Miller v. State

MURPHY, J. In the Circuit Court for Baltimore City, a jury convicted Anthony Jerome Miller, Petitioner, of two counts of second degree murder. The State’s evidence was sufficient to establish that he had committed those offenses on April 11, 2003. After Petitioner’s convictions were affirmed by the Court of ⁶¹¹ Special Appeals in an unreported opinion, he filed a petition for writ a of certiorari in which he presented this Court with the following question: Did the lower courts err by ruling admissible a handwriting expert’s testimony that petitioner might have written the victim’s signature on an important questioned document and that, based on his comparison of documents while on the stand testifying, the “general appearance” of the handwriting on the questioned document did not match the victim’s handwriting? We granted the Petition. 409 Md. 413 , 975 A.2d 875 (2009).

For the reasons that follow, we hold that neither the Circuit Court nor the Court of Special Appeals erred in their conclusions that the handwriting expert’s testimony was admissible. We shall therefore affirm the judgment of the Court of Special Appeals. Background Petitioner was convicted of murdering Jason Convertino and a second victim (who, in the words of the Court of Special Appeals, “apparently happened to have been visiting Convertino and was in the wrong place at the wrong time”), whose bodies were found in Mr. Convertino’s apartment on April 16, 2003. To prove that Petitioner shot them to death five days earlier, the State presented evidence that (1) Petitioner’s DNA “matched” the DNA on latex gloves found in close proximity to Mr. Convertino’s body; (2) on April 17, 2003, Petitioner pawned Mr. Convertino’s laptop computer, (3) on April 9, 2003, Petitioner requested that the travel agency making arrangements for his honeymoon trip to Cancún fax to him an “authorization to charge” form so that the $2,015.98 he owed the agency could be charged to the credit card of an unnamed friend, (4) during the late evening of April 11, 2003 and during the early hours of April 12, 2003, Petitioner placed more than twenty phone calls to one Earl Fowlkes, claiming to be “in trouble,” and requesting that Fowlkes pick him up on the east side of Baltimore; and (5) on April 12, 2003, the travel agency received a fax transmission of the authorization form, purport ⁶¹² edly signed by Mr. Convertino on April 10, 2003, that allowed the agency to obtain the funds owed by Petitioner from Mr. Convertino’s account.

It is the testimony related to the “authorization to charge” that is at issue in the case at bar. The State’s closing argument includes the following discussion of the evidence linking Petitioner to the murders: ... [The Petitioner] kills [Jason Convertino], takes his grandmother’s phone, takes his laptop, takes his credit card, and after the man is dead just buys gas with it. And how do we know that Jason [Convertino] didn’t, out of the courtesy of his heart, give a man who did not invite him to his wedding, a $2,000 honeymoon? How do we know that?

Well we heard Robert [Verderamo], the State’s expert, testify that this handwriting, he couldn’t say for sure but it had a lot in common with the defendant’s handwriting. So then I asked him to look at Jason’s Chevy Chase Bank account records full of Jason’s signature. Remember [exhibits] 44A through 44K I think it was? You have lots and lots of checks from Jason and the signature on these checks looks absolutely nothing like the signature on the travel voucher.

So what does he do? He is slick he dates it April 10th because Jason is still alive on April 10th. But he can’t get it back to his good friend Terry Robinson on the 11th because he can’t get out of Dodge. He is stuck in Fells Point.

He calls Earl [Fowlkes] on April 11th, after he’s killed the two men and taken everything [he can] find of Jason’s....he’s called Earl [Fowlkes] over and over and over and over saying man get me out of here. Come get me, I’m in trouble..... only he can’t get out of Dodge. Earl’s not coming and so all night he calls, over and over and over and over[.] In support of its contention that Petitioner forged the deceased Mr. Convertino’s signature on the authorization to charge form, the State presented the testimony and written report of Robert J. Verderamo, a Baltimore City Police De ⁶¹³ partment questioned document expert. The following transpired prior to Mr. Verderamo’s testimony: [DEFENSE COUNSEL]: I’m going to object to this next witness ... [PROSECUTOR]: If I understand—normally, when I have these handwriting cases, the expert who is—there’s no question he’s an expert—says in my expert opinion this guy wrote this.

