Massie v. State

RODOWSKY, Judge. In this certiorari review of a conviction for murder the issue is whether the trial court abused its discretion in permitting a forensics employee of the investigating police department, who was not a doctor of medicine, to opine as to the time of the victim’s death. The petitioner, Timothy Lome Massie, Sr. (Massie), was convicted by a jury in the Circuit Court for Washington County of second-degree murder and sentenced to thirty years imprisonment. That judgment was affirmed by the Court of Special Appeals in an unreported opinion.

The victim was Massie’s estranged wife, Debra Massie (Mrs. Massie). The murder was committed sometime on February 14 (Valentine’s Day) in 1995. It was undisputed that the cause of death was strangulation and that Mrs. Massie was killed where her body was found, in the living room of the residence at 311 Jefferson Boulevard in Hagerstown where she resided with the Massies’ twin, eight year old sons. Prior ⁸³⁶ to the Massies’ separation, the premises were the marital abode.

To the rear of the dwelling house was a garage which Massie, the owner of a towing service, and his employees continued to use occasionally for the maintenance and repair of the tow trucks which were principally garaged elsewhere. Following the Massies’ separation the dwelling house was “off limits” to Massie and his employees. Mrs. Massie was last seen alive by her stepmother at the latter’s home when Mrs. Massie dropped off valentines between 11:00 a.m. and 11:15 a.m. on February 14,1995. On the day of the murder one of Massie’s employee’s, Daryl Moser (Moser), was working on a tow truck in the garage.

He had arrived there between 11:00 a.m. and 11:15 a.m. He did not see Mrs. Massie at any time that day. Moser testified that Massie arrived at the garage between 11:15 a.m. and 11:30 a.m., remained for approximately ten minutes, and left. At 11:45 a.m., Moser heard a truck pull up to the garage.

When no one entered, Moser looked outside and saw Massie inside the fenced-in yard of the dwelling, walking toward the rear of the house. Massie signaled to Moser that he would be back in a minute or two, and Moser went back to work. Five to eight minutes later, Massie returned from the house, had a two- to five-minute conversation with Moser in the garage, and drove off. Some time after Massie had left, a call came in from Massie’s mother over the radio in the tow truck, “hollering for Tim.” Moser looked at the truck’s clock which, he recalled, read approximately 12:30 p.m.

At approximately 12:15 p.m. on February 14,1995, Sergeant Richard C. Moyer (Moyer) of the Washington County Sheriffs Department telephoned Massie about some vehicles which Massie’s company had towed at the request of the Sheriffs Department and which were stored at 30 Baltimore Street in Hagerstown. Moyer reached Massie’s answering service, and Massie returned the call approximately ten minutes later. He sounded agitated. During that telephone conversation, Massie reported that wheels and tires had been stolen from one of the ⁸³⁷ stored vehicles.

Moyer advised Massie to speak with the Hagerstown police. At 1:13 p.m., Sergeant William C. Wright, III (Wright) of the Hagerstown Police Department responded to the reported theft. He arrived at the storage lot at 30 Baltimore Street at 1:18 p.m. and was met by Massie. Wright remained with Massie until approximately 1:50 p.m., when Massie went to the Hagerstown Police Station.

Four officers, as well as the front desk receptionist, testified that Massie was at the police station from approximately 2:00 p.m. until 2:30 p.m. Mrs. Massie had not appeared at the Valentine’s Day party that began at 12:45 p.m. at her sons’ school. After school the boys were unable to gain entry to their home. They asked Moser if he knew where their mother was.

Moser went to the back door of the Jefferson Boulevard residence and noticed broken glass by the knob. Moser knocked on the door and yelled inside for Mrs. Massie, but received no reply. He then took the Massie children to their grandparents’ house that was nearby. From there he telephoned Mrs. Massie, but received no answer.

After attempting unsuccessfully to contact Massie, Moser returned to the Jefferson Boulevard residence, reached through the broken pane, and opened the door. Moser discovered Mrs. Massie’s body and immediately telephoned 911. Community Rescue Service received that emergency call at 3:21 p.m. and promptly dispatched two paramedics who arrived at the murder scene approximately two minutes later. Randolph Scott Spies (Spies), one of the paramedics, testified on cross-examination that Mrs. Massie had been dead for “well over an hour” before he arrived.

On redirect, Spies said that he could not specify by how much more than an hour the body had been dead. It was cool, but not cold. Spies’s concern was whether to initiate resuscitation, which he did not attempt. The witness with whose testimony we are concerned is Jeffrey Craig Kercheval (Kercheval), a forensic chemist with the Hagerstown Police Department.

