Wilson v. State

³⁵ KENNEY, Judge. In July 1999, Garrett Eldred Wilson, appellant, was convicted by a jury in the Circuit Court for Montgomery County of first-degree murder in connection with the 1987 death of his infant son, Garrett Michael Wilson. He was sentenced to life in prison without possibility of parole. Questions Presented Appellant presents six questions for our review: 1.

Did the trial judge err in admitting expert testimony which encroached on the jury’s function to judge credibility and resolve contested facts? 2. Did the trial judge err in admitting statistical evidence and the expert opinions based on that evidence? 3. Did the trial judge take inadequate corrective action when, in closing argument, the State’s Attorney misrepresented a statistical computation as the probability of appellant’s innocence? 4. Did the trial judge err in prohibiting the defense expert from presenting a basis for his opinion? 5.

Was the evidence rebutting the findings stated in the original death certificates admitted in violation of applicable statutes? 6. Did the trial judge err in admitting evidence of appellant’s alleged murder of his infant daughter six years before the alleged murder in this case? We answer these questions in the negative and shall affirm. Factual Background In 1976 or 1977, when appellant was twenty years old, he began a sexual relationship with Deborah Oliver Fennell, who was then 13 years old.

She testified that appellant “wooed” her by buying her gifts and by leading a relatively expensive lifestyle. Ms. Fennell became pregnant five times in the next three years and, at appellant’s behest, aborted the first four pregnancies. Appellant wanted Ms. Fennell to abort the fifth ³⁶ pregnancy, but the doctor they consulted refused because Ms. Fennell was five months pregnant. The couple then married; Ms. Fennell was 15 years old and appellant was 22.

Ms. Fennell, whose pregnancy was without complications, testified that, when she was seven months pregnant, appellant asked her if she would be “okay” if “anything ever happened to the baby.” On February 25, 1981, Ms. Fennell gave birth to a .daughter, Brandi Jean Wilson. According to Ms. Fennell and her parents, Jean and Kyle Oliver, Brandi was a very healthy baby. Within four weeks of Brandi’s birth, appellant, without his wife’s knowledge, purchased from two separate insurance companies four days apart two life insurance policies in the amounts of $10,000 and $30,000 on Brandi’s life. Appellant was the primary beneficiary for both policies.

The insurance agents testified that, if appellant had told them he was getting two policies, their companies probably would not have sold them to him. Appellant did not feed Brandi or change her diapers, and he did nbt get up during the night to care for her. On the night of April 30, 1981, Ms. Fennell had a cold, and appellant gave her three or four pills that he said were vitamins. After taking the pills, Ms. Fennell slept through the entire night, which she had not done since Brandi’s birth.

That night was the first and only time appellant took care of the baby. Mrs. Oliver had offered to babysit Brandi, as she had often done in the past, while Ms. Fennell rested, but appellant said that he would care for Brandi. Between approximately 3:30 a.m. and 5:30 a.m. on April 30, 1981, Brandi died. At approximately 6 a.m. appellant, rather than calling 911 or waking Ms. Fennell, called the Olivers and told them that Brandi was dead and that they should come over to appellant’s house.

Mrs. Oliver told appellant to call 911, and she and Mr. Oliver left for appellant’s house. Although the fire station was approximately halfway between the Olivers’ house and appellant’s house, and although the Olivers had to dress before coming, they arrived before the ³⁷ paramedics. Mark Cashman, the first paramedic to enter Brandi’s room, testified that he could tell immediately by her stiffness and blue color that she was dead. Ms. Fennell slept so soundly she was not awakened by the arrival of her parents or the police officers who followed.

Her mother shook her awake. Ms. Fennell testified that she put Brandi in the crib on her stomach. In the crib with Brandi were pillows, blankets, stuffed animals, and a comforter. Brandi did not have the ability to roll herself over.

The paramedic, Mr. Cashman, testified that, when he arrived, Brandi was lying face down in the crib. After an autopsy, Brandi’s death was labeled as a Sudden Infant Death Syndrome (SIDS) death. Ms. Fennell, however, told family members and friends that she thought appellant was “involved” in Brandi’s death. Ms. Fennell left appellant four months after Brandi’s death, and they later divorced.

On the same morning Brandi died, appellant called the insurance agent who sold him one of the policies on Brandi’s life and informed him of Brandi’s death. Later that day, appellant played pool and then went flying with a friend. Several witnesses testified that appellant’s demeanor after Brandi’s death, including at the funeral, reflected a lack of emotion. Soon after Brandi’s death, appellant collected the $40,000 in insurance proceeds and made large purchases, including a new Trans Am.

He never informed Ms. Fennell that he had insured the baby, or that he had received the proceeds. She did not learn about the insurance policies until after Brandi’s death. One of Ms. Fennell’s friends, who was dating the agent who sold appellant the $10,000 policy, told her about that policy sometime after Brandi’s death. Ms. Fennell was told by police investigators about the other policy more than a decade after Brandi’s death.

In 1986 appellant became engaged to two women, Mary Anastasi and Elizabeth Bahlmann, during the same period of time and scheduled weddings for March and June 1986. Ms. ³⁸ Bahlmann testified that appellant, who was then working as a salesman at a health club, frequently gave her expensive gifts and often persuaded her to pay for the gifts. In March 1986 he married Ms. Anastasi in Maryland, and in May 1986 he and Ms. Bahlmann filed for a marriage license in Virginia. On that same day, however, Ms. Bahlmann surreptitiously looked at papers in appellant’s wallet and discovered that he was already married.

Ms. Bahlmann informed appellant that he owed her $8,500 for the wedding preparations she had made and for the gifts he had purchased for her with her credit card. Appellant promised to pay this amount, and began making payments toward the total. In late 1986 appellant began socializing with still another woman, Julie Stinger, giving her expensive gifts. He also persuaded her to lend him $5,250.