This handwriting is his handwriting. THE COURT: Right [DEFENSE COUNSEL]: If I understand it, [the prosecutor] will certainly correct me if I am wrong, he’s not going to say that. He’s going to say it could have been him; it might have been him; maybe it’s him; we can’t say it’s not him. It seems to me that that is not admissible.

That is prejudicial and it’s not admissible evidence. The probative value has—it’s just not admissible. I think he’s going to have to say more—and I don’t think he can—than it could have been him; we can’t exclude him as the writer. That’s the basis for my objection, sir.

THE COURT: [Defense Counsel], you’ll have the opportunity to cross examine this witness and to question him in any respect you wish about the extent of his opinion and how far it goes, which would be true of any expert. [DEFENSE COUNSEL]: But you wouldn’t even let ... an expert in another field testify unless he could say within a reasonable degree of certainty, scientific or medical certainty depending on the context, this was this. You wouldn’t, I don’t think, allow an expert to testify that it could have been, it might have been, I can’t say it’s not him. THE COURT: Well that is to the ultimate issue, I think. In respect to a handwriting expert, I’m presuming that he can get on the stand and explain how he goes about making his analysis and why he can reach the conclusion and I can’t exclude that this was his handwriting.

That’s probative, as far as that may go. It may not go very far, or it may, ⁶¹⁴ depending on—I don’t know how the testimony is going to come out. I think that, on balance (inaudible) the jury, so I’m going to permit the State to put [Mr. Verderamo] on. The record shows that the following transpired during Mr. Verderamo’s direct examination: [DEFENSE COUNSEL]: We stipulate to—if you would like to accept it—to Mr. Verderamo’s expertise. [PROSECUTOR]: Okay, Your Honor, I’ll offer Mr. Verderamo as an expert in the field of handwriting analysis and identification.

THE COURT: Very well. Base on the Stipulation of Counsel, I will find, and do find, that Mr. Verderamo is qualified as an expert to testify on the issue of handwriting analysis and identification. Q: Now, with regard to the case involving the murder investigation into the death of Jason Convertino and [the second victim] ... Were you involved in any manner in this investigation.

A: Yes, I was. Q: What was your role? A: I had a request to do a comparison between a copy of a travel authorization sheet, or a credit card authorization sheet. That was the questioned] document that I mentioned.

I also had submitted to me index cards with the knowing writing of the suspect. I looked at both sets of documents and did my comparison. Q: I’m going to show you what have been marked for identification purposes only, as State’s Exhibit 40, 41, 42 ... Can you tell us what, if anything, you did with regard to this document?

Just briefly. A: This would be the questioned document. It’s labeled as Q, meaning questioned, Q-l on my report. This is the ⁶¹⁵ document I used for compar—this is the actual document that I used for comparing to the index cards.

Q: Is that the document that says, “Travel Concepts” with Jason Convertino’s name and credit card information on it? A: That’s correct. I have that listed as “One Travel Concepts Authorization to Charge Form.” Q: Okay and that’s already in evidence. Let’s show you what’s been marked, for identification purposes only, as State’s exhibit 40.

What are we looking at here? A: This is the actual report, outlining exactly the results of my examination. Q: What is State’s 41 for identification purposes? A: There are 113 index cards that were indicated to me as the known handwriting of [Petitioner].

They have different writings on them, each one of the index cards. I looked at these as the known writing and used that to make a comparison with the travel authorization sheet. Q: Now, will you please tell us what you did? A: Well, first thing I did was, I first looked at the questioned document.

In doing a handwriting comparison, handwriting is a mental and muscular coordinated process. It’s a habit and it’s identifiable because it’s a habit, and you repeat the characteristics. I’m looking for these repetitive characteristics that are identified to a particular individuals writing. The type of characteristics I’m looking for are, like, the size of the writing; the spacing between the letters; the pen movements; underhand connecting strokes; overhand connecting strokes; proportion of the letters, how tall the “T” is to an “A” or maybe how high up on the cross bar the “T” is compared to the staff of the “T”; or how big one letter is compared to another letter.