He arrived at the crime ⁸³⁸ scene at approximately 4:05 p.m., conducted a brief walk-through of the premises, and at about 4:15 p.m. made an examination of the victim which is more particularly described, infra. The trial court permitted Kercheval to express, over objection, the opinion that Mrs. Massie had been dead for as long as five hours, i.e., from 11:15 a.m. at the earliest. Massie claims that that ruling was erroneous. Dr. Edward Ditto, III (Ditto), the Deputy Medical Examiner for Washington County, arrived at the scene shortly after 5:00 p.m.

Ditto concluded that Mrs. Massie died at approximately 2:30 p.m. He recorded that as the time of death in his official report. Later, Ditto told the defense investigator that the time of death was 2:30 p.m., “give or take fifteen minutes.” At trial Ditto testified that he' was told by an unidentified officer at the crime scene that Massie had visited his wife there at about 2:00 p.m. Ditto took that information into account in his reported time of death.

Having since learned that that information was not correct, Ditto testified that death could have been as early as 12:15 p.m., although he acknowledged that his examination of the body.was also consistent with death having occurred at 2:15 p.m. Dr. Dennis Chute, the forensic pathologist who performed the autopsy on Mrs. Massie in Baltimore, recorded in his report that the time of death was 2:30 p.m. He was not asked any questions about the time of death. The State’s theory of the case was that Massie murdered his wife and attempted to make it appear that the murder was committed by an intruder.

Further, there was evidence from which the jury could have found that Massie’s motive was to avoid transferring an anticipated one-half of the value of his business and of the Jefferson Boulevard property to his wife in their divorce which Massie was anxious to conclude in order to marry another woman. The evidence linking Massie to the murder included the following. Kercheval found a note on the television set at the crime scene which read: “Your husband is next, I need money.” That note was written in ink that matched the ink in ⁸³⁹ a pen taken from Massie. The pen was a counterfeit Cross pen that had a very rare type of ink, thus substantially increasing the likelihood that Massie’s pen was the one used to write the note.

Further, a cigarette butt, found in the trash can in the kitchen at 311 Jefferson, carried DNA that matched Massie’s DNA. Glass on a hammer recovered by Kercheval and glass fragments from blue work pants belonging to Massie were “optically indistinguishable” from the glass in the kitchen door’s broken window pane. This type of glass was different from ninety-one percent of the glass in the FBI’s data base. In addition, the murderer had taken Mrs. Massie’s pocketbook.

Thereafter Massie asked Moser whether he had noticed that the purse was missing, but a detective testified that this information was not made known to Massie or to the public. There was also evidence that Mrs. Massie carried in her purse an address book that contained the unlisted telephone number of a longtime friend of Mrs. Massie. That friend testified that, after the murder, Massie telephoned her on her unlisted line. Massie did not testify at trial.

The defense strategy was to generate a reasonable doubt based on the fact that Massie was at the police station when, according to Dr. Ditto’s report, Mrs. Massie was being strangled. Against the foregoing background we now turn to the issue before us. The question presented in Massie’s petition for certiorari reads: “Did the trial court err in concluding that, although a witness was not an expert in pathology and could not give an opinion as to time of death, the witness could give ‘his opinion the time of death was somewhere between the time of his arrival and two hours before ... six hours before’?” The phraseology of the question presented reflects the evolution of the trial judge’s analysis that led to the disputed admission of Kercheval’s opinion. The Court of Special Appeals described the witness’s general qualifications as follows: ⁸⁴⁰ “Kercheval received an Associates of Arts degree from Hagerstown Junior College and a Bachelors of Science degree "with a major in Biology from St. Mary’s College in Maryland.

He earned a Masters degree in forensic science from George Washington University and did post-graduate studies in toxicology from American University. He has been.the forensic chemist for the Hagerstown Police Department for approximately 11 years. He also teaches at Hagerstown Junior College instructing the Criminalistics curriculum. He instructs at the Western Maryland Police Academy, which is a police training academy of the Hagerstown Police Department.

He has also instructed a forensic science seminar for the Mid-Atlantic Association of Forensic Scientists, a professional forensic scientist organization. He has completed the following training: the Maryland Law Enforcement Officers Occult New Age Beliefs School (on the investigation of the occult at crime scenes); the F.B.I. Crime Scene Protection and Evidence Preservation School; the Eastman Kodak Crime Scene Photography School; the F.B.I. Basic Footwear and Tire Print Evidence Class; the F.B.I. Basic Fingerprint Classification School; the Mid-Atlantic Association of Forensic Scientists Expert Forensic Testimony Workshop; the FBI’s Advance Latent Fingerprint School; the United States Secret Service Questioned Documents Course; and the Mid-Atlantic Association of Forensic Scientists Advanced Training Techniques for Footwear and Tire Tread Impression Evidence. In 1993 he was bestowed the American Academy of Forensic Science award for outstanding service to the forensic sciences in the Mid-Atlantic Region of the United States. He also was the first recipient of the Remarkable Young Forensic Scientist Award by Scientific Sleuthing, an international forensic science magazine.

