Rainey v. State

Ronnie Lee Rainey, Sr. v. State of Maryland, No. 1938, September Term, 2017, filed May 4, 2020. Opinion by Thieme, J. CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION CLAUSE — “TESTIMONIAL HEARSAY” — Crawford v. Washington, 541 U.S. 36 (2004): In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause generally bars the introduction into evidence, at a criminal trial, of “testimonial hearsay,” unless the defendant had a prior opportunity to cross-examine the declarant, and the declarant was presently unavailable to testify. CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION CLAUSE — “PRIMARY PURPOSE” TEST: Statements are testimonial when the circumstances objectively indicate that there is no ongoing emergency, and that the “primary purpose” of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Statements made in the absence of any interrogation, moreover, are not necessarily nontestimonial.

CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION CLAUSE — “PRIMARY PURPOSE” TEST AS APPLIED TO SCIENTIFIC AND FORENSIC REPORTS — Williams v. Illinois, 567 U.S. 50 (2012): The Supreme Court is sharply divided as to how Crawford should apply to the admissibility, at a criminal trial, of scientific and forensic reports, and of expert testimony derived, in whole or in part, from statements contained in such reports. The fractured 4-1-4 decision in Williams v. Illinois, 567 U.S. 50 (2012), resulted in three different tests for determining whether a scientific or forensic report is “testimonial.” CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION CLAUSE — “PRIMARY PURPOSE” TEST AS APPLIED TO SCIENTIFIC AND FORENSIC REPORTS — State v. Norton, 443 Md. 517 (2015): The Court of Appeals has interpreted Williams as mandating a two-stage inquiry in determining whether scientific and forensic reports are “testimonial”: first, whether the statements at issue in such a report satisfy the basic evidentiary purpose test espoused by Justice Kagan in her dissenting opinion; and second, if so, whether those statements satisfy either the formality test advanced by Justice Thomas, in his concurring opinion, or the targeted accusation test proposed by Justice Alito, in his plurality opinion. Only if the statements at issue satisfy both prongs are they deemed “testimonial.” CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION CLAUSE — RELATIONSHIP BETWEEN MARYLAND RULE 5-703 AND THE CONFRONTATION CLAUSE: Although the language of Rule 5-703 would suggest that a trial court may permit an expert witness to testify about testimonial statements of a non-testifying witness and, subject to a limiting instruction, disclose those statements to a jury, the Confrontation Clause takes precedence where the rule and the Constitution are in seeming conflict. Thus, the general rule governing the admissibility of expert testimony does not apply if the otherwise inadmissible evidence amounts to “testimonial hearsay,” nor is such evidence admissible only for the purpose of evaluating the validity and probative value of the expert’s opinion or inference, that is, for a purportedly non-hearsay purpose.

Circuit Court for Prince George’s County Case No. CT-130879-X REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1938 September Term, 2017 ON MOTION FOR RECONSIDERATION ______________________________________ RONNIE LEE RAINEY, SR. v. STATE OF MARYLAND ______________________________________ Nazarian, Arthur, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Thieme, J. ______________________________________ Filed: May 4, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-05-04 11:04-04:00 Suzanne C. Johnson, Clerk In a bifurcated proceeding, Ronnie Lee Rainey, Sr., appellant, pleaded guilty, in the Circuit Court for Prince George’s County, to facts constituting the actus reus of first-degree murder and related offenses,1 but elected a jury trial on the issue of criminal responsibility. Thereafter, a jury found that, at the time of the offenses, Rainey was criminally responsible for them. After the court imposed a sentence of life imprisonment plus additional terms for the related offenses,2 Rainey noted this appeal, raising the following question: Were Rainey’s constitutional rights violated when the circuit court permitted the State to introduce into evidence testimonial statements in the form of psychological test results of a non-testifying expert, through the testimony of another expert who did not perform the relevant psychological testing, and where Rainey had no opportunity to confront the non-testifying expert? 1 Rainey pleaded guilty to having committed the actus reus of every crime charged in a 14-count indictment.

That indictment charged him with first- and second-degree murder of his wife, Lisa Rainey, as well as his stepdaughter, Arialle Shelton; attempted first- and second-degree murder, and first- and second-degree assault, of his son, Ronnie Lee Rainey, Jr.; first- and second-degree assault of Ms. Shelton’s friend, Kevin James; and four counts of use of a handgun in the commission of a crime of violence, one for each victim. 2 The court imposed three concurrent life sentences for the first-degree murder of Lisa Rainey and Arialle Shelton, and the attempted first-degree murder of Ronnie Lee Rainey, Jr. In addition, it imposed a concurrent term of 25 years for the first-degree assault of Kevin James; as well as four concurrent terms of 20 years each for use of a handgun in the commission of a crime of violence. Remaining lesser included offenses were merged. Although we conclude that the circuit court erred in admitting into evidence the testimonial statements of a non-testifying expert, the resulting error was harmless, and we therefore affirm. BACKGROUND Rainey and his wife, Lisa Renee Rainey, were having marital difficulties.