I’m also looking for subtle pen movements. So, I first looked at the questioned document to see what I thought was important for identification purposes. After I ⁶¹⁶ looked and saw what I thought was important on the questioned document, I then went to the index cards and I wanted to see what characteristics were presenting in the index cards and what kind of results I could have, having looked at both the questioned document and compared it to the known document and that is how I come to a conclusion. [Mr. Verderamo]: The conclusion here is—I can read my report and I’ll explain to you my results after showing you this. Having compared the questioned travel document with these index cards, my report reads: Due to unexplained variations in the writing, in the questioned writing of Q-l, there was not a basis for identifying Miller as the writer of this document.

However, there are characteristics of Miller [that] appear in the document which prevents his elimination as a suspect in this case. Q: What does that mean? A: As I mentioned, I saw several characteristics that I thought were in common. I pointed this out. “Unexplained variations”, “due to unexplained variations in the questioned writing”, the backwards slant, I couldn’t explain that.

I didn’t know if this was a deliberate attempt, either in this writing or in this writing, to change the natural writing habit because these were appearing in combination. I had characteristics in common. I had characteristics unexplained. I didn’t come to a definitive conclusion but there were characteristics here, that I could not ignore, in common between the two.

(Inaudible). Q: Now, when you say that you cannot eliminate him as a suspect, what does that mean? A: Well, the fact is, these characteristics are common in both. The possibility exists that this is the same writer.

However, when I used subjective evaluation, I would like to have something overwhelming. I guess may[be] I’m over ⁶¹⁷ conservative but I’m not making a positive identification unless I had similar characteristics. Q: Are you saying its not him? A: No, I can’t say that.

Q: So can you give it to us in lay terms exactly what you are saying? A: What I’m saying is, there’s characteristics here that I don’t understand why they are here. There are characteristics that are there that are common between the two. That sort of gives me pause to make a positive identification (inaudible) basis to make (inaudible) identification.

I cannot ignore what I saw and what I demonstrated to you today. Q: S[o], you can’t say its him and you can’t say for sure it isn’t him? A: That’s correct. Q: And that’s a reasonable degree of scientific certainty?

A: That’s correct. (Emphasis supplied). The following transpired during Mr. Verderamo’s cross-examination: Q: Frequently you are able to sit on the stand and look at the jury and say, the same guy, the same person wrote this, correct? A: That’s correct.

Q: And you can’t do that in this case? A: Not in this case, no. Q: By the way, did you—you took the time to compare [Petitioner’s] handwriting to the known signature in State’s exhibit 37 correct? A: Yes.

Q: Did you attempt to compare a number of known signature [sic] of Mr. Convertino with the exhibit 3[2]? ⁶¹⁸ A: The only exemplars that I compared were the 113 index cards. I did not have any other exemplars. Q: You were just trying to see if [Petitioner] wrote that? A: Correct Q: You were never asked to determine whether that, in fact, is Jason Convertino’s?

A: That’s right. The following transpired at a bench conference that preceded Mr. Verderamo’s redirect examination: [Prosecutor]: Your Honor, I’m going to offer into evidence at this time [State’s exhibit 43]---- [Defense Counsel]: ... I am certainly entitled to know of any expert reports. Now, I knew about, I knew about [Petitioner’s]—the report Mr. Verderamo prepared with respect to [Petitioner].

I certainly don’t object to that but I’m not aware of any report or any thing with respect to any examination which could have been done, obviously, prior to the middle of trial, with respect to Mr. Convertino. Now it’s true that I asked that question but it isn’t really a very tricky or clever question. It pretty much jumps out at you. Certainly, the State if they wanted to have Mr. Convertino’s signatures examined by this expert, prior to trial and offer an opinion, which Discovery would have been with [the] Defense, the State had all the time in the world to do that.

