Ingersoll v. State ( 2024 )

John Michael Ingersoll, Jr. v. State of Maryland, No. 1477, September Term 2021.
Opinion by Zic, J.
CRIMINAL LAW – EXPERT TESTIMONY – LAW ENFORCEMENT OFFICER
TESTIFYING AS EXPERT ON GANGS
The circuit court did not abuse its discretion in allowing a correctional officer lieutenant
to testify as an expert in gangs. The officer had extensive knowledge of and training and
experience with gangs and their members. Expert testimony is governed by Md. Rule 5-
702, which requires an expert to be qualified by knowledge, skill, experience, training, or
education; the expert testimony to be appropriate on the particular subject; and the
expert’s testimony is supported by a sufficient factual basis. See Covel v. State, 258 Md.
App. 308, 329 (2023). In Rochkind v. Stevenson, 471 Md. 1 (2020), the Supreme Court
of Maryland extended the U.S. Supreme Court’s standard in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) to qualify expert witnesses under Md. Rule
5-702.
Here, the circuit court correctly allowed the officer to testify as an expert based on the
non-exclusive Daubert-Rochkind factors. In this case, the officer was deemed to be a
reliable expert because of his years of training in gangs, experience with gangs and their
members, and knowledge of the history, hierarchy, and practices of gangs.
CRIMINAL LAW – LAW ENFORCEMENT OFFICER TESTIFYING AS
EXPERT ON GANGS – PROBATIVE VALUE
The probative value of expert testimony must not be substantially outweighed by any
unfair prejudice to the defendant under Md. Rule 5-403. In Gutierrez v. State, 423 Md.
476 (2011), the Supreme Court of Maryland held that the State must demonstrate, as a
threshold matter, a nexus between the crime and the gang membership through fact
evidence. Here, the circuit court correctly found that the officer’s testimony as an expert
created a nexus between the appellant’s gang membership and his motive to commit the
crime. It likewise did not err in balancing the probative value of that evidence against its
prejudicial impact.
MARYLAND WIRETAP ACT – LAW ENFORCEMENT SUPERVISION
Under Cts. & Jud. Proc. § 10-402(c)(2)(ii) of the Maryland Code, a person who is acting
under the supervision of an investigative or law enforcement officer may record another
person without the person being recorded having knowledge. The Supreme Court of
Maryland held in Seal v. State, 447 Md. 64 (2016), that a “complete absence of
supervision” did not satisfy the statute but emphasized that the appropriate level of
supervision is a fact specific inquiry, based upon the unique context of an investigation.
Here, a third party recorded the appellant’s oral communications without the appellant’s
knowledge. An FBI agent and Maryland State Trooper provided the third party with a
digital recorder and instructions on how and when to operate the recorder. At least one of
the law enforcement officers was in daily contact with the third party, and they
maintained contact for the purpose of receiving updates about the appellant’s
involvement in a crime. Because the appellant lived with the third party, maintaining
contact with the law enforcement officers introduced the issue of the third party’s safety.
The circuit court correctly admitted the two recordings made by the third party because,
considering the need to protect the third party’s safety, the law enforcement officers
maintained sufficient contact with the third party to deem her to be under their
supervision.
Circuit Court for Dorchester County
Case No.: C-09-CR-19-000259
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1477
September Term, 2021
______________________________________
JOHN MICHAEL INGERSOLL, JR.
v.
STATE OF MARYLAND
______________________________________
Friedman,
Zic,
Sharer, J. Frederick,
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Zic, J.
Concurring Opinion by Friedman, J.
______________________________________
Filed: May 31, 2024
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2024.05.31
14:24:13 -04'00'
Gregory Hilton, Clerk
A jury in the Circuit Court for Dorchester County convicted John Ingersoll, Jr.,
appellant, of first-degree murder, use of a handgun in the commission of a crime of
violence, and illegal possession of a firearm. The court sentenced Mr. Ingersoll to serve
life without the possibility of parole, plus 20 years.
On appeal, Mr. Ingersoll presents two questions, which we rephrase slightly:
1. Did the trial court err or abuse its discretion by admitting expert
testimony on gangs?
2. Did the trial court err in denying Mr. Ingersoll’s pretrial motion to
suppress audio recordings under the Maryland Wiretap Act?
For the following reasons, we hold that the trial court did not err by admitting the
expert testimony and that the audio recordings were permitted under the Maryland
Wiretap Act. We thus affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Shortly after midnight on June 4, 2001, Gregory Collins, age 32, was shot and
killed while driving home from his job as a correctional officer at the Eastern
Correctional Institution (“ECI”). Mr. Ingersoll was a person-of-interest in the initial
investigation into the murder, along with others, but the case went cold.
Eighteen years later, the Maryland State Police (“MSP”) coordinated with a
woman living with Mr. Ingersoll 1 to surreptitiously record him inculpating himself in the
murder. On September 13, 2019, Mr. Ingersoll was indicted in the circuit court.
Following a hearing, the court denied a pretrial motion to suppress the recordings of Mr.
1
We will refer to this woman throughout this opinion as Ms. Doe.
Ingersoll under the Maryland Wiretap Act. The court also held a pretrial Daubert-
Rochkind 2 hearing and, on the first day of trial, denied Mr. Ingersoll’s motion in limine to
exclude expert testimony about gangs, generally, and Dead Man Incorporated (“DMI”),
the gang to which Mr. Ingersoll was alleged to belong, specifically.
The case against Mr. Ingersoll was tried to a jury over four days in June 2021. The
State called twenty witnesses. Mr. Ingersoll elected not to testify in his case and called
one witness. Because the challenges raised on appeal pertain to the court’s pretrial
rulings, we briefly summarize the evidence to provide context.
On June 2, 2001, Mr. Collins worked at ECI from 4 p.m. until 8 p.m., and then
stayed for an overtime shift from 8 p.m. until midnight. He lived in Vienna, Maryland,
which is about an hour away from ECI. He did not return home that night and his wife
reported him missing the next day. A state trooper discovered Mr. Collins’ pickup truck
in the woods along Indiantown Road in Vienna, where it had veered off the road and
crashed. Mr. Collins was found dead in the driver’s seat. The back window of the cab of
his truck was shattered and Mr. Collins had died from a single gunshot wound to the back
of his head.
The State’s theory of the case was that Mr. Ingersoll carried out a targeted hit on
Mr. Collins, as directed by DMI. It further theorized that Mr. Ingersoll mistakenly shot at
another man’s truck the weekend before Mr. Collins’ murder.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);
2
Rochkind v. Stevenson, 471 Md. 1 (2020).
2
Mr. Ingersoll knew Mr. Collins from when he had been incarcerated at ECI from
August 1999 through October 2000, housed in the compound where Mr. Collins had
worked. There was evidence that Mr. Ingersoll had been a member of DMI, a security
threat group or prison gang, since about 1999. At some point prior to 2010, Mr. Ingersoll
attained the rank of “commander” within DMI.
The State adduced evidence about another shooting that had occurred in nearly the
same location over Memorial Day weekend in 2001, a week before Mr. Collins was
killed. Gary Camper, Sr. testified that in 2001, he was driving a pickup truck on
Indiantown Road in Vienna near the “little bridge.” He saw a truck on the side of the
road and tried to go around it when someone shot at his truck, blowing out the passenger
side window. Mr. Camper said that he reported the incident to the police.