Appellant also owed $1,000 to his uncle, Donald Ward. Ms. Anastasi gave birth to appellant’s son, Garrett Michael Wilson, on March 22, 1987. Ms. Anastasi testified that appellant interacted with the baby very infrequently, never feeding him or changing his diapers. Within five weeks of Garrett Michael’s birth, appellant approached two separate insurance companies and purchased two life insurance policies on the child’s life in the amounts of $50,000 and $100,000.

According to the insurance agents and the documents maintained by the insurance companies, appellant did not inform either company of the other insurance policy. Appellant was the primary beneficiary for both policies, and his wife was unaware of the policies until after he had purchased them. Appellant discussed marriage with Ms. Stinger, but she eventually discovered that he was already married and had a child. She demanded that he repay the money she had lent him.

Appellant told Ms. Stinger that he had not wanted a child and that Ms. Anastasi had had the baby against his wishes. ³⁹ In August 1987, as appellant was preparing to go to Bethany Beach for a weekend with Ms. Anastasi and Garrett Michael, he spoke with Ms. Stinger, who was “pushing really hard” for the return of her money. Appellant told her he would have the money “soon” because he was “going to take care of it this weekend.” Ms. Anastasi had researched SIDS, because appellant told her that Brandi died of SIDS, and she thought the two babies’ genetic similarities might make Garrett Michael susceptible to SIDS. On August 12, 1987, during the trip to Bethany Beach, Ms. Anastasi remarked to appellant that, as Garrett Michael was then five months old, he had made it to an age when SIDS deaths were far less common. In her words, he was “out of the woods.” Appellant did not reply to her comment.

On August 13, 1987, after returning from the beach, appellant told Ms. Stinger that he would be getting the money to repay her “real soon.” Garrett Michael died nine days later, at approximately 6 a.m. on August 22, 1987. The morning of Garrett Michael’s death was the first occasion appellant took care of him without Ms. Anastasi present. The couple was in bed when the baby cried. When Ms. Anastasi began to get up to feed the baby, appellant said that he would feed him.

Ms. Anastasi was surprised because it was the first such offer appellant had made. When appellant went into Garrett Michael’s room, Ms. Anastasi, listening via a room monitor, could hear footsteps approaching the crib, and then creaking sounds from a rocking chair in the nursery. The rocking-chair sounds continued for approximately seven minutes, and then she heard a “patting sound.” She next heard footsteps approaching the crib again, and a “sigh” similar to “expelling air.” This last sound concerned her, but she was not overly alarmed. She reasoned that, if appellant had a problem, he would call her.

She then got up and went downstairs to feed her two cats, who had been pestering her for food. Afterwards, she went upstairs to Garrett Michael’s room. Appellant was no longer there. She immediately ⁴⁰ noticed that the baby did not “feel right,” and there was foam around his mouth.

He was limp when she picked him up. Ms. Anastasi ran back to her bedroom with the baby and met appellant as he was walking out of the bathroom. She screamed at appellant: “Garrett, what did you do to him?” Appellant, whose face she described as being “pale” at the time, did not respond. He silently walked away when Ms. Anastasi asked him to call 911.

Ms. Anastasi called 911 herself and attempted CPR per the instructions she received from the 911 dispatcher. She also had to go downstairs herself to turn on the house lights to guide the paramedics to the house. Paramedics arrived and rushed Garrett Michael to Shady Grove Hospital. After the ambulance left the house, appellant and Ms. Anastasi went to her two-door Saab to follow the ambulance to the hospital.

Before leaving, appellant removed the baby’s car seat from the back seat. Garrett Michael was pronounced dead at the hospital. While in the ambulance his heart had been fibrillating, i.e., beating at a very fast, non-sustainable rate. Dr. Charles Kokes, one of the State’s expert witnesses at trial, testified that, based on the fibrillation, the baby was probably alive within the fifteen minutes before CPR began.

An EKG reading obtained by the paramedics in the ambulance showed that Garrett Michael’s body still contained electronic waves, indicating that he had just died or was in the process of dying. One paramedic testified that the baby’s heart may have been beating regularly four minutes before the paramedics began CPR. After an autopsy, Garrett Michael’s death was labeled a SIDS death. On the day Garrett Michael died and the next day, Ms. Anastasi expressed to three family members and friends her opinion that appellant had murdered Garrett Michael for the insurance money.

Testimony was adduced concerning appellant’s apparently unemotional demeanor after the baby’s death. At the funeral appellant greeted his uncle, Donald Ward, with the comment that “[i]t is most unusual to have two SIDS deaths in one ⁴¹ family.” Ms. Anastasi testified that, although she initially believed appellant murdered Garrett Michael, she did not leave him because other people, including the director of a STDS support group, assured her that any “foul play” would have been revealed by the autopsy. Within a week of Garrett Michael’s death, appellant told Ms. Stinger that, inasmuch as he had “taken insurance policies out on the baby,” he would soon have money to repay her. He told Ms. Stinger he bought the policies “in case the baby died.” Appellant collected the $150,000 in insurance proceeds and paid Ms. Stinger the $5,250 he owed her.

He also called Ms. Bahlmann and informed her that he had had a baby, that the baby had died, and that he would soon be receiving insurance proceeds from which he could repay the last of his debt to her. Even though he had had several conversations with Ms. Bahlmann between March and August of 1987, he had not told her about the baby. Appellant made many expensive purchases after receiving the insurance money, including at least five expensive gifts of jewelry for Ms. Anastasi. On one occasion, appellant showed Ms. Anastasi $10,000 in cash, which he said was part of the insurance money.