He belongs to many boards and associations and work[ed] on some noted cases, but they are too numerous to mention.” Specifically with respect to establishing the time of a death, the intermediate appellate court accurately noted that ⁸⁴¹ “Kercheval took a forensic pathology course at the Armed Forces Institute of Pathology at the Walter Reed Medical Center that dealt with determining [and] establishing time of death. The course Kercheval teaches at a local college includes a forensic pathology component. 3 The State concluded its presentation of Kercheval’s qualifications by asking, “Do you commonly utilize techniques as part of your investigation of a homicide or suspicious death to attempt to determine the approximate time of death?” Kercheval replied, “Yes I do.” The State then proffered Kercheval as an expert “in forensic chemistry and as an expert in crime scene reconstruction.” The defense had no objection, but Massie flagged for the court his anticipation that the State would try to elicit an opinion from Kercheval “regarding pathological issues” to which Massie would object. The court received Kercheval as an expert in forensic chemistry and crime scene reconstruction, noting, “That’s what he’s being offered for.” The State replied, “At this time, yes sir.” The State examined Kercheval for better than fifty pages of transcript, eliciting the details of Kercheval’s collection of physical evidence at the crime scene. The witness then described his examination of the victim’s body.

He felt the extremities for temperature and for the presence of rigor mortis. Without objection he explained that usually rigor mortis becomes apparent to the touch in about one hour after death and that a body “will reach maximum stiffness anywhere from six to twenty-four hours” after death. He explained the body chemistry causes of rigor mortis. In Mrs. Massie’s body it was present in the extremities and in some of the larger muscles, but it was not yet fixed. ⁸⁴² Kercheval then began to describe algor mortis, a method of estimating the time of death based on the temperature of the body.

He stated that there are “different factors which affect all these different means that we try to establish time of death.” At this point Massie objected and a bench conference ensued. The court reiterated that Kercheval had not been accepted as an expert in pathology, but the State argued that, based on Kercheval’s course work, the State was offering Kercheval “as an expert in this limited area,” inferentially, time of death. The State disclaimed offering Kercheval as a doctor, but said: “I’m not going to use any expertise in this area of time of death ... pathology as it relates to the time of death.” We read the pause in this statement to indicate that the State was revising its general disclaimer and limiting the disclaimer to “pathology as it relates to time of death.” 1 The court responded that time of death is a medical question. The prosecutor countered by saying that Kercheval was qualified to testify as to his observations and that “I have not asked him for time of death.” The court agreed with the State’s contention that Kercheval could testify describing “his observations as to what he has knowledge of____” Massie then pointed out that his objection went to “the onset of rigor, the time frame involved.” The court disagreed, expressing the belief that “it” had something to do with forensic chemistry and the reconstruction of the crime scene.

The court stated: ⁸⁴³ “I think he’s qualified to testify if he observed signs of rigor mortis. “And what those signs mean and what it meant to him and what he observed.” Massie again objected to the “bootstrapping,” but the court replied: “I think the witness can aid the jury in its determination as to the time of death. But I don’t think I would say the witness can give an opinion. I think that he can (inaudible) so that the jury can use that information together with all the other information[ ] that the evidence (inaudible). Assuming that there’s (inaudible) as to perhaps not necessarily the exact time of death but a window that death probably occurred in this window of opportunity.” (Emphasis added).

At this point in the colloquy the State proffered that Kercheval would testify that death occurred approximately three to five hours prior to his examination at 4:15 p.m. The defense again objected on the ground that the Armed Forces Institute of Pathology course taken by Kercheval did not make him a pathologist. The court ruled that Kercheval, based on his observations and what it meant to him as a forensic chemist, could tell the jury “what in his opinion, if he has an opinion, that the death occurred within a certain ... within a window of ... a window of time.” Continued argument by Massie that Kercheval could not say Mrs. Massie was dead for three to five hours prior to his examination led to the statement by the court from which the question presented on certiorari was taken. The court said: “I think that he can ...

I’m going to let him if the State wishes to proceed in this fashion, I’m going to let them through this witness I mean there’s going to have to be other foundation but ultimately be able to say through this witness ... to present to the jury information through this witness (inaudible) in his opinion the time of death was ⁸⁴⁴ somewhere between the time of his arrival ... and two hours before ... six hours before. “I think that it would be helpful to the jury to hear his opinion based on all that he’s done in this case. Ask him his experience. For the jury to get an expression from this witness as to the (inaudible) the outer limit of time involved (inaudible).” The argument continued with the State advancing the following distinction: “We’re not talking pathology in terms of an autopsy. But we are talking about how it portrays at the crime scene and what he viewed with the body.

These are niched areas of education and experience.” At that point the court flatly ruled that the State could ask the question: “What is the earliest time of death (inaudible) ... time of death of?” and that the court would overrule Massie’s objection to that question. Examination of Kercheval resumed. He explained algor mortis and the “Glaister