Trooper John Bollinger, who investigated Mr. Collins’ murder in 2001, testified
that he interviewed Mr. Camper two days after the murder because he received
information that his pickup truck had been “shot at about a week prior to [Mr. Collins’]
homicide.” Contrary to Mr. Camper’s testimony, there was no record that Mr. Camper
ever reported the incident to the police.
Mr. Camper previously had been married to Ms. Doe, and they shared custody of
their son. In May 2019, Mr. Ingersoll began renting a room from Ms. Doe, who lived in
a three-bedroom house in East New Market, Maryland. In late May 2019, Mr. Ingersoll
told Ms. Doe that he had once shot at Mr. Camper and apologized to Ms. Doe for it
because he had not realized that she and Mr. Camper had a son together. Ms. Doe had
3
reason to believe that the shooting of Mr. Camper’s truck was connected to the shooting
of Mr. Collins. 3
In June 2019, Ms. Doe told Special Agent Ryan McCabe, a member of an FBI
narcotics taskforce assigned to the Eastern Shore of Maryland, that the tenant living with
her might have information about Mr. Collins’ murder. Ms. Doe had been working with
Special Agent McCabe since February 2019 on an unrelated case. Because the crime was
not within the FBI’s jurisdiction, Agent McCabe contacted Corporal Scott Sears with the
MSP Homicide Division in Salisbury and arranged a meeting with him, Cpl. Sears, and
Ms. Doe. As a result of that meeting, Ms. Doe was given a digital recorder and agreed to
record conversations between herself and Mr. Ingersoll.
On August 25 and August 30, 2019, Ms. Doe recorded Mr. Ingersoll making
inculpatory statements about Mr. Collins’ murder. Excerpts of the recordings were
played for the jury over defense objection. In the recordings, Mr. Ingersoll claimed that
he met Mr. Collins at ECI and that Mr. Collins had made a disparaging comment about
Mr. Ingersoll’s mother, stating, “I know your mother. She’s a [f*cking] whore.” 4
According to Mr. Ingersoll, Mr. Collins said this “in front of everybody” at ECI. Mr.
3
A discussion between counsel and the trial judge established that this was
because ballistics analysis initially had linked the shooting of Mr. Camper’s truck to Mr.
Collins’ murder, and this had been publicized in the media. The ballistics analyst was
Joseph Kopera, who later was discovered to have lied about his qualifications, calling his
opinions into question in this and other cases. Consequently, the State resubmitted the
ballistics evidence for comparison in 2019.
The State theorized that Mr. Ingersoll meant his grandmother, who had raised
4
him and he referred to as his mother.
4
Ingersoll responded, “Bitch, you’re good as [f*cking] dead.” He made that threat in front
of other DMI members, including an inmate named Perry Roark. Mr. Roark told Mr.
Ingersoll that he “better follow through with that.” Mr. Ingersoll explained to Ms. Doe
that he had no choice but to carry it out. He knew that if he didn’t, “they was going to
kill [Mr. Collins]” anyway.
After Mr. Ingersoll was released from prison, another member of DMI came to his
house in Preston, Maryland, and gave him Mr. Collins’ address and his work schedule. 5
Mr. Ingersoll recalled in his conversations with Ms. Doe that it was around a holiday
weekend, either Labor Day or Memorial Day. Mr. Ingersoll admitted to first shooting
Mr. Camper’s truck by mistake but denied that the same gun was used in that shooting
and the later shooting of Mr. Collins. Mr. Ingersoll later returned to “the bridge” on
Indiantown Road and waited for Mr. Collins for “three, four hours.” The other member
of DMI was with him. Mr. Ingersoll told Ms. Doe that he blocked Mr. Collins’ truck
when he stopped at a stop sign, got out of his vehicle, confronted Mr. Collins, who also
got out of his vehicle, and shot him in the chest. 6
5
This was consistent with evidence that, in April 2001, an ECI correctional officer
roster, including the names of officers and their shifts, was found in the possession of an
inmate. An investigation into the leak resulted in the termination of two employees in the
personnel office and the finance office at ECI. The same employees would have had
access to the home addresses for correctional officers.
6
As explained above, Mr. Collins was shot in the back of the head. There was no
evidence that he exited his truck prior to being killed. The State argued that this
discrepancy was borne of Mr. Ingersoll’s desire to inflate the circumstances of the murder
to impress Ms. Doe.
5
Lieutenant David Barnhart, who worked in the investigative division of the
intelligence unit in the Department of Public Safety and Correctional Services
(“DPSCS”), testified, over objection, as an expert in prison gangs and gangs generally.
We will discuss his testimony in more detail below.
The State also presented testimony from two men who were incarcerated with Mr.
Ingersoll at the Dorchester County Detention Center while he was awaiting trial in this
case, both of whom testified that Mr. Ingersoll confessed to them. Willie Lewis testified
that Mr. Ingersoll told him that Mr. Ingersoll shot Mr. Collins in the head because Mr.
Collins had been “nasty to him” when Mr. Ingersoll was at ECI. Mr. Lewis further
testified that Mr. Ingersoll said that he shot a neighbor’s truck by mistake six days before
the murder. Mr. Ingersoll told Mr. Lewis that he had spoken to that neighbor and asked
the neighbor not to press charges.
Thirteen cartridge casings recovered at the crime scene were analyzed. A firearms
and toolmarks examiner opined that one grouping of nine casings were consistent with
having been fired from the same 9 mm weapon and a second grouping of four casings
were consistent with having been fired with the same 9 mm weapon, but that the two
groups could not have been fired from the same weapon. This was consistent with Mr.
Ingersoll’s statements in the recordings that he used a different gun to shoot Mr. Collins
than he had when he mistakenly shot at Mr. Camper.
We will include additional facts in our discussion of the issues.
6
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ADMITTING
EXPERT TESTIMONY REGARDING GANGS.
Mr. Ingersoll contends that the trial court abused its discretion by denying his
motion in limine to exclude Lt. Barnhart from testifying as an expert in gangs and DMI in
particular. Before turning to his specific arguments, we provide the following
background.
A. The Daubert-Rochkind Hearing
On September 30, 2020, the State gave notice of its intent to offer Lt. Barnhart as
an expert in “gang activity, specifically [DMI] as it relates to the history and founders of
DMI, violent customs of DMI, initiation practices and the culture of retaliation of DMI,
hierarchy and rank, common practices and acts of violence of this gang.” Mr. Ingersoll
moved to exclude Lt. Barnhart’s testimony, arguing that it was “irrelevant, unreliable[,]
and inadmissible under the newly adopted Daubert standard and Maryland Rule [5-]702.”
Mr. Ingersoll requested a Daubert hearing. He also moved to exclude the testimony
under Md. Rule 5-404(b) as improper other crimes evidence.
On May 26, 2021, the court held an evidentiary hearing. Lt. Barnhart testified that
he was a “correctional officer lieutenant” for DPSCS and was assigned to the Criminal
Investigations Division of the Intelligence Unit. He began his career in 1998 as a
correctional officer at the Roxbury Correctional Institution in Hagerstown before moving
to North Branch Correctional Institution in Cumberland, where he remained. About a
decade later, in 2007, he began working in the Intelligence Unit.
7
Lt. Barnhart had received “multiple levels of training” in prison gangs over a
period of 15 years. He had taken courses offered by the Maryland Police and
Correctional Training Commission; St. Petersburg College; the American Military
University; and the Mid-Atlantic Regional Gang Investigators Network (“MARGIN”).