On Sunday, May 12, 2013, following a domestic dispute, Lisa Rainey, accompanied by her children, Arialle Shelton (Rainey’s stepdaughter) and Ronnie Lee Rainey, Jr. (Rainey’s son, hereafter “R.J.”), left the family home in Laurel, Maryland and sought refuge in a nearby hotel. The next morning, Rainey sent a text message to Lisa, informing her that he was leaving the family home. Believing that Rainey was not there, Lisa and her children returned home to pick up clothes for R.J. and to check on the family dog. As a precaution, Arialle called her friend, Kevin James, and asked him to meet them at the family home and verify that Rainey was not there.3 James arrived first and, upon observing that Rainey’s car was not parked in front of the home, informed Arialle, by phone, that it was safe to proceed.

He had second thoughts, however, and went to the back of the home, where he saw Rainey’s vehicle. James then ran towards Arialle and the other family members and warned them that “[s]omething [was] wrong” and that they should return to their vehicle, but his warning was too late—by then, Rainey had emerged from the house, brandishing a handgun. 3 James was a police officer “working with the warrant unit.” He was not involved in the investigation of this case. 2 Rainey pointed the weapon at James while ordering the others to come inside the house. Rainey’s family members attempted to return to Arialle’s car, but Rainey turned and pointed his gun at them and repeated his order that they come inside. Meanwhile, James escaped by climbing over a fence.

Lisa, Arialle, and R.J. complied with Rainey’s order and entered the house. Once they were inside, Rainey ordered them into the living room. Lisa and Arialle sat down on a couch, and R.J. stood behind them. Rainey and Lisa then engaged in a “conversation” about the events of the preceding day.

According to R.J., Rainey asked how was he “supposed to feel comfortable,” and Lisa explained why she had left and not immediately returned. Then, the “back and forth” concluded, and Rainey declared, “Before I lose y’all, I would rather just take y’all,” whereupon he shot and killed Lisa and Arialle and shot at R.J. but missed, striking his cap instead. R.J. fled out the back door and ran to a neighbor’s house. Just before 10:00 a.m. that morning, a Prince George’s County 911 dispatcher received a call, placed by Rainey, informing the dispatcher that he had just shot his wife and his stepdaughter and had attempted to shoot his son at their home.

Rainey further told the dispatcher that he intended to shoot himself. Prince George’s County Police Officers responded to that call and created a perimeter around Rainey’s home. Rainey eventually surrendered, whereupon police officers entered the home and found Lisa Rainey and Arialle Shelton, in the living room, both deceased, with gunshot wounds to the head. 3 Rainey was arrested and transported to the Criminal Investigation Division of the Prince George’s County Police Department. During that trip, he admitted that he had killed his wife and stepdaughter.

Upon arriving at the police station, he was administered Miranda4 advisements, and he thereafter gave a recorded statement, once again admitting that he had killed Lisa and Arialle. The police recovered Rainey’s cell phone and discovered a 28-minute-long message that Rainey had recorded the previous evening, stating that he would take Lisa and himself “out” before he would allow her to leave him. On June 4, 2013, an indictment was returned, in the Circuit Court for Prince George’s County, charging Rainey with first- and second-degree murder of both Lisa Rainey and Arialle Shelton; attempted first- and second-degree murder, and first- and second-degree assault, of Ronnie Lee Rainey, Jr.; first- and second-degree assault of Kevin James; and four counts of use of a handgun in the commission of a crime of violence, one for each victim. Ten days later, Rainey, through counsel, filed a motion seeking permission to be examined by a defense expert, Thomas Hyde, M.D., to determine whether he was competent to stand trial.