Now I feel I am basically being sandbagged. THE COURT: There has been no question from the very beginning that the State was taking the position that [Jason Convertino’s] signature on Exhibit No. 32 was not his signature, correct? [Prosecutor]: Correct THE COURT: There has been no issue about that from the beginning of the case. ⁶¹⁹ [Defense Counsel]: Yes sir, I agree. THE COURT: Now, even in the absence of an expert handwriting analyst, would it not be in the jury’s responsibility as the finder of fact, to be able to make a comparison of a known signature by Jason Convertino and the signature on Exhibit 32? They don’t need expert testimony to make a handwriting comparison, true? [Defense Counsel]: I agree with you THE COURT: Ok [Defense Counsel]:—but here’s the distinction ...

Yes, I am saying I didn’t. What I’m saying I didn’t receive is any indication or report indicating that this expert would testify that these were not Convertino’s signatures. THE COURT: I understand that. THE COURT: ...

The further objection that [Defense Counsel] is raising is whether or not [Mr. Verderamo], an expert can offer an opinion in redirect, as to whether or not the signature which appears on State’s 43 is written by the same individual who signed the document as State’s No. 32 is that correct? [Defense Counsel]: Yes your Honor. THE COURT: Okay, and [if I understand the Prosecutor’s argument, it is that Defense Counsel] opened the door to this line of questioning by his question on cross about whether or not Mr. Verderamo had ever compared a known signature by Mr. Convertino with a signature on State’s Exhibit 32? [Prosecutor]: That’s correct. [Defense Counsel]:—I may have opened the door, I mean, I haven’t. I asked him that question, I’m not saying that the State can’t, for example, bring in a lay witness to say I recognize that signature. What it doesn’t allow, I respectfully suggest, to allow an expert to now, while he’s on the ⁶²⁰ witness stand, when I’ve never been given any reports or any indication that he’s made that kind of examination THE COURT:....I think, quite frankly that you did open the door to have this question asked on redirect, so I’m going to overrule the objection.

On redirect, Mr. Verderamo testified as follows: Q: Now, I’m going to show you (inaudible), State’s 44J, which is the signature card from the Chevy Chase Bank records ... Can you compare it to the Jason Convertino signature on the travel voucher for us? A: Well, I’m not in a position to do a full handwriting comparison here. Again, we’re dealing with copies but just general, overall appearance— [Defense Counsel]: I again preserve my objection.

THE COURT: Very well. [Prosecutor]: Go ahead. [Mr. Verderamo]: The signature on the Chevy Chase, 44J document a little bit tighter, including a middle initial, which the travel document does not have. I see a difference in the crossing of the “T”. It looks like the finishing of the “0” comes back to complete a “T” crossing, so there’s—it’s just—I mean, I’m not doing a full comparison here but I do see a general appearance difference between here and the Chevy Chase documents. [Prosecutor]: To a reasonable degree of scientific certainty? [Mr. Verderamo]: For being on the witness stand and not being in my laboratory, yes. As stated previously, the jury convicted Petitioner of two counts of second degree murder in the shooting deaths of Mr. Convertino and the second victim.

Discussion I. The history of Md. Rule 5-901(b)(3) makes it clear that (1) the jurors themselves were entitled to compare the ⁶²¹ signature on the “One Travel Concepts Authorization To Charge Form” with the specimens that had been provided by Petitioner, and (2) the State had the right to present expert testimony on that issue. 1 When this Court adopted the Maryland Rules of Evidence in 1993, we included MRE 5-901, § (a) of which is identical to FRE 901(a), and § 5-901(b)(3), which is substantially similar—but not identical—to FRE 901(b)(3). 2 MRE § 5-901(b)(3) provides that the requirement of authentication may be satisfied by “[cjomparison by the court or an expert witness with specimens that have been authenticated.” The REPORTER’S NOTE to the version of § (b)(3) that we adopted includes the following explanation for the Rules Committee’s proposal: Subsection (b)(3) is derived from F.R. Ev. 901(b)(3), under which an item may be authenticated by comparing it, for purposes of