The trainings included information specific to each prominent gang, including DMI, and
provided information about the “structure, the rank, the rules” and any use of slang
among the gang members. Lt. Barnhart estimated that the trainings amounted to 30-40
hours per year, for a total of more than 400 hours of training over 15 years. He was
certified by MARGIN as a gang specialist. He had been qualified as an expert witness on
one prior occasion and had testified about the Aryan Brotherhood.
Lt. Barnhart also learned from his on-the-job experience with prison gangs. The
Intelligence Unit tracked gang members to prevent violence and drug trafficking within
the prisons. As part of that undertaking, Lt. Barnhart interviewed and engaged with gang
members on a daily basis.
Through his training and experience, Lt. Barnhart learned that the most prominent
gangs in Maryland were the Black Guerilla Family (“BGF”), the Bloods, the Crips, and
DMI. DMI was founded at the Maryland Correction Institution around 2000. Lt.
Barnhart had interviewed the three founders, including Mr. Roark, all of whom had been
incarcerated at North Branch at some point. DMI was modeled after BGF and was
formed with the blessing of the leaders of BGF. DMI now operated inside and outside of
prisons and had spread throughout the country. Communication between members
8
incarcerated at different prisons and between inmates and members on the street was
routine.
Lt. Barnhart explained that DMI’s hierarchy was based on a pyramid, with a
supreme commander at the top, followed by the council of governors, who are three elder
members of the gang, followed by lieutenant commanders, field generals, and foot
soldiers. Foot soldiers were known as “dawgs.”
Lt. Barnhart reviewed questionnaires completed by Mr. Ingersoll when he was
processed at the Maryland Reception and Diagnostic Correctional Center in 2010. Mr.
Ingersoll self-identified as a member of DMI during intake. Lt. Barnhart also reviewed
photographs of Mr. Ingersoll’s tattoos, which were consistent with his membership in
DMI. Specifically, Lt. Barnhart noted that pyramids and the numbers four, thirteen, and
nine, which represent the placement of the letters D, M, and I in the alphabet, are symbols
used by DMI members. In his experience, almost every member of DMI has a tattoo of a
pyramid and those numbers somewhere on their body. Mr. Ingersoll also had a tattoo of
a pit bull, which likely symbolized a “dawg.”
Lt. Barnhart opined that DPSCS will “validate” an inmate as a gang member if
they score ten or higher on a point system. A document in Mr. Ingersoll’s commitment
record showed that he had been validated as a member of DMI with a score of 14 on that
scale based upon his self-admission of membership and his tattoos. Lt. Barnhart stated
that self-admission of membership is “worth” 8 points but is not sufficient standing alone
to “validate.” The same document reflected that Mr. Ingersoll’s rank was a
“commander,” which “put him with that upper DMI structure.” Lt. Barnhart opined that
9
Mr. Ingersoll could have achieved that rank based upon his length of time in the gang,
trust established with the council of elders, and the “work” he “put in for the gang,” such
as “acts of violence” or drug trafficking.
In Lt. Barnhart’s experience, if a DMI member were ordered to do something by a
higher ranked member, he would be obligated to carry out that order or face severe
consequences, ranging from expulsion from the gang to being physically assaulted or
killed. Lt. Barnhart explained that he had “seen many times” when an inmate was
ordered to do something by a “high ranking person within the gang,” does not comply,
and the member is “dealt with either through violence or however they choose to do so.”
A gang member within the prison system who was unwilling to carry out an order would
either “face [a] sanction from the gang” or, if they sought help from DPSCS staff, might
be placed in protective custody.
On cross-examination, Lt. Barnhart acknowledged that North Branch has a lower
population of DMI members, with only 50 validated members out of 1,200 inmates. He
had performed around 20 investigations that involved DMI during his career. His
knowledge of DMI’s history was based upon “learned information,” television shows,
and “hands on expertise” within the Maryland prison system, where DMI started,
including review of documents seized from inmates.
In response to questions from the court, Lt. Barnhart testified that DPSCS
maintains a searchable database of tattoos to assist in determining if inmates have gang
affiliations. The court noted that it was concerned with whether Lt. Barnhart had a
10
“methodology for coming up with these conclusions[.]” Lt. Barnhart offered to provide
the court a copy of the score sheet used to validate gang members.
The day after the hearing, Lt. Barnhart provided three supplemental exhibits to the
court, which also were shared with counsel. 7 First, he provided a DPSCS Security Threat
Group Validation Worksheet listing fourteen criteria and associated point values for use
in validating an inmate as a member of a gang. Consistent with Lt. Barnhart’s testimony,
self-admission was worth eight points. The presence of gang related tattoos was worth
six points. As mentioned, Mr. Ingersoll’s validation score was 14 points. Second, he
provided two redacted screen shots of DPSCS’s “Automated Gang Intel” database
reflecting searches for tattoos with “4-13-9”, which returned results showing inmates
validated as members of DMI, and for “276”, which returned results showing inmates
validated as belonging to a different prison gang.
B. The Circuit Court Ruling
On the first day of trial, the court ruled on the motion in limine. The court first
determined that Lt. Barnhart was “qualified as an expert in the field of gangs found
within the Maryland prison system and their operations, both inside and outside prison
walls, by reason of his knowledge, skill, experience, training and education.” The court
found that he had gone through 300-400 hours of formal training and “uncountable hours
of on-the-job training which he correctly identified as being his most important training.”
7
The supplemental exhibits were supplied to this Court in an unopposed motion to
correct the record, which we granted. Though four attachments were included with that
motion, two of them were identical.
11
He had “demonstrate[d] specific knowledge about [DMI] history, gang structure, [DMI]
gang philosophy and [DMI] gang symbols and tattoos.” He also testified about “personal
experience with the founding members of DMI including Perry R[o]ark who was . . . one
of the founding fathers of DMI.” The court found that the Division of Corrections
maintained “a database of gang membership to assist, among other things, in housing
decisions to avoid gang warfare and the investigation of crimes committed by gangs in
prison[,]” and that it included “information harvested in a standard manner on standard
forms throughout the Division of Corrections.”
Applying the factors identified by the Supreme Court of Maryland in Rochkind v.
Stevenson, 471 Md. 1 (2020), the court found that Lt. Barnhart was “proposing to testify
about matters that naturally and directly come from a data collection and research into
Division of Corrections gang intelligence that has been collected and conducted over the
years.” The data was collected in the normal course of DPSCS practice and not in
anticipation of the litigation. Likewise, Lt. Barnhart’s opinions were “not developed
expressly for the purpose of testifying in this case” but rather were “cultivated through
historical experience and data collection. The short word for that is intelligence.”
For all those reasons, the court found:
after focusing on the reliability of the methodology used to
collect data and intelligence on gang membership and activity
and the application or use of that data, Lieutenant Barnhart is
qualified pursuant to Maryland Rule 5-702 and the
Daubert/Rochkind analysis to testify as an expert on [DMI],
as more particularly set forth before.