Appellant and Ms. Anastasi were divorced in 1998 or 1994, at approximately the same time that Ms. Anastasi discovered that appellant had been maintaining a marriage in Texas to a woman named Vicki Lynn Wilson, with whom he had a child. Discussion I. The State presented testimony from four medical experts about the deaths of Brandi and Garrett Michael: Dr. Ann Dixon, Maryland’s Deputy Chief Medical Examiner, who performed the autopsy on Brandi in 1981; Dr. Charles Kokes, a forensic pathologist who worked in the Maryland Medical Examiner’s Office in 1987 and performed the autopsy on Garrett Michael; Dr. John Smialek, Maryland’s Chief Medical Examiner; and Dr. Linda Norton, a forensic pathologist in ⁴² private practice specializing in pediatric deaths. Appellant contends that the trial judge erred by allowing these witnesses to testify about their opinions concerning the deaths of Brandi and Garrett Michael. Appellant believes that their testimony “encroached on the jury’s function to judge credibility and resolve contested facts.” In particular, appellant contends that the court erred by allowing the witnesses to testify that the infants died of suffocation or “probable suffocation” and that the deaths were homicides.

Maryland Rule 5-702 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- Maryland Rule 5-704 provides, in pertinent part: (a) In general. Except as provided in section (b) of this Rule [concerning testimony about the mental state of defendants], testimony in the form of an opinion or inference otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact. “[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court and its action will seldom constitute a ground for reversal.” Myers v. Celotex Corp., 88 Md.App. 442, 460 , 594 A.2d 1248 (1991), cert. denied, 325 Md. 249 , 600 A.2d 418 (1992). “A trial judge’s decision to admit or exclude expert testimony will be reversed only if it is founded on an error of law or some serious mistake, or if the judge has abused his discretion.” Franch v. Ankney, 341 Md. 350, 364 , 670 A.2d 951 (1996) (citation omitted). ⁴³ It is quite clear that an expert’s conclusion is inadmissible if it requires that witness to resolve internally conflicting material facts involved in the question, prior to rendering his opinion. The rationale for excluding conclusions based on a question having internally contested facts is that the expert is required to make a judgment which invades the jury’s province.

Under such circumstances, the proper way to submit a hypothetical question is to ask the witness to presume the truth of certain facts as if they were not the subject of dispute. Kruszewski v. Holz, 265 Md. 434, 444-445 , 290 A.2d 534 (1972) (citation omitted). According to Md. Rule 5-702, which codified the modern common-law rule regarding expert testimony, a trial court must determine whether the evidence to be presented is a proper subject of expert testimony. The inquiry turns on whether the trier of fact will receive appreciable help from the expert testimony in order to understand the evidence or to determine a fact in issue.

The trial court need not consider whether the trier of fact could possibly decide the issue without the expert testimony. Nor must the subject of the expert testimony be so far beyond the level of skill and comprehension of the average layperson that the trier of fact would have no understanding of the subject matter without the expert’s testimony. Sippio v. State, 350 Md. 633, 648-649 , 714 A.2d 864 (1998) (citations omitted). The trial court must determine whether the three requirements of Md. Rule 5-702 have been satisfied.

Id. We now turn to the specific subjects on which expert witnesses may offer their opinion in the context of forensic pathology. Appellant argues that none of the State’s experts should have been allowed to testify as to whether the death in this case was the result of a homicide, which is a finding on manner of death. Appellant argues that a finding on the manner of death is the responsibility of the jury, and he cites ⁴⁴ case law from various jurisdictions in support of this claim.

We can resolve this question with Maryland law. The recent case of Sippio v. State is instructive. In that case, the Court of Appeals considered whether a trial court erred by allowing Dr. Smialek, the Chief Medical Examiner, to opine that a woman, who died of a gunshot wound, was the victim of a “homicide” rather than an “accident.” A crucial issue was whether the medical examiner could testify about the “manner” of the deceased’s death in addition to the medical “cause” of her death. The Court stated that the “cause” of death refers to the disease, process, or condition that led to the death, and the “manner” of death refers to whether the death was natural or unnatural.

A death deemed “unnatural” may be sub-classified as an accident, suicide, homicide, or “undetermined.” Sippio, 350 Md. at 643 , 714 A.2d 864 . In Maryland, statutes define the role that medical examiners perform in investigating deaths. Maryland Code (1982, 1994 Repl.Vol., 1999 Supp.), Health-General Article (“H.G.”), § 5-301 et seq. H.G. § 5-311 provides, in pertinent part: (a) (1) The Chief Medical Examiner and, as to their respective counties, each of the deputy medical examiners shall keep complete records on each medical examiner’s case.

(2) The records shall ... include: (i) The name, if known, of the deceased; (ii) The place where the body was found; (iii) The date, cause, and manner of death; and (iv) All other available information about the death. (Emphasis added.) In Sippio , the Court of Appeals described the statutory framework as follows: Section 5-301 et seq. of the Health-General Article establishes the State Postmortem Examiners Commission and sets forth the procedures for the medical examiner to follow where death occurs as a result of, for example, suicide, violence, etc. Where such deaths occur, § 5-309 requires ⁴⁵ the medical examiner to investigate. Section 5-311 requires the medical examiner to keep complete records of each such case. As part of the medical examiner’s investigation, the medical examiner receives notice from the police or sheriff of “facts concerning the time, place, manner, and circumstances of the death.” § 5-309(b). [1] The medical examiner shall perform an autopsy if the medical examiner considers it necessary. § 5-310.

If so, the autopsy report is attached to the record of the medical examiner’s case pursuant to § 5—311(b). After the medical examiner’s report and autopsy are completed and after performing an investigation, the medical examiner then “deliverfs] to the State’s Attorney for the county where the body was found a copy of each record that relates to a death for which the medical examiner considers further investigation advisable.” § 5—311(c). This record 5 can be used as “competent evidence in any court in this State of the matters and facts contained in it.” § 5—311(d)(2). Before 1990, it was the practice of the medical examiner to record the manner of death on a death certificate form.

It was not until a 1990 amendment to the Health-General Article, however, that the legislature specifically added “manner of death” to the list of items that a medical examiner was to record in the records of each case. See Chapter 238 of the Acts of 1990 (amending § 5-311 (a) (2) (iii)). At that time, the legislature did not define manner of death, nor did it mandate how manner of death should be expressed in the medical examiner’s records. ⁴⁶ Sippio, 350 Md. at 645-646 , 714 A.2d 864 (some footnotes omitted). In reaching a conclusion as to the cause and manner of death, the medical examiner is to use information provided to him by the police, including “the known facts concerning the time, place, manner, and circumstances of the death.” H.G. § 5-309(b) (emphasis supplied).

