been, the defense still might have liked to make the point that there was no physical 23 or scientific evidence corroborating that testimony and linking him to the gun (The Classic CSI Defense). The issue of whether the police had conducted a thorough investigation would be a tangential consideration, but one bearing on the more directly pertinent issue. The sub-issue of whether the gun had been dusted for prints or whether Cheeks himself had been fingerprinted would bear on the thoroughness of the investigation.

If the lead investigator had failed to request a search for fingerprints, some interest might then arise in why he had not done so. Step by imperceptible step, however, the inquiry would be getting farther away from the core question of whether the crime itself had been committed. The hypothetical error in this case would not have gone to the case’s core issue. It did not even go to a major tangent.

Its impact, at most, would have been on a tangent of a tangent. Our point is that there would have been significant attenuation. The more the attenuation, of course, the greater the likelihood that the hypothetical error would have been harmless. The jury in this case was not chomping at the bit for an opportunity to punish the police for not being more diligent in their investigative thoroughness.

Whether or not Officer Zimmerman was permitted to give his reason for not having had the weapon fingerprinted was, we declare beyond any reasonable doubt, of absolutely no consequence to the jury’s decision in this case. The error, if any, was harmless Enhanced Sentencing and Required Notice Cheeks’s second contention is that he received an enhanced sentence without having received the required notice that should be provided antecedent to his being tried and/or sentenced. Maryland’s statutory law criminalizing the possession and/or use of handguns and other firearms is absolutely labyrinthine and calls for careful navigation of a tangled 24 thicket. Cheeks was found guilty of all three offenses charged against him in his indictment.

He was sentenced for all three convictions. Only one of them, however, involved enhancement. The actual sentencing was very brief. THE COURT: So under Count I, possession of a regulated firearm, being a prohibitive person, your sentence is 15 years, the first five without the possibility of parole.

Count II, wear, carry, and transporting a handgun, five years to run consecutive, and Count III, possession of ammunition, one year to run concurrent to Count II. The heavy sentencing was on the first count and did not involve enhancement. The basic crime is spelled out in Maryland Code, Public Safety Article, Sect. 5-133 and prohibits the possession of a regulated firearm by a person deemed to be unqualified to possess a firearm by virtue of various circumstances, including prominently a conviction for a crime of violence. The basic penalty for a violation, available for a first violation of the statute or for any subsequent violation, is provided by Subsect. 5-133(c)(2): (i) Subject to paragraph (3) of this subsection, a person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment for not less than 5 years and not exceeding 15 years.

(ii) The court may not suspend any part of the mandatory minimum sentence of 5 years. (iii) Except as otherwise provided in Sect. 4-305 of the Correctional Services Article, the person is not eligible for parole during the mandatory minimum sentence. This was a straightforward sentencing provision that did not involve enhancement. By the same token, the sentence on the third count did not involve any enhancement.

The sentence of one year was for a violation of Maryland Code, Public Safety Article, Sect. 5- 133.1, which prohibits the possession of ammunition by a person who is prohibited from 25 possessing a firearm. Subsection (c) is the basic penalty provision and not an enhanced penalty for recidivists. It was only Cheeks’s sentence on the second count that entailed any penalty enhancement. The conviction was for a violation of Maryland Code, Criminal Law Article, Sect. 4-203, prohibiting the wearing, carrying, or transporting of a handgun.

The basic unenhanced penalty provision is for “imprisonment for not less than 30 days and not exceeding 3 years.” For one having been previously convicted, however, subsection (c)(1) provides for “imprisonment for not less than 1 year and not exceeding 10 years.” Cheeks’s sentence of five years on Count Two was, therefore, the product of permissive enhancement. By virtue of its having been made consecutive to the 15-year sentence of Count One, moreover, it was more than merely academic. When a defendant is being subjected to an enhanced penalty, Maryland Rule 4-245 provides that the State Attorney must give the defendant notice of that possibility. This notice is two-pronged.

Rule 4-245(b) provides for notice “at least 15 days before trial in the circuit court” for additional penalties which are permissive.