12
Turning to Rule 5-403, the court considered whether the opinions Lt. Barnhart
would offer pertaining to DMI were “more probative than prejudicial.” By reference to
the Supreme Court’s decision in Burris v. State, 435 Md. 370 (2013), the court
emphasized that the State bore the burden to adduce “fact evidence” demonstrating “a
nexus between the crime and the gang membership” and, if satisfied, to establish that “the
evidence being presented about gang involvement [was] necessary to prove the crime.” It
would not “permit incendiary evidence of the bad acts of DMI in general” because they
were “wholly unrelated to the facts which are part and needed by the State to prove the
case.” The court noted that there was “a general objection by the defense regarding this
testimony, both on the basis of the Daubert analysis, but also as probative versus
prejudicial” and that the court would “consider that objection . . . preserved for future
purposes if necessary.”
C. Trial Testimony
Lt. Barnhart was designated as an expert in prison gangs and gangs in general at
trial. He identified Mr. Ingersoll’s DPSCS intelligence file, which was admitted in
evidence. He testified about those records, which reflected that in 2010, Mr. Ingersoll
admitted to being a member of DMI for approximately eight years, beginning when he
was incarcerated at Brockbridge Correctional Facility. Other DPSCS records reflected
that Mr. Ingersoll was incarcerated at Brockbridge in 1998 and 1999. The intelligence
file reflected that Mr. Ingersoll had achieved the rank of “commander” within DMI. Lt.
Barnhart testified that Mr. Ingersoll’s tattoos were consistent with his membership in
DMI.
13
Lt. Barnhart explained that DMI began as a prison gang in the mid to late 1990s 8
but “spread to the streets.” The gang was founded by Mr. Roark at the Maryland House
of Correction. DMI was “antigovernment” and “didn’t believe in law enforcement kind
of like in a sovereign sort of way[.]” Lt. Barnhart explained the gang’s hierarchy and
explained that commanders were high ranking members, at the tier just below the council
of elders.
He opined that for a member to move up in rank within DMI, he had to “put[] in
work,” which could include “carrying out an assault against a rival gang member, an
assault against a correctional officer, being able to get money into the gang by getting
drugs in the institution and selling them, or even just a little store from the commissary
on your own to make money.” If a DMI member made a threat and failed to carry it out,
that would be a sign of weakness. If a member was given a direct order by a higher
ranked member within DMI and failed to carry it out, the penalty could be death.
D. Contentions on Appeal
Mr. Ingersoll contends that the court abused its discretion in admitting Lt.
Barnhart’s testimony for five reasons. First, he maintains that Lt. Barnhart’s testimony
was “not sufficiently reliable” because he only had testified as an expert once before
about a different gang, his experience was not directly tied to DMI, and his training
related to gangs in general, not DMI. Next, Lt. Barnhart’s testimony had “limited
probative value” because it was being introduced to “corroborate [Mr. Ingersoll]’s self-
8
This is earlier than the year Lt. Barnhart testified to at the Daubert-Rochkind
hearing.
14
incriminating statements” that he was a DMI member and carried out the murder on
direct orders from higher ranking members. Third, because the DPSCS gang unit was not
established until 2006, Lt. Barnhart’s knowledge was limited to gang activity well after
the murder. Additionally, Lt. Barnhart’s testimony did not establish Mr. Ingersoll’s
membership in DMI in 2001, only that he joined DMI at some point prior to 2010. Fifth
and finally, the testimony was unfairly prejudicial and created a risk that the jury would
infer Mr. Ingersoll’s guilt based on his membership in DMI.
The State responds that, consistent with federal cases applying the Daubert
standard to expert testimony about gangs, the circuit court here properly determined that
Lt. Barnhart’s testimony was sufficiently reliable to be admissible. The testimony was
relevant to assist the jury to place the statements made by Mr. Ingersoll during his
recorded statements to Ms. Doe in context. Further, the probative value of the testimony
was not outweighed by the danger of unfair prejudice because it was highly probative on
the issue of motive.
E. Analysis
“We review a circuit court’s decision to admit expert testimony for an abuse of
discretion.” Abruquah v. State, 483 Md. 637, 652 (2023). Because of the deference
afforded to a trial court in this area, it is the “rare case in which a Maryland trial court’s
exercise of discretion to admit or deny expert testimony will be overturned.” State v.
Matthews, 479 Md. 278, 306 (2022). “[A]n appellate court does ‘not reverse simply
because the . . . court would not have made the same ruling[,]’” but only if “‘the trial
court’s decision . . . [is] well removed from any center mark imagined by the reviewing
15
court and beyond the fringe of what that court deems minimally acceptable.’” Id. at 305
(quoting Devincentz v. State, 460 Md. 518, 550 (2018) (internal quotation marks and
citation omitted)).
1. Admissibility under Rule 5-702
As this Court recently explained:
Expert testimony is governed by the Daubert-
Rochkind standard and Maryland Rule 5-702. Rule 5-702
lays out three requirements to admit an expert: (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. In [Rochkind, 471 Md. at 1], the Supreme Court
of Maryland held that all Maryland courts were to interpret
Rule 5-702 according to the [Daubert, 509 U.S. 579] analysis
in lieu of the previous[ly] prevailing Frye-Reed test. The
Rochkind court held that Daubert required a flexible inquiry
into an expert’s reliability, focusing on the expert’s principles
and methodology as opposed to their conclusions. Rochkind,
471 Md. at 36. However, “a trial court must also consider the
relationship between the methodology applied and conclusion
reached.” Id. “A court may conclude that there is simply too
great an analytical gap between the data and the opinion
proffered.” Id. (quoting General Elec. Co., v. Joiner, 522
U.S. 136, 146 (1997)). Finally, the Supreme Court of
Maryland held that in accord with the Federal approach, the
Daubert analysis should be applied to the admission of all
expert testimony. Rochkind, 471 Md. at 36.
Covel v. State, 258 Md. App. 308, 329 (2023).
The Supreme Court in Rochkind identified ten factors that a court may consider in
interpreting Rule 5-702 to determine if the proposed testimony is sufficiently reliable,
drawn from Daubert and an Advisory Committee Note to Federal Rule of Evidence 702:
16
(1) whether a theory or technique can be (and has been)
tested;
(2) whether a theory or technique has been subjected to peer
review and publication;
(3) whether a particular scientific technique has a known or
potential rate of error;
(4) the existence and maintenance of standards and controls;
(5) whether a theory or technique is generally accepted;
(6) whether experts are proposing to testify about matters
growing naturally and directly out of research they have
conducted independent of the litigation, or whether they have
developed their opinions expressly for purposes of testifying;
(7) whether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion;
(8) whether the expert has adequately accounted for obvious
alternative explanations;
(9) whether the expert is being as careful as he or she would
be in his or her regular professional work outside his or her
paid litigation consulting; and
(10) whether the field of expertise claimed by the expert is
known to reach reliable results for the type of opinion the
expert would give.
Rochkind, 471 Md. at 35-36 (cleaned up). The factors are non-exclusive. Id. at 35. The
test is “flexible” and “‘Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case. Rather, the law grants a [trial] court
the same broad latitude when it decides how to determine reliability as it enjoys in
respect to its ultimate reliability determination.’” Id. at 36 (quoting Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141-42 (1999)).
In the instant case, we hold that the trial court did not abuse its discretion in the
exercise of its gatekeeping role when it determined that Lt. Barnhart’s expert testimony
was sufficiently reliable to be admitted under Rule 5-702. See id. at 33 (“Under Daubert,
judges are charged with gauging only the threshold reliability – not the ultimate validity –
17
of a particular methodology or theory.”). Federal decisions draw a distinction between
expert testimony that is “primarily experiential in nature as opposed to scientific.”