That motion was granted, and, after Rainey had been examined by both Dr. Hyde and a State expert, a hearing was held, in February 2014, to determine whether he was competent to stand trial. The circuit court found that he was not and ordered that Rainey be committed to the Clifton T. Perkins Hospital Center. 4 Miranda v. Arizona, 384 U.S. 436 (1966). 4 While at Perkins, Rainey “was referred for a psychological evaluation” to include “diagnostic clarification, personality functioning, and the presence or absence of psychotic symptoms and cognitive disabilities.” During that evaluation, Rainey was given several psychological tests: a “Structured Inventory of Malingered Symptomatology” (“SIMS”); a “Structured Interview of Reported Symptoms, 2nd Edition” (“SIRS-2”); a “Test of Memory Malingering” (“TOMM”); and a “Personality Assessment Inventory” (“PAI”). A report was prepared, dated November 20, 2014 and signed by two psychologists, Aryeh Kanal, Psy.D., a psychology associate doctorate, and G.S. Marshall Cowan, III, Psy.D., the supervising psychologist. According to the report (hereafter “Kanal report”), Rainey’s scores “varied” on tests of malingering, but, in the opinion of the authors, “it would appear that Mr. Rainey’s reported symptoms are in fact feigned or exaggerated, but that he is not likely to exaggerate psychotic or unusual symptoms in other domains of functioning.” Eventually, Rainey was found competent to stand trial.

Then, in September 2015, Rainey, through counsel, filed a written plea of not criminally responsible. He ultimately reached a plea agreement, whereby he would plead to having committed the actus reus of every offense charged in the indictment, while reserving the issue of his criminal responsibility for a jury trial. In 2017, a five-day trial was held on the issue of criminal responsibility. The defense called two witnesses: Paul Smith, Rainey’s neighbor at the time of the killings; and Dr. Hyde, Rainey’s medical expert. 5 Smith, who lived across the street from Rainey, testified that, on May 11, 2013, two days before the killings, he had observed Rainey walking his dog.

Shortly thereafter, he heard a “loud noise,” which he recognized was a lightning strike. Smith went outside to investigate whether there had been any damage to his property and discovered that a tree in his yard had been struck by lightning. Rainey was outside when Smith ventured out, and Smith spoke with him “briefly.” Although he did not notice “anything wrong with” Rainey, Smith testified that Rainey “might have mentioned that he was struck, but he [couldn’t] recall.” Dr. Hyde, a neuroscientist and behavioral neurologist, who was admitted as an expert “in the field of neurology and psychiatry for the purpose of testifying as to criminality,” testified that he had examined Rainey four separate times over a two-year period. In addition to those examinations, he had further examined the materials provided by the State in discovery, including various recordings and videos, as well as notes and reports, and he had also interviewed Rainey’s former wife, Patricia Rainey.

After considering that information, Dr. Hyde opined that Rainey suffered from a traumatic brain injury induced by the lightning strike that had occurred two days before the killings. Consequently, in Dr. Hyde’s opinion, Rainey was not criminally responsible. Dr. Hyde further opined that Rainey was not malingering, stating that he had found no “evidence of that upon [his] examination of” Rainey. Dr. Hyde conceded, however, that his opinion was based largely upon Rainey’s self-reported symptoms and that he had observed no “evidence of trauma, deformity or scarring” when examining Rainey’s head. 6 The State presented testimony of Lisa Rainey’s mother, Velma Cook; R.J.; James; and its psychiatric expert, Annette Hanson, M.D. The testimony of R.J. and James, the only survivors of the shootings, was summarized previously; we shall briefly outline the testimony of the others as relevant to this appeal.

Ms. Cook testified that, on May 13, 2013, that is, the day of the killings, Rainey called her and said, “I am going to kill your daughter and I am going to kill myself.” He then hung up. Cook tried to call back but “couldn’t get an answer.” Phone records indicated that Rainey had placed that call at 9:55 a.m. and that he placed the ensuing “911” call less than a minute later. Prior to Dr. Hanson’s testimony, the defense moved in limine to preclude her from testifying about the results of the tests described in the Kanal report, on confrontation grounds. Then, while defense counsel examined her outside the presence of the jury, Dr. Hanson acknowledged, among other things, that she neither performed any of the tests described in the Kanal report, nor did she observe the raw data generated from those tests; and, furthermore, that, as to two of the three tests administered to Rainey, had she been provided with the underlying data, she would not have been qualified to analyze it.