The medical examiner may use information outside the autopsy itself to make the determinations required by law. Indeed, such outside information may be crucial to a manner of death determination. In Schlossman v. State, 105 Md.App. 277 , 659 A.2d 371 (1995), for example, this Court held that a medical examiner’s opinion concerning the manner and cause of a man’s death had an adequate foundation, even though it was based on information gathered from police reports. Schlossman was charged with involuntary manslaughter in connection with the death of Baldwin, whom Schlossman found unconscious and severely intoxicated on his property.

Schlossman and his companions had poked Baldwin with sticks, urinated on him, and poured paint on him. When Baldwin showed signs of consciousness, Schlossman and his companions rolled Baldwin into a ditch four feet deep, threw stones and a mattress at him, and kicked trash on him. Baldwin attempted unsuccessfully to crawl out of the ditch. The next day Schlossman and his friends returned to the location and discovered that Baldwin was dead.

They buried Baldwin, breaking his leg to fit him into the hole they dug. Schlossman, 105 Md.App. at 281 , 659 A.2d 371 . The following year, Baldwin’s body was discovered by Annapolis police officers. An assistant medical examiner, Dr. Golle, conducted an autopsy and discovered that Baldwin’s coronary arteries were almost completely obstructed by atherosclerosis and that the body had several fractures and lacerations, although these may have occurred after death.

Dr. Golle was initially unable to specify a cause of death. Schlossman, 105 Md.App. at 281-282, 659 A.2d 371 . ⁴⁷ After receiving copies of police reports and witnesses’ statements, Dr. Golle concluded that Baldwin died of severe coronary artery disease and that the manner of death was a homicide; the doctor stated that Baldwin died of a “heart attack while involved in an altercation.” Schlossman, 105 Md.App. at 282 , 659 A.2d 371 . Dr. Golle also testified that Baldwin had had serious health problems related to his alcoholism, including cirrhosis of the liver, alcohol liver disease, delirium tremens, seizures, and chronic obstructive pulmonary disease. In Dr. Golle’s opinion, the stress Baldwin experienced while being harassed by Schlossman and his companion caused Baldwin to suffer a myocardial ischemia, similar to a heart attack.

Dr. Golle testified that he formed his opinion about the cause of death “based on his review of the autopsy and information in the police reports.” Schlossman, 105 Md.App. at 294 , 659 A.2d 371 . Schlossman challenged his conviction, arguing that Dr. Golle’s opinion lacked an adequate foundation. This Court affirmed, stating: [Schlossman] has not stated, nor have we found, any evidence demonstrating that Dr. Golle’s opinion as to the cause of the victim’s death was based on facts that were not adduced at trial. Dr. Golle’s responses indicate that he did not rely on the specific version of the events set forth in the police reports in concluding that Baldwin was the victim of a homicide.

In other words, he did not conclude that the victim died as a result of injuries that he may have sustained after allegedly being hit with stones, trash, paint, and urine, or as a result of any other of the specific acts mentioned in the police reports. In contrast, Dr. Golle based his conclusion on the simple fact that the victim was involved in a stressful “altercation” with [Schlossman] and others; whether the victim suffered any specific injuries as a result of the altercation was immaterial to Dr. Golle. That the victim was involved in such an altercation with [Schlossman] the day before he was found dead was established by evidence at trial, prior to Dr. Golle’s testimony, through witnesses who described the events surrounding ⁴⁸ the victim’s death. Under these circumstances, we conclude that Dr. Golle’s testimony was supported by a sufficient factual basis and that the court did not abuse its discretion in admitting it.

Schlossman, 105 Md.App. at 295-296 , 659 A.2d 371 . For a pathologist, [determining the manner of death involves correlating the circumstances that surround the death with the findings at the autopsy and any eyewitness accounts. The medical examiner may . also attempt to determine the sequence of events with the information available. Thus, the medical examiner has a wide range of information at his disposal in order to make a finding.

R. Taylor, R. Bux, and D. Kirk, Forensic Pathology in Homicide Cases, 40 Am.Jur. Trials 501, 540, 541 (1990). It is not outside the forensic pathologist’s duties to develop a crime scene scenario if an acceptable theory has not already been advanced. It is possible that none of the advanced theories explain the evidence, in which case a new theory is needed.

There also may be so little evidence that it is impossible to make any statements as to the circumstances of the death. Taylor, et al., 40 Am.Jur. Trials at 581. A good example of the steps a medical examiner takes in developing an opinion is contained in Sippio .

In that case, the defendant admitted that he had fired the shot that killed the deceased. His defense was that the shot was accidental. The medical examiner, Dr. Smialek, testified, in pertinent part, as follows: [Dr. Smialek:] I had information that [Sippio] had told the police that he had shot Ms. Branch. [Defense Counsel:] And did that aid you in coming up with the conclusion that it was not a natural, accidental, suicidal or undetermined cause of death? [Dr. Smialek:] I considered that information together with the physical findings on the body, the fact that the wound ⁴⁹ was not a typical contact gunshot wound such as I would see in a suicide. So that the form from the investigation together with my findings at the autopsy allowed me to reach a conclusion that this was a homicide, ivhich means that someone else fired, a weapon to kill Ms. Branch.” (Emphasis added). [Defense Counsel:] If a shooting is an accidental shooting and you examined the body of that accident victim not knowing whether it is an accident or not, and the cause of death is a gunshot wound to the head, would you use the block homicide to check off your findings? [Dr. Smialek:] I’m not sure I understand your question.