United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007). Scientific testimony is
“characterized by ‘its falsifiability, or refutability, or testability.’” Id. (quoting Daubert,
509 U.S. at 593). “Experiential expert testimony, on the other hand, does not ‘rely on
anything like a scientific method.’” Id. (quoting Fed. R. Evid. 702 advisory note). This
does not diminish its reliability, however. Id.In this case, Lt. Barnhart’s extensive experience and training in prison gangs over
many years, coupled with his knowledge of the history, hierarchy, and practices of DMI
served as a reliable basis for him to testify as an expert on those subjects. See United
States v. Holguin, 51 F.4th 841, 856 (9th Cir. 2022) (holding under Daubert and FRE 702
that “[e]xperience alone is a reliable basis for the expert testimony regarding gang
structure and activities”). His opinions elucidating the hierarchy of DMI, how members
rise through that hierarchy, the way inmates are validated as gang members within the
Division of Corrections, and the consequences faced by DMI members if they fail to
carry out orders, were drawn from that training and experience and are not unlike
testimony held admissible in federal cases applying Daubert. See id. (holding that a
district court did not err by admitting testimony from a law enforcement officer “about
the structure and activities of criminal organizations based solely on experience”); United
States v. Kamahele, 748 F.3d 984, 998 (10th Cir. 2014) (holding that gang-expert
testimony was admissible to provide “expertise about [the gang’s] structure, insignia and
history,” “[a]nd the district court could have assumed that a typical juror would lack
18
knowledge of the gang terminology and the significance of [the] insignia”); United States
v. Smith, 919 F.3d 825, 835 (4th Cir. 2019) (holding that the district court correctly
admitted an FBI agent’s testimony on the interpretation of gang and drug terminology
and reasoned that the application of his lengthy experience in drug and gang
investigations was a reliable methodology).
Mr. Ingersoll’s arguments that Lt. Barnhart’s experience with DMI post-dated the
murder by five years and that much of his training was not specific to DMI go to the
weight to be accorded to his testimony, not to its admissibility. Further, though he could
not testify with precision as to the date that Mr. Ingersoll joined DMI, there was ample
evidence from which the jury could infer that Mr. Ingersoll joined DMI prior to Mr.
Collins’ murder, most notably Mr. Ingersoll’s statement on the DPSCS questionnaires in
which he admitted joining DMI while incarcerated at the Brockbridge Correctional
Facility, which other records revealed to have been from June 1998 through June 1999.
Lt. Barnhart’s testimony applied his extensive knowledge about gangs, generally,
and DMI, in particular, garnered from training and experience, to reach conclusions about
the gang’s structure, hierarchy, and internal rules. This was a reliable methodology that
satisfied the Daubert-Rochkind standard.
2. Admissibility under Rule 5-403 and 5-404(b)
Though admissible under Rule 5-702, expert testimony still must be excluded if
“its probative value is substantially outweighed by the danger of unfair prejudice” under
Rule 5-403 or if it is inadmissible propensity evidence under Rule 5-404(b). Evidence is
unfairly prejudicial when “‘it might influence the jury to disregard the evidence or lack of
19
evidence regarding the particular crime with which [the defendant] is being charged.’”
Odum v. State, 412 Md. 593, 615 (2010) (quoting Lynn McLain, Maryland Evidence:
State and Federal, § 403:1(b) (2d ed. 2001)). Similarly, “[t]he primary concern
underlying . . . Rule [5-404(b)] is a ‘fear that jurors will conclude from evidence of other
bad acts that the defendant is a “bad person” and should therefore be convicted, or
deserves punishment for other bad conduct and so may be convicted even though the
evidence is lacking.’” Hurst v. State, 400 Md. 397, 407 (2007) (quoting Harris v. State,
324 Md. 490, 496 (1991)).
In Gutierrez v. State, 423 Md. 476, 481-82 (2011), the Supreme Court of
Maryland held that “expert testimony about the history, hierarchy, and common practices
of a street gang is admissible as proof of motive” if “fact evidence establishes that the
crime charged was gang-related and the probative value of the testimony is not
substantially outweighed by any unfair prejudice to the defendant.” The expert testimony
introduced in Gutierrez pertained to the defendant’s affiliation with MS-13, a street gang.
Id. The Court recognized the “highly incendiary nature of gang evidence” and the risk
that jurors will “determine guilt by association,” but reasoned that the probative value of
the evidence could substantially outweigh the danger of unfair prejudice when there is
“fact evidence showing that the crime was gang-related.” Id. at 495-96 (emphasis in
original).
The Court held that the expert’s testimony 1) explaining the Spanish name for
MS-13 and why a phrase uttered by the perpetrator denoted ties to the gang, 2) explaining
the process of “jumping in” a new member, and 3) explaining that MS-13 gang members
20
“respond to insults with punishment ‘up to death,’” and that they respond to “‘false
flagging’” with violence, was relevant, probative, and not unfairly prejudicial. Id. at 498-
99. The Court reasoned, however, that the court should have excluded the expert’s
opinion that MS-13 was the most violent gang in the region. Id. at 499. Nevertheless,
that error was harmless beyond a reasonable doubt and did not warrant reversal. Id. at
499-500.
Two years later, in Burris, the Supreme Court reversed a defendant’s conviction
for first-degree murder and use of a handgun, holding that the trial court improperly
admitted highly prejudicial expert testimony about his affiliation with the BGF, which the
State used to support its theory that the defendant was a BGF hit man and was ordered by
his gang boss to kill the victim to satisfy a debt to the gang boss. 435 Md. at 374, 384.
Though it concluded that the State satisfied the threshold nexus for admissibility
identified in Gutierrez by adducing fact evidence that the crime was gang related, the
Court nevertheless concluded that the probative value of the expert’s testimony was
outweighed by its potential for unfair prejudice. Id. at 391-92. Specifically, the Court
pointed to the expert’s testimony about BGF’s propensity for violence and its control
over Maryland prisons and jails and his “graphic” testimony about the defendant’s
tattoos, 9 which implied that he had a propensity to kill and that he had previously been
incarcerated. Id. at 394-396. This evidence all was highly prejudicial, in the Court’s
For example, the expert testified that the defendant had a “187 and a picture of a
9
weapon” on his arm, which signified a section of the California penal code addressing
homicide. Id. at 395.
21
view. The probative value of the expert testimony, on the other hand, was quite limited
given that the State had adduced ample fact evidence showing that the defendant was a
member of BGF and the expert’s testimony did not establish that the defendant had a
motive to kill or that some of the witnesses against him had recanted their statements
because of the gang affiliation. Id. at 396-97.
We return to our case. The State clearly satisfied its threshold showing of a nexus
between the crime and Mr. Ingersoll’s gang membership. In his recorded conversation
with Ms. Doe, Mr. Ingersoll stated that he threatened to kill Mr. Collins in front of Mr.
Roark and, upon doing so, he knew he had no choice but to carry out that threat. He
further stated that an unnamed DMI member came to his house after his release, provided
him with Mr. Collins’ home address and work schedule, and accompanied him when he
went to kill Mr. Collins. Thus, expert testimony about DMI was admissible unless its
probative value on the issue of motive was substantially outweighed by the danger of
unfair prejudice.