The circuit court, nonetheless, denied the motion in limine, ruling that Dr. Hanson could testify about the tests because they were data “of a type reasonably relied upon by experts 7 in the particular field in forming opinions or inferences upon the subject[.]” Md. Rule 5-703(a).5 Dr. Hanson thereafter testified before the jury. After being qualified as an expert in the area of forensic psychiatry, she testified at length about her ultimate conclusion, that Rainey was criminally responsible for the crimes at issue. Among other things, she briefly mentioned that Rainey, while confined at Perkins after initially being found not competent to stand trial, had been administered three psychological tests to determine whether he was malingering and that, according to the Kanal report, two of those three tests indicated that he was. By far, the greater part of Dr. Hanson’s testimony concerned all the reasons she believed that Rainey should be found criminally responsible, including the “very unusual” symptoms Rainey reported; that Rainey had not been taking anti-psychotic medications until one week prior to being transferred to Perkins, which, she opined, “is quite unusual for someone with a serious mental illness”; that, once admitted to Perkins, his medication was stopped (because the purpose of his stay there was “to clarify his diagnosis”) and that, while “receiving no treatment” whatsoever, he nonetheless “did very well there”; that, once Rainey had been diagnosed and his medications resumed, none of the medications helped to alleviate any of his reported symptoms; that, during his 5 Effective July 1, 2019, Rule 5-703 was amended to conform more closely to Federal Rule of Evidence 703.

Rules Order, May 16, 2019 (available at https://www.mdcourts.gov/sites/default/files/rules/order/ro200.pdf) (last visited Dec. 10, 2019). Throughout this opinion, all references to Rule 5-703 are to the version in effect at the time of Rainey’s trial. 8 stay at Perkins, Rainey was “very well behaved” and “a model patient,” which is not “an easy thing to do at Perkins”; and that, once discharged from Perkins, Rainey was not prescribed any medication because he had been “assessed as not having a mental disorder.” In addition, Dr. Hanson criticized Dr. Hyde’s methodology and disagreed with the conclusions stated in his report, which were favorable to Rainey, noting that Dr. Hyde had, according to Dr. Hanson, “relied solely upon” Rainey’s word without considering the “information that collaterals provided.” She also downplayed Rainey’s reports that he had been suffering from delusional parasitosis because his purported symptoms were “inconsistent” with the confirmed cases she had observed in her two decades of work with “psychotic killers” and “violent offenders.” Finally, Dr. Hanson discussed the statement that Rainey had recorded on his cell phone early in the morning of May 13, just eight hours before the shootings, which she characterized as a “confession” and “the strongest evidence” of Rainey’s criminal responsibility. In that recorded statement, Rainey “talked about his anger at his wife, the fact that he had been . . . mistreated over the years by more than one woman,” and that “he wasn’t going to take it anymore.” Rainey further stated that he was “leaving [his] telephone unlocked for investigators,” a clear signal to Dr. Hanson that Rainey was able to “appreciate criminality.” Moreover, in his “911” call, Rainey stated that “he was going to kill himself rather than go to court,” again indicating that “he knew that he was going to be facing criminal prosecution immediately after the crime.” Then, while speaking to police officers afterwards, Rainey “had enough awareness of the criminality of his conduct that he offered an alternative explanation for the offense,” stating that “he 9 didn’t remember shooting at the victims” and that “he was shooting at the shadow of someone who he thought was coming into the house.” On the fifth day of the proceedings, the case went to the jury. After deliberating for less than two hours,6 it returned its verdict, finding Rainey criminally responsible for the crimes charged.

After sentence was imposed, Rainey noted this appeal. DISCUSSION I. Standard of Review “We review the ultimate question of whether the admission of evidence violated a defendant’s constitutional rights without deference to the trial court’s ruling.” Taylor v. State, 226 Md. App. 317, 332 (2016) (citing Hailes v. State, 442 Md. 488, 506 (2015)).

II

Legal Framework A. The Confrontation Clause, “Testimonial Hearsay,” and the “Primary Purpose” Test The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees that, in “all criminal prosecutions,” an accused “shall enjoy the right . . . to be confronted with the witnesses against him[.]” U.S. Const. Amend.

VI

How that guarantee is interpreted and enforced has sharply divided the Supreme Court, in the years since its seminal decision in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court sought to reconnect the application of the Confrontation Clause to its original meaning and held that, regardless of hearsay rules, 6 This is a generous estimate. The jury recessed for lunch at 12:14 p.m. and reconvened at 2:08 p.m., by which time it had already reached a verdict. 10 the Confrontation Clause generally bars the introduction into evidence, at a criminal trial, of “testimonial hearsay,” unless the defendant had a prior opportunity to cross-examine the declarant, and the declarant was presently unavailable to testify. 541 U.S. at 54 . The statement at issue in Crawford, which was recorded during a police interrogation of Crawford’s wife (who was unavailable to testify because of the spousal privilege) and played back at his trial, was indisputably a “testimonial” statement, and the Crawford Court thus had no occasion to offer a precise definition of that term.