If the information available to me indicates that a gunshot wound was the result of an accident such as a gun falling onto a floor and discharging, I would call [it] an accident. Is that what the form from the investigation to go with my examination led me to believe? I would not call an accident a homicide. I wouldn’t call a homicide an accident. [Defense Counsel:] And homicide has a lot of different categories, does it not, sir? [Dr. Smialek:] Legally there are categories for homicides, yes. [Defense Counsel:] What would those categories include, if you know? ❖ * * [Dr. Smialek:] There are categories that include self defense, categories that allow a homicide that’s caused in the course of say police action to be excusable.

Those are some of the categories. Self defense is a categorization of homicide. [Defense Counsel:] All of that would be included under your check mark of homicide, correct? [Dr. Smialek:] I don’t consider those particular factors. ⁵⁰ What leads to the homicide, whether it was intentional or unintentional in reaching my conclusion, those are legal issues. [Defense Counsel:] So intent, what caused that person to be on your table, is not part of your conclusion in this report, is that correct? [Dr. Smialek:] That’s right. The intent of the person who pulls the trigger isn’t something that I can consider. Sippio, 350 Md. at 650-662 , 714 A.2d 864 (emphasis in original).

The definition of “homicide” is central to an understanding of this issue, and, indeed, appellant argues that a finding of homicide on its own somehow inevitably leads to a conclusion of appellant’s guilt in this case. Homicide is the “killing of one person by another.” Black’s Law Dictionary 739 (7th ed.1999). The sixth edition of BLACK’S explained: Homicide is not necessarily a crime. It is a necessary ingredient of the crimes of murder and manslaughter, but there are other cases in which homicide may be committed without criminal intent and without criminal consequences ....

The term “homicide” is neutral; while it describes the act, it pronounces no judgment on its moral or legal quality. Black’s Law Dictionary 734 (6th ed.1990). See Sippio, 350 Md. at 654 , 714 A.2d 864 . The seventh edition states: “The legal term for killing a man, whether lawfully or unlawfully, is ‘homicide.’ There is no crime of ‘homicide.’ Unlawful homicide at common law comprises the two crimes of murder and manslaughter.

Other forms of unlawful homicide have been created by statute: certain new forms of manslaughter (homicide with diminished responsibility, and suicide pacts), infanticide, and causing death by dangerous driving.” Black’s Law Dictionary 739 (7th ed.1999) (quoting Glanville Williams, Textbook of Criminal Law 204 (1978)) (emphasis in original). ⁵¹ We return to the question of whether the pathologists’ testimony in this case about the manner of death constituted a finding on an ultimate issue. In deciding this issue, the Sippio Court pursued a two-part analysis. First, the Court addressed the defendant’s argument that it was improper for the medical examiner to testify that the manner of death was homicide because that testimony, “when juxtaposed with such concepts as accident, suicide, and natural causes ... clearly takes on a criminal connotation,” and reached a legal conclusion reserved for the jury. Sippio, 350 Md. at 643 , 714 A.2d 864 .

The Court reasoned that, in light of the Health-General Article’s requirements concerning medical examiners, to prohibit medical examiners from testifying about their findings as to manner of death, which those witnesses are “required by law to denote and record for possible use at trial ... would be akin to holding that medical examiners are not qualified to determine manner of death, or that medical examiners’ findings are generally unreliable evidence in a court of law.” Sippio, 350 Md. at 647 , 714 A.2d 864 . The Court held that the legislature’s inclusion of the phrase “manner of death” in the 1990 statutory amendment referenced above “made it abundantly clear that the legislature intended to bring the determination of manner of death into the province of the medical examiner’s duties.” Sippio, 350 Md. at 647 , 714 A.2d 864 . In Benjamin v. Woodring, 268 Md. 593, 605 , 303 A.2d 779 (1973), the Court of Appeals affirmed a trial court’s decision not to admit into evidence a death certificate classifying the decedent’s death as a suicide, because doing so would have supported the argument of a party seeking to show that the decedent had a reduced testamentary capacity before his death. In Sippio , the Court distinguished Benjamin and quoted approvingly Terry v. State, 34 Md.App. 99 , 366 A.2d 65 (1976), in which this Court also distinguished Benjamin .

In Terry , this Court explained: In spite of the suggestion by the Court [in Benjamin ] that the investigative duties of medical examiners are limited by law to ‘essential facts concerning the medical causes of death,’ we cannot conceive that this precludes calling the ⁵² medical examiner as an expert witness to express his opinion in a case. Once called, testifying under oath, subject to the requirement that he state the basis for his conclusion and be subject to cross-examination, an entirely different situation exists than an effort to introduce that opinion into evidence solely on the basis of a death certificate. Terry, 34 Md.App. at 107-108 , 366 A.2d 65 . Thus, in Sippio , as in Terry , the reviewing court concluded that there is no per se prohibition on receiving testimony from medical examiners about the manner in which a decedent died.

Sippio, 350 Md. at 648 , 714 A.2d 864 . In Sippio , the Court of Appeals then analyzed the medical examiner’s specific testimony in light of the general legal standard for expert testimony. The Court held that the medical examiner was qualified as an expert, thus satisfying Md. Rule 5-702(1); that expert testimony was appropriate for the subject about which the medical examiner was testifying, i.e., the results of a gunshot wound on a human body, thus satisfying 5-702(2); and that a legally sufficient factual basis existed to support the expert’s testimony. Rule 5-702(3).

Sippio, 350 Md. at 649-653 , 714 A.2d 864 . The Court of Appeals in Sippio considered and rejected the defendant’s argument that the medical examiner’s testimony was improper because it was a legal conclusion “appropriately committed to the judgment of the trier of fact.” Sippio, 350 Md. at 653 , 714 A.2d 864 . The Court of Appeals rejected this contention for two reasons: first, Md. Rule 5-704(a) specifically provides that opinion testimony “otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.” If the opinion testimony of an expert embraces an ultimate issue to be decided by the jury, the trial court determines, under Md. Rule 5-702, whether the testimony will be helpful to the trier of fact. Sippio, 350 Md. at 654 , 714 A.2d 864 .