We conclude that the evidence here was highly probative of motive and did not
cross the line into unfair prejudicial incendiary gang testimony of the type discussed in
Burris. Lt. Barnhart’s testimony corroborated Mr. Ingersoll’s statements to Ms. Doe
about his affiliation with DMI and explained his fear of repercussions if he did not follow
through with the threat he made against Mr. Collins. It also established the central role of
Mr. Roark in the founding and leadership of DMI, which underscored the seriousness of
Mr. Ingersoll’s statement to Ms. Doe that the order to kill Mr. Collins came directly from
Mr. Roark. Unlike in Burris, Lt. Barnhart did not detail violent acts committed by DMI
22
or link Mr. Ingersoll’s tattoos to prior acts of violence. Rather, his testimony focused
upon the permissible subjects identified in Gutierrez: the structure, hierarchy, and rules
of the gang. The court did not err by admitting the testimony.
II. THE RECORDINGS OF MR. INGERSOLL’S CONVERSATIONS WITH MS. DOE
SATISFIED THE MARYLAND WIRETAP ACT AND WERE ADMISSIBLE AT
TRIAL.
Mr. Ingersoll contends that the circuit court erred by denying his motion to
suppress the August 25, 2019 and August 30, 2019 recordings of statements he made to
Ms. Doe because both were obtained in violation of the Maryland Wiretap Act, Md.
Code, Cts. & Jud. Proc. §§ 10-401 to 10-414. As pertinent here, that statute makes it
unlawful to “[w]illfully intercept, endeavor to intercept, or procure any other person to
intercept or endeavor to intercept, any wire, oral, or electronic communication” except as
specifically allowed. Cts. & Jud. Proc. § 10-402(a). An oral communication includes
“any conversation or words spoken to or by any person in private conversation.” Cts. &
Jud. Proc. § 10-401(13)(i). An unlawfully intercepted communication is inadmissible in
any court proceedings. Cts. & Jud. Proc. § 10-405. The statute excepts from these
prohibitions the interception of “wire, oral, or electronic communication[s] in order to
provide evidence” of the commission of certain crimes, including murder, if the
interception is undertaken by “an investigative or law enforcement officer acting in a
criminal investigation or any other person acting at the prior direction and under the
supervision of an investigative or law enforcement officer[.]” Cts. & Jud. Proc. § 10-
402(c)(2)(ii). At issue in this case is whether Ms. Doe was “acting . . . under the
23
supervision of an investigative or law enforcement officer” when she intercepted Mr.
Ingersoll’s oral communications inculpating himself in the murder of Mr. Collins.
A. Standard of Review
“Our review of a circuit court’s denial of a motion to suppress evidence is ‘limited
to the record developed at the suppression hearing.’” Pacheco v. State, 465 Md. 311, 319
(2019) (quoting Moats v. State, 455 Md. 682, 694 (2017)). “[W]e view the evidence
presented at the [suppression] hearing, along with any reasonable inferences drawable
therefrom, in a light most favorable to the prevailing party.” Davis v. State, 426 Md. 211,
219 (2012). “We accept the suppression court’s first-level findings unless they are shown
to be clearly erroneous.” Brown v. State, 452 Md. 196, 208 (2017). “We give no
deference, however, to the question of whether, based on the facts, the trial court’s
decision was in accordance with the law.” Seal v. State, 447 Md. 64, 70 (2016).
B. Suppression Hearing
The circuit court held a suppression hearing on September 29, 2020. The State
called Special Agent McCabe and Cpl. Sears to testify about their interactions and
supervision of Ms. Doe during the relevant period. Agent McCabe testified that he
worked for a violent crime investigative unit for the FBI based in Annapolis and that his
unit covered the Eastern Shore of Maryland. Ms. Doe was working as a confidential
human source for the FBI on an unrelated case beginning in January or February of 2019.
In June 2019, Ms. Doe divulged to Agent McCabe that she might have information about
a homicide and that she thought her tenant might be responsible.
24
Because there was no “federal nexus” to the murder of Mr. Collins, Agent
McCabe contacted the MSP Homicide Division in Salisbury and arranged a meeting with
him, Ms. Doe, and Cpl. Sears. Nevertheless, Agent McCabe facilitated communications
between Ms. Doe and the MSP because he had an “ongoing relationship with [her].”
As a result of the meeting, Cpl. Sears provided Ms. Doe with a digital recorder on
June 25, 2019. It was about 4 inches long, 1 inch wide, and 1 inch deep. Agent McCabe
and Cpl. Sears demonstrated to Ms. Doe how to operate the device. It was activated by
sliding an “on button” that put it in a “state that’s ready to record.” The recording could
then be activated by pushing the record button. Ms. Doe was instructed that she needed
to keep the recorder on her person, that it “couldn’t be unattended,” and that it needed to
be “actively under her control while she was using it.” Ms. Doe was told to record
conversations “relating to the murder of Gregory Collins.” She was instructed to stop
recording when it was safe to do so.
Ms. Doe was not in contact with Agent McCabe or Cpl. Sears again until August
8, 2019, when they picked her up at her house. She returned the digital recorder, which
contained 29 separate recordings. The State did not seek to introduce these recordings at
trial.
From August 8, 2019 forward, Agent McCabe was in contact with Ms. Doe daily
if not multiple times per day. As pertinent, on August 20, 2019, Ms. Doe called Agent
McCabe to advise that Mr. Ingersoll was transported to the hospital by the police but had
not been arrested. The next day, she called and said Mr. Ingersoll had either been
arrested or emergency petitioned. On August 22, 2019, she reported that Mr. Ingersoll
25
was being released from the hospital and requested a new recording device. That same
day, Agent McCabe and Cpl. Sears delivered a new recording device to Ms. Doe by
leaving it in a plastic bag on the edge of her property. 10 The next day, Agent McCabe
spoke to Ms. Doe to confirm she had retrieved the device and to instruct her to try to keep
background noise low when she was recording.
On August 24, 2019, Ms. Doe called to report that her teeth had been knocked out
trying to prevent Mr. Ingersoll from hurting himself. On August 26, 2019, Ms. Doe
informed Agent McCabe that Mr. Ingersoll had confessed to criminal activity the prior
night. Agent McCabe picked up Ms. Doe, brought her to the FBI office, retrieved the
recorder from her, reviewed it, and provided her with a new device. The next day, Agent
McCabe and Cpl. Sears picked her up again and spoke to her about where to position the
recording device on her body to make the recording more audible.
Three days later, on August 30, 2019, Ms. Doe called Agent McCabe to report that
she had obtained a new recording. She put the recording device in her mailbox and
Agent McCabe picked it up later that same day. That was the final recording.
The State conceded that recordings made between June 25, 2019 and August 8,
2019, the period when Ms. Doe was out of contact with Agent McCabe and Cpl. Sears,
were inadmissible because she was not acting under the supervision of law enforcement.
The only recordings the State sought to rely upon at trial were the August 25, 2019 and
August 30, 2019 recordings. The State emphasized Agent McCabe’s daily contact with
To protect Ms. Doe’s safety, Agent McCabe and Cpl. Sears used surreptitious
10
means to deliver new recorders to her.
26
Ms. Doe during the relevant period and the specific instructions she received on how to
operate the recording device. It maintained that closer supervision was impossible here
because of the risk to Ms. Doe if Mr. Ingersoll, who lived with her, was to discover that
she was working with the police.