Id. at 68 . The Court did, however, set forth what it called a “core class” of such statements, namely, affidavits, depositions, prior testimony, and confessions. Id. at 51-52 . Two years later, in two consolidated cases, Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006), the Court further refined the definition of “testimonial” statement by articulating what it called the “primary purpose” test: [Statements] are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 822 . In contrast, [s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Id. But, cautioned the Court, its holding referred to “interrogations” because the statements at issue in those cases were “the products of interrogations,” and it did not 11 mean to suggest “that statements made in the absence of any interrogation are necessarily nontestimonial.” Id. at 822 n.1.

B. Application of the “Primary Purpose” Test to Scientific or Forensic Reports How the “primary purpose” test applies to scientific or forensic reports has been the subject of three Supreme Court decisions rendered since Davis and Hammon: Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), Bullcoming v. New Mexico, 564 U.S. 647 (2011), and Williams v. Illinois, 567 U.S. 50 (2012). We now briefly summarize the holdings in those cases. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 , the Court held, in a 5-4 decision, that “certificates of analysis,” sworn to before a notary public, which attested to the weight and chemical composition of purported drugs seized from Melendez-Diaz, id. at 308 , fell within the “core class of testimonial statements.” Id. at 310 . Accordingly, it concluded that such certificates could not be introduced into evidence at Melendez-Diaz’s criminal trial without the testimony of the analysts who had performed the tests.

Id. at 311 . Two years later, in Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court held, again in a 5-4 decision, that an unnotarized “Report of Blood Alcohol Analysis,” which attested to the blood alcohol content measured in Bullcoming’s blood sample, as well as its chain of custody, and which certified that the analyst had followed the “established procedure” for handing and testing that sample, id. at 653 , was nonetheless a “testimonial” statement, despite being “unsworn.” Id. at 664-65 . Furthermore, because, at Bullcoming’s criminal trial, the State introduced the report, not through the testimony 12 of the analyst who had performed the test, but instead, through the testimony of a “surrogate” analyst, who had neither signed the certification nor performed or observed the test that it reported, id. at 652 , the Supreme Court held that the Confrontation Clause had been violated. Id. at 659-61 .

But, in Williams v. Illinois, 567 U.S. 50 (2012), the most recent of those decisions, the Court made an abrupt departure from Melendez-Diaz and Bullcoming and upheld a rape conviction, where an expert witness had been permitted to testify at Williams’s trial that his DNA had been detected through forensic testing of a rape kit obtained from the victim, despite the fact that the witness had neither performed the testing herself nor even been employed by the facility, Cellmark Diagnostics Laboratory, which had. The fractured 4-1-4 decision in Williams resulted in three different tests for determining whether a scientific or forensic report is “testimonial.” A plurality of four justices, the dissenters in Melendez-Diaz and Bullcoming, joined an opinion by Justice Alito, announcing the judgment of the Court, which stated that, to implicate the Confrontation Clause, not only must a statement, such as a forensic laboratory report, have been prepared for the “primary purpose of creating an out-of-court substitute for trial testimony,” Williams, 567 U.S. at 84 (Alito, J., plurality opinion) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)),7 but it must have “had 7 The quoted passage from Bryant emphasized that “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Michigan v. Bryant, 562 U.S. 344, 358 (2011). 13 the primary purpose of accusing a targeted individual.” Id. at 83. According to the plurality, the Cellmark report did not satisfy that test since, at the time the report had been prepared, there was no known suspect in the case. Id. at 85-86.

Rather, insisted the plurality, the primary purpose of the Cellmark report “was to catch a dangerous rapist still at large,” and that report therefore did not qualify as a “testimonial” statement. Id. at 84.8 The fifth concurring justice, Justice Thomas, voted with the Alito plurality but disagreed entirely with its rationale. Id. at 104 (Thomas, J., concurring in the judgment) (“As I explain below, I share the dissent’s view of the plurality’s flawed analysis.”). Justice Thomas rejected Justice Alito’s “targeted” “primary purpose” test, id. at 114-118, asserting that it “lacks any grounding in constitutional text, in history, or in logic.” Id. at 114.

In its place, Justice Thomas proposed his own idiosyncratic test, to which no other justice ascribed, namely, that to qualify as “testimonial,” an out-of-court statement must bear “indicia of solemnity.” Id. at 111. Applying that test, Justice Thomas concluded that the Cellmark report, though signed by two “reviewers,” id. at 111, was “neither a sworn nor a certified declaration of fact.” Id. Therefore, according to Justice Thomas, the Cellmark report “lacked the requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation Clause.” Id. at 104 (citation omitted). 8 The