The exception to Rule 5-704(a), as provided in 5-704(b), is that an expert is precluded from testifying as to whether the defendant possessed the requisite mental state that constitutes “an element of the crime charged.” The Court determined that the medical examiner’s ⁵³ testimony did not trigger this one exception to Rule 5-704(a), and it was thus permissible. Sippio, 350 Md. at 654 , 714 A.2d 864 . The Court also rejected Sippio’s argument because “whether [the decedent’s] death was a homicide was not the ultimate issue in this case, and [the medical examiner’s] opinion on [the decedent’s] manner of death was not a legal conclusion reserved for the trier of fact.” Sippio, 350 Md. at 654 , 714 A.2d 864 . After explaining “homicide” does not itself necessarily denote a crime, the Court observed: “To secure a conviction of first- or second-degree murder, the State bore the burden to prove beyond a reasonable doubt that Sippio intentionally shot [the decedent].

Only the jury could decide whether Sippio possessed the requisite mental state for such a conviction.” Sippio, 350 Md. at 655 , 714 A.2d 864 . The jury, before assessing criminal culpability, first had to decide whether a homicide had even occurred. The Court noted that “[the medical examiner] did not testify to Sippio’s intent, but rather merely testified that [the decedent’s] death occurred as a result of a homicide.” Sippio, 350 Md. at 655 , 714 A.2d 864 . The Court held: [H]omicide in itself does not equate to criminal culpability; instead it is the killing of one human being by another ..., regardless of the intent of the party who commits the act.

We, thus, find no merit to Sippio’s contention that [the medical examiner’s] testimony invaded the province of the jury. Sippio, 350 Md. at 655 , 714 A.2d 864 . In the present case, the essence of a SIDS diagnosis was a central but not the ultimate issue. According to the testimony of the State’s expert witnesses, SIDS is not itself a specific cause of death.

Rather, SIDS is a classification given to infant deaths that match certain criteria but have no discernible cause. In other words, it is a diagnosis of exclusion. SIDS diagnoses are made when babies who appear to have been in good health suddenly stop breathing with no apparent physical explanation. Fewer deaths were diagnosed as “SIDS ⁵⁴ deaths” in the United States in the 1990s than in the 1970s or 1980s.

This decrease coincides with the “Back to Sleep” publicity campaign, which encourages parents to put their infants to sleep on their backs, rather than on their stomachs. The decrease in the number of SIDS diagnoses also could be attributed to the increased ability to identify the exact cause of death. The State’s medical experts testified that deaths labeled as SIDS deaths are generally not viewed as being caused by genetics, although appellant’s medical expert testified that some infants may have genetic predispositions that render them more apt to suffer a SIDS-type death. The experts testified that studies show that deaths labeled as SIDS deaths occur more commonly under certain circumstances: in non-Caucasian families, in homes with tobacco smokers, and when babies are put to sleep face down.

Of course, if a specific, recognizable cause of death is identified for a particular deceased infant, such as a reaction to tobacco smoke or suffocation caused by a blanket blocking the infant’s airways, that death would no longer be properly classified as a SIDS death. The State’s experts noted that many deaths that were attributed to SIDS in the past may have actually had other causes. In this context, the investigative report takes on particular significance, because it can give the medical examiner clues to explain the death that the autopsy did not. In this case, the investigation reports proved especially important.

Prior to addressing the substance of appellant’s arguments with respect to each of the State’s expert witnesses, we must dispose of the State’s argument that appellant failed to preserve this issue for appeal. We note that, prior to the testimony of the experts, appellant requested and received a standing objection to “any medical witnesses ... to testify to either manner or cause of death because the State has not finishfed] its amendment to a vital record procedures [sic] as set out under Health General Section 4-214 to modify the death certificate.” Generally, grounds for objection not raised at trial and then brought up on appellate review are not ⁵⁵ preserved. Fearnow v. Chesapeake & Potomac Telephone Co. of Maryland, 342 Md. 363, 379 , 676 A.2d 65 (1996) (citing Black v. Leatherwood Motor Coach Corp., 92 Md.App. 27, 33-34 , 606 A.2d 295 , cert. denied, 327 Md. 626 , 612 A.2d 257 (1992)). Nevertheless, appellant did raise the grounds below that he has raised on appeal, although he did not make the objection until after Dr. Koke and Dr. Dixon had testified.

The objection took place prior to the testimony of Drs. Smialek and Norton: I again renew my motion, and I want to—that he should not be allowed to testify to any of the facts that would contravene or go against the original autopsy findings, without having followed the proper procedure. I am going to ask you at this time to strike the testimony of Dr. Kokes and Dr. Dixon on the basis that their testimony was not expert testimony. And the same is going to apply for Dr. Norton later.

I will ask you not to receive hers and, if you do, to strike it, because these witnesses all are, as I think I figured out— are rendering opinions that are solely within the jury’s province. They are usurping the jury’s position, because if I understand it, there are no changes in any medical testimony. They are all using either statistics or extraneous—extraneous—other stuff, like life insurance, as a basis. Those are things that are solely within the province of the jury.

The trial court was thus on notice that appellant was raising objections on this ground. Not specifically designated as a continuing objection with respect to Drs. Smialek and Norton, appellant continued to object to the experts’ testimony. Although not a model of preservation, we believe that we may nevertheless address the substance of these issues.

All of the experts discussed below were qualified as experts under Md. Rule 5-702(1) and were testifying on subjects appropriate to their area of expertise—forensic pathology. Md. Rule 5-702(2). Thus, our discussion will focus on whether each ⁵⁶ expert’s opinion was supported by a legally sufficient factual basis. Md. Rule 5-702(3).

With respect to the latter issue, all of the information from the investigative reports the experts had relied on in formulating their opinions and findings had been entered into evidence prior to the experts’ testimony. Dr. Dixon Dr. Dixon testified that during Brandi’s autopsy in 1981 she found no apparent signs of injury or disease. There was no swelling of the brain. Because she was unaware of any suspicious circumstances concerning the death, in 1981 Dr. Dixon labeled the cause of death as SIDS and the manner of death as “natural.” She identified certain elements of the autopsy findings, such as pinpoint hemorrhages on the thymus gland, in front of the heart, and on the surfaces of the lungs and heart, which were consistent with suffocation but were not enough, by themselves, to lead her to opine that suffocation was the cause of death.