Defense counsel argued that the Supreme Court’s decision in Seal, 447 Md. at 64,
was dispositive and required suppression of all the recordings made by Ms. Doe. It
maintained that there had to be “active supervision” by the police to satisfy the Wiretap
Act, which, at a minimum, would have included placing limitations on when and for how
long Ms. Doe could record Mr. Ingersoll. Instead, as in Seal, Ms. Doe was given a
recording device “to use at her pleasure.” The fact that Ms. Doe made dozens of
recordings of Mr. Ingersoll, even though the State only sought to use two of them, was
evidence that Ms. Doe was haphazardly recording Mr. Ingersoll in violation of his
privacy rights. Defense counsel maintained that the decision in Seal made clear that
supervision must include monitoring of the recording beyond instructing the third party
on the use of the device and that Ms. Doe was given unlimited discretion on when and for
how long to record Mr. Ingersoll.
The court took the matter under advisement and, on October 15, 2020, issued a
memorandum opinion denying the motion to suppress the recordings that occurred after
August 12, 2019. After making findings consistent with the above recitation of facts and
setting out the law, the court determined that the relevant recordings fell within the
“supervision exception” to the Wiretap Act. It reasoned that Ms. Doe was provided
significant direction about using the recording device, including how to operate it, where
27
to place it on her body to ensure that the recordings were audible, not to leave it
unattended, what subject matter to record, and to discontinue recording when it was safe
to do so. Agent McCabe maintained frequent contact with Ms. Doe during the relevant
period, speaking to her on the phone daily and meeting with her in person at least once
per week. The substance of the meetings and phone calls pertained to the investigation
into Mr. Ingersoll. Because the recordings were made with the prior direction and under
the supervision of law enforcement during the investigation of a homicide, the court ruled
that they were not made in violation of the Wiretap Act and denied the motion to
suppress.
C. Analysis
The Supreme Court of Maryland’s decision in Seal is the lead case addressing the
supervision exception under the Wiretap Act. That case concerned a 2013 investigation
into allegations of sexual abuse that occurred in 1982, when the victim was ten years old.
447 Md. at 66-68. After the victim reported the abuse to the police in 2013, he and a
police detective unsuccessfully attempted to call Seal several times so that the victim
could attempt to elicit an admission from him. Id. at 68. The detective met with the
victim soon after to make a second attempt at a monitored phone call but again was
unsuccessful. Id. At the end of the second meeting, the detective gave the victim, who
was a resident of West Virginia, the recording equipment to allow him to attempt to
record a future telephone conversation with Seal. Id. The detective showed the victim
how to use the equipment and the victim took it back to his home in West Virginia. Id.Approximately two weeks later, the victim recorded a phone call in which Seal made
28
several incriminating statements. Id. After that phone call, the detective met with the
victim to retrieve the equipment. Id. at 68-69.
Seal was convicted of sex crimes and appealed, arguing in part that the court erred
by denying his motion to suppress the recording under the Wiretap Act. Id. at 69. He
maintained that the recorded call was not “supervised” because “all [the detective] did
was give [the victim] the recording equipment with limited instructions about how to
operate it.” Id. at 72. After a split panel of this Court affirmed the judgment, the
Supreme Court of Maryland granted certiorari and reversed. Id. at 70.
The Court emphasized that the procedures outlined in the Wiretap Act and its
exceptions “must be strictly followed.” Id. at 71 (citing State v. Siegel, 266 Md. 256(1972)). It rejected the State’s argument that cases interpreting the federal wiretap statute
were strong persuasive authority on the construction of the supervision exception under
the Wiretap Act because the Maryland act is more restrictive. Id. at 72-73. The federal
law requires that a third party be acting under “color of law,” which most of the federal
cases cited by the State construed to mean acting under the “direction” of the
government, not under its supervision. Id at 72-73, 77. Even so, several of the federal
decisions involved more supervision than was present in Seal, including real-time
monitoring of the intercepted communications, United States v. Shields, 675 F.2d 1152,
1154-55 (11th Cir. 1982), or “continuous, albeit irregular, contact” between the
government and the third party. Obron Atl. Corp. v. Barr, 990 F.2d 861, 865 (6th Cir.
1993). In contrast, the trial court in Seal “treated the hand-over of the equipment as
equivalent to supervision” even though the detective
29
set no limit, restriction[,] or requirement on the:
• Number or frequency of calls;
• Time of day or duration of calls;
• How or when to report back to police;
• Remote monitoring of calls by police;
• Inquiry about other criminal matters; or
• Maintaining a log of calls made.
Id. at 79-80.
The Court reasoned that the supervision requirement reflects the legislature’s
expectation that law enforcement will provide “instruction about limitations on use of the
equipment,” “when to report back to the officer,” and will maintain regular contact with
the third party. Id. at 80. The Court emphasized that it was not holding “that law
enforcement must be present or listening remotely at the time of the recordings,” or that
“there can never be a two-week gap between communications when the police are
supervising a person who is taping conversations.” Id. at 81. Rather, it was a “fact-
specific . . . inquiry.” Id. The “complete absence of supervision” in Seal necessitated
reversal of the denial of the motion to suppress. Id. (emphasis in original).
We return to the case at bar. Mr. Ingersoll contends that the facts here do not
differ from those present in Seal in any meaningful way. We disagree.
The trial court found that law enforcement instructed Ms. Doe on the operation of
the device, the requirement that she always maintain possession of the device, that she
could not leave it unattended, the subject matter she should record, and that she should
cease recording a conversation that began about that subject matter when safe to do so.
During the relevant period, Agent McCabe was in daily contact with Ms. Doe by
30
telephone and in regular in-person contact as well. The regular contact was for the
purpose of receiving updates about Mr. Ingersoll’s involvement in the Collins homicide
and to determine if Ms. Doe had obtained a relevant recording or needed a new recording
device. For each of the two recordings that the State sought to introduce at trial, Ms. Doe
provided the recording to the police the day after she made it.
Unlike in Seal, where the defendant was being recorded telephonically, Ms. Doe
lived with Mr. Ingersoll, creating significant safety concerns. Consequently, it would
have been impossible for law enforcement to actively monitor the recordings or to require
Ms. Doe to stop and start recording conversations if the topic deviated temporarily.
Within these confines, Cpl. Sears and Agent McCabe reasonably monitored and
supervised the surveillance operation by maintaining close contact with Ms. Doe
whenever she was away from Mr. Ingersoll. As the Court emphasized in Seal, the level
of supervision required in a given context is very fact specific. On these facts, we hold
that Ms. Doe was acting under the supervision of law enforcement when she made the
recordings the State introduced at trial.
JUDGMENTS OF THE CIRCUIT COURT
FOR DORCHESTER COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
31
Circuit Court for Dorchester County
Case No.: C-09-CR-19-000259
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 1477
September Term, 2021
______________________________________
JOHN MICHAEL INGERSOLL, JR.
v.
STATE OF MARYLAND
______________________________________
Friedman,
Zic,
Sharer, J. Frederick,
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Concurring Opinion by Friedman, J.