In 1998, detectives contacted Dr. Dixon and asked her to analyze Brandi’s death again. Based upon new information provided to her, including witnesses’ statements and information about the insurance policies, she changed her conclusion regarding the cause of Brandi’s death to “probable suffocation” and the manner of the death to “undetermined.” She defined suffocation as the cutting off of the baby’s air supply by “some external means.” Dr. Dixon opined that Brandi did not die naturally, but she could not definitively conclude that the death was a homicide. Appellant argues that, because Dr. Dixon stated that the police reports contained “useful information,” for her “the insurance was a factor in [her] ultimate conclusions and [she] drew an incriminating inference from it.... [Resolution of such contested facts is for the jury, not the experts.” Regarding Dr. Dixon and the other expert witnesses, appellant contends that their testimony was erroneously admitted because it “encroached on the jury’s function to judge the credibility of the witnesses and weigh their testimony and on the jury’s function to resolve contested facts.” ⁵⁷ We conclude that Dr. Dixon’s testimony was properly admitted. She used information in police reports as well as her autopsy to come to her conclusions on the cause and manner of death.

Dr. Dixon did not, as appellant contends in his first theory of error, judge the credibility of other witnesses. She did read witnesses’ statements contained in the police reports, but she, like all of the experts, conceded that if those statements were wrong or false her opinion could change: Q [by defense counsel]: ... So you listened to [the detective]. She tells you some stuff.

And based on the stuff she tells, you accept it as the Gospel. And based on accepting that as the Gospel, you, as a medical examiner, change your opinion—not based on a scientific fact but based on an investigation, true? A: I do not accept it as the Gospel, and I do not accept it as fact as such. But I accept it as useful information which coupled with my essentially negative autopsy, which is the same essentially negative autopsy that was in 1981.

Now with this new information, yes, I think it is throws [sic] a different light on the whole matter. And, yes, I changed the manner and cause of death appropriately. We are not dealing with just one piece of information here. I am dealing with the whole amount of information that was furnished to me.

I am not taking an isolated fact. Regarding the second of appellant’s two theories, that Dr. Dixon testified about an ultimate issue in the case, we first note that, like the medical examiner in Sippio , Dr. Dixon’s testimony did not concern the ultimate issue at trial. At appellant’s trial the ultimate issue was whether he murdered Garrett Michael. Dr. Dixon’s testimony concerned whether Brandi’s death was due to natural causes, an accident, or the actions of another human being, and not appellant’s mens rea.

Moreover, Dr. Dixon did not opine that Brandi definitely had been suffocated by another human being. She merely classified the cause of her death as a “probable suffocation,” without ⁵⁸ a specified cause, and the manner of her death as “undetermined.” The trial court did not err in admitting Dr. Dixon’s testimony. Dr. Kokes The State also presented testimony from Dr. Charles Kokes, a forensic pathologist who had worked in the Maryland Medical Examiner’s Office in 1987 and performed the autopsy on Garrett Michael. In performing the autopsy, Dr. Kokes discovered no evidence of external or internal trauma or abnormalities that would explain Garrett Michael’s death.

The baby’s brain was swollen, but he believed that could have been due to resuscitative efforts made by medical personnel. The baby had also had ventricular fibrillation, an irregular heartbeat, during the ambulance ride to the hospital. At the time of the autopsy, Dr. Kokes labeled the cause of death as SIDS and the manner of death as natural. No police investigation was conducted at the time of Garrett Michael’s death, so Dr. Kokes relied solely on information generated by medical personnel and his own autopsy.

In 1997, Maryland prosecutors brought Dr. Kokes more information regarding Garrett Michael’s death, including statements from Ms. Anastasi, information about Brandi Jean’s death, and the insurance information. After considering all of the information now available to him, Dr. Kokes determined that the cause of Garrett Michael’s death was smothering and the manner of the death was homicide. Dr. Kokes testified that, apart from the medical findings and investigatory reports, one of the reasons he now believed that the manner of death was homicide was because of the rarity of two or more SIDS deaths occurring in the same family. He stated that it is “common knowledge in the general field of forensic pathology” that SIDS deaths rarely reoccur within the same family.

Dr. Kokes also provided more specific statistics obtained from death certificates within the United States from 1979. Despite the age of the statistics, Dr. Kokes stated that the ⁵⁹ data remained consistent through 1987. For every 1,000 live births of Caucasian infants, 1 or 2 deaths occurred that were labeled as SIDS deaths. 2 Brain swelling (edema) was present in only 1 out of every 100 deaths attributed to SIDS. Dr. Kokes testified that the probability of Garrett Michael dying from SIDS, with edema, was therefore 1 in 100,000 (i.e., 1 in 1.000 live births, multiplied by 1 in 100 SIDS cases with edema).

Dr. Kokes explained that, in light of that statistic, the probability that a second baby in the same family would also die from SIDS would be 1 out of 100,000,000 (i.e., 1 in 100.000 multiplied by 1 in 1,000). He characterized this'figure as “a very rough estimate,” but he said that the odds of such a coincidence were “so low [as] to make it impossible.” Dr. Kokes stated that, in his opinion, SIDS is not caused by genetic factors. He agreed that SIDS deaths occur more often in homes with tobacco smokers and also occur more often when babies are put face down in their beds. Dr. Kokes testified that he believed an obstruction was placed over Garrett Michael’s airways, causing his death, “either a hand or something akin to a towel or pillow,” or perhaps a blanket.

Dr. Kokes added that, because it takes less force to smother an infant than it does an adult, markings that might indicate smothering are often absent. In evaluating the testimony of Dr. Kokes, we engage in the same analysis as we did in evaluating Dr. Dixon’s testimony. We hold that Dr. Kokes’s testimony satisfied the three-pronged test of Md. Rule 5-702. Like Dr. Dixon’s testimony, Dr. Kokes’s testimony did not address the ultimate issue of whether appellant murdered his infant son.

Rather, Dr. Kokes’s testimony addressed the threshold question, the cause and manner of Garrett Michael’s death: Q [by the State]: And so it would be accurate to say that [a second infant dying in a family that had a SIDS death with edema] would occur in 1 in 100,000,000 live births? ⁶⁰ A: Well, that is going to be a roughly—a very rough estimate. These numbers serve to illustrate the basis for my change in opinion regarding, first of all, the manner of death. And that is how I have approached review of this particular case—by looking first of all at the investigative information that was brought forth and then looking at the anatomic pathology finding[s] which have not changed since 1987, and re-examining those, reviewing those in light of this new investigative information. He did not identify the person who may have been responsible for the baby’s death.

As was the case in Sippio , and indeed with all of the medical experts who testified for the State at appellant’s trial, Dr. Kokes was subject to vigorous cross-examination. 3 Appellant was able to demonstrate to the jury elements of Dr. Kokes’s reasoning process, particularly concerning the statistical evidence and Dr. Kokes’s unfamiliarity with some of the sources of his knowledge, which might cause the jury to question Dr. Kokes’s opinions. ⁶¹ The trial court did not err in admitting Dr. Kokes’s testimony. His testimony concerned a finding based on factors that he could consider and that were in evidence. Dr. Smialek Dr. John Smialek, Maryland’s Chief Medical Examiner, explained how the medical examiner’s office goes about evaluating cause and manner of death in various cases: A: Well, the first element of a determination of cause and manner of death, as set out in the statute, is that we investigate the circumstance of the death. And that includes information regarding where that person was found, any information that family members might provide about that particular death, information regarding the person’s medical condition.

And then the other element is the autopsy examination, the physical examination of the body. That includes an external and internal examination of the organs, then a microscopic examination of the internal structures, a toxicological examination, and any other tests that might be indicated in that particular death. All of that information is then evaluated, and we are responsible for reaching conclusions as to the cause and manner of death after that has been completed. Q [by the State]: Why is it important to gather investigatory information about the circumstances of the death in order for you to make a determination of the cause and manner of death?

A: Well, most importantly, the investigation assists a medical examiner in determining the manner of death. For example, a cause of death may be determined to be a gunshot wound to the head. That would certainly explain why that person died. But the circumstances might indicate that that person committed suicide, fired that weapon themselves and caused their own death. ⁶² Or there might be evidence to indicate that the gun fell to the floor, went off accidentally, and struck that person in the head.

That would make the death accidental. Or there might be information to indicate that someone else fired the weapon, and that would make the manner of death a homicide. All with the same cause of death. So, it is an essential part of the function that a medical examiner carries out to review evidence regarding the circumstances of the death.

Dr. Smialek went on to testify about SIDS deaths in particular. He explained that babies die from SIDS when a central nervous system abnormality interrupts heart activity and breathing. He stated that in 1989 a commission sponsored by the National Institutes of Maternal Health altered the recommended criteria for a SIDS diagnosis, lowering the upper age limit from two years to one and suggesting that a complete examination, including an autopsy, an evaluation of the scene where the baby died, and a review of medical records, should be conducted before a SIDS diagnosis was made. Although Dr. Smialek did not review autopsy results of either child at the time they died, he reviewed both autopsy reports in 1997 in addition to information about the insurance policies and witness statements.

Dr. Smialek testified, however, that, in making his conclusions about the deaths, he did not rely on statistical probabilities or on information about the insurance policies. He did rely on information about objects in both infants’ cribs and on witnesses’ statements that he evaluated in the context of this case and in light of his experience as a medical examiner. 4 He concluded that Brandi was probably suffocated, although he did not suggest a particular manner in which her death ⁶³ occurred. He amended the autopsy report on her death to list the manner of death as “undetermined.” Dr. Smialek testified that the swelling present in Garrett Michael’s brain was not consistent with SIDS and suggested that his air supply may have been cut off for several minutes. Furthermore, Garrett Michael’s lungs were “expanded,” which also suggested suffocation and not SIDS.

Dr. Smialek saw no independent physical evidence of an injury that would have cut off Garrett Michael’s air supply, and he was aware that, according to Ms. Anastasi, there was nothing in the crib that could have accidentally obstructed the baby’s airway. Dr. Smialek testified that the most probable cause of the obstruction was the physical act of another person, and he therefore concluded that Garrett Michael’s death was a homicide. The autopsy report on Garrett Michael’s death was changed to reflect this. The trial court did not err in admitting Dr. Smialek’s testimony.

His testimony concerned a finding based on factors that he could consider and that were in evidence. Dr. Norton The fourth medical expert to testify for the State was Dr. Linda Norton, a forensic pathologist in private practice who specializes in pediatric deaths. She had previously been a medical examiner in Texas and in Alabama. She had written one article about SIDS and frequently lectured to social workers, law enforcement officers, and prosecutors about SIDS, child abuse, and child deaths.

After reviewing the prosecution’s files on the case, which included autopsy reports for both babies, medical records, photographs of the bodies and the death scenes, and witnesses’ statements, she concluded that the cause of Brandi’s death was suffocation and the manner of death was homicide. Photographs of Brandi lying face down in her crib showed a lividity pattern caused by blood settling down toward the front of the face, but also showed that the forehead and nose were lighter in color. From these photos Dr. Norton concluded ⁶⁴ that the baby’s face had been pressed against something, such as the mattress, thus preventing blood from collecting in the nose and forehead. She testified that the position in which Brandi was found, with her face pointing straight down into the mattress, is an unnatural sleeping position not normally adopted by humans.

Brandi also had froth around her nose, indicating that she had attempted to breathe against an obstruction. In reaching her conclusions about Brandi’s manner of death,