______________________________________
Filed: May 31, 2024
One aspect that the change from the old Frye/Reed standard to the new
Daubert/Rochkind standard was supposed to improve was, in the area of forensic science,
that courts would now exclude expert testimony that was generally accepted, but that was
not reliable. 1 Regrettably, however, my colleagues in the majority are here accepting so-
called police gang expert testimony—law enforcement and corrections officers who have
learned about gangs on the job—that, although generally accepted, 2 has none of the
1
This may be the long-term lesson of the Supreme Court of Maryland’s recent
decision in Abruquah v. State, 483 Md. 637 (2023). While it had long been generally
accepted for experts to identify guns and bullets by toolmarks, the Supreme Court of
Maryland held that the degree of certainty expressed by those experts overstated the
reliability of the experts’ testimony. Id. at 696-97. Thus, although the Court allowed the
experts to testify, they were limited in the manner in which they could express their
certainty: it was only reliable, the Court held, for these experts to testify that the toolmarks
were “consistent” with having been fired from a particular gun. Id. at 694-95. In this way,
the Abruquah decision (and maybe this concurrence) can be situated as part of a larger
trend of carefully reconsidering the scientific basis for long-accepted forensic techniques
under modern reliability standards. See generally COMM. ON IDENTIFYING THE NEEDS OF
THE FORENSIC SCI. CMTY., NAT’L RSCH. COUNCIL, STRENGTHENING FORENSIC SCIENCE
IN THE UNITED STATES: A PATH FORWARD 1-2 (2009) (available online at
https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf) (last visited Feb. 15, 2024);
PRESIDENT’S COUNCIL OF ADVISORS ON SCI. & TECH., EXEC. OFF. OF THE PRESIDENT,
FORENSIC SCIENCE IN CRIMINAL COURTS: ENSURING SCIENTIFIC VALIDITY OF FEATURE-
COMPARISON METHODS 1 (2016) (available online at
https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast fo
rensic science report final.pdf.) (last visited Feb. 15, 2024); Maneka Sinha, Radically
Reimagining Forensic Evidence, 73 ALA. L. REV. 879 (2022) (discussing expert testimony
regarding various forensic techniques, including bitemark, fingerprint, firearms and
toolmark, as unscientific, incomplete, inaccurate, or overstated science); Maneka Sinha,
Junk Science at Sentencing, 89 GEO. WASH. L. REV. 52 (2021) (same); Jim Hilbert, The
Disappointing History of Science in the Courtroom: Frye, Daubert, and the Ongoing Crisis
of “Junk Science” in Criminal Trials, 71 OKLA. L. REV. 759 (2019); Paul C. Giannelli,
Forensic Science: Daubert’s Failure, 68 CASE W. RSRV. L. REV. 869 (2018).
2
The leading case in Maryland, Gutierrez v. State, is illustrative of the general
acceptance of this sort of police gang expert testimony. Gutierrez v. State, 423 Md. 476(continued)
-1-
hallmarks of reliability that are now supposed to guide the admissibility of expert
testimony. 3
In my view, law enforcement and corrections officers should not be admitted as
expert witnesses to testify about subjects that amount to the sociology of gangs. Rule 5-
702 provides three limitations on potential expert witnesses in Maryland courts:
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,
(2011). In Gutierrez, the State’s expert was Sergeant George Norris, the supervisor of the
Prince George’s County Police Department’s gang unit. The Supreme Court of Maryland
(and Chief Judge Bell’s dissent) analyzed whether Sgt. Norris’ expert testimony was
(1) relevant and (2) more probative than unfairly prejudicial. Id. But both majority and
dissent seemed to assume that Sgt. Norris was qualified by his experience to render such
opinions. Although his expertise may have been generally accepted at the time (and thus
admissible under the Reed/Frye standard), his testimony was never, in my opinion,
scientifically reliable (and thus inadmissible) once the Daubert/Rochkind standard became
applicable a decade later.
3
Of course, nothing in this concurrence should be interpreted as “pro-gang.” Gangs
and their members—at least those discussed herein—are a scourge that live outside of
civilized society. Rather, my goal is to ensure that we provide gang members precisely the
same protections of the judicial system that we all deserve. There cannot be a two-tiered
system, in which we apply lower standards of admissibility to experts who testify against
gang members than we do with experts in other types of litigation. Magdalena Ridley,
Down By Law: Police Officers as Gang Sociology Experts, 52 CRIM. L. BULL. 1034, 1052-
67 (2016) [hereinafter Down by Law] (comparing admissibility in gang prosecutions to all
other types of litigation); Moreover, avoiding a two-tiered standard of expert witness
admissibility is especially critical given the racialized nature of gangs and gang
membership. See generally Sara Hildebrand, Racialized Implications of Officer Gang
Testimony, 92 MISS. L.J. 155, 163-67 (2022) (describing racial and ethnic make-up of
gangs).
-2-
(2) the appropriateness of the expert testimony on the particular
subject, and
(3) whether a sufficient factual basis exists to support the expert
testimony.
MD. R. 5-702. With these police gang experts there is a mismatch between subsections (1)
and (2). That is, their “knowledge, skill, experience, training, [and] education” make them
potentially capable of serving as experts, but not on the “particular subject” identified,
which is the sociology of gangs. 4 Sociology is a social science, informed by the scientific
method, 5 that rigorously studies the interaction and behaviors of human groups. 6 Sociology
4
I am not suggesting, of course, that Lt. Barnhart couldn’t be qualified today as an
expert, for example, on DPSCS’s anti-gang strategy, see generally Ragland v. State, 385
Md. 706 (2005) (permitting law enforcement officers to testify as experts based on skill,
experience, training, or education), or, that he couldn’t, should he go back to school,
become an expert in gang sociology.
5
The scientific method compels scientists to propose their theories and techniques
in public, to the world, receive criticism, or contradictions, and then revise their theories
and techniques. The result is a constant sharpening. See, e.g., Scientific Method, Merriam-
Webster Collegiate Dictionary 1112 (11th ed. 2020) (“principles and procedures for the
systematic pursuit of knowledge involving the recognition and formulation of a problem,
the collection of data through observation and experiment, and the formulation and testing
of hypotheses.”).
6
As one article explains:
Sociology is[:]
• [T]he study of society[;]
• [A] social science involving the study of the social lives of people,
groups, and societies[;]
• [T]he study of behavior as social beings, covering everything from
the analysis of short contacts between anonymous individuals on
the street to the study of global social processes[;]
• [T]he scientific study of social aggregations, the entities through
which humans move through their lives[; and]
(continued)
-3-
(and other related social science fields) have studied criminal gangs for over 100 years.
Zachariah D. Fudge, Gang Definitions, How do They Work?: What the Juggalos Teach Us
About the Inadequacy of Current Anti-Gang Law, 97 MARQ. L. REV. 979, 989 (2014).
Police gang experts, learning on-the-job and at seminars have none of that background or
experience. Down By Law, supra note 3, at 1052, 1055-58 (internal citations omitted)
(“[P]olice officers are not sociologists, and have no training that could qualify them to offer
expertise on sociological topics such as ‘gang sociology’ or ‘gang culture.’”); Interrogation
is not Ethnography, supra note 6, at 141-42 (critiquing police conferences as a basis for
expertise in gangs).
As the majority’s Opinion reports, Lieutenant David Barnhart of the Maryland
Department of Public Safety and Correctional Services (DPSCS) was offered as “an expert
in ‘gang activity, specifically [DMI] as it relates to the history and founders of DMI, violent
customs of DMI, initiation practices and … acts of violence of this gang.’” Slip Op. at 7. I
am not sure that this was a very precise description of Lt. Barnhart’s proposed testimony.
From my review of the trial transcripts, the briefs filed in this Court, and the majority’s
Opinion, I think it is reasonably clear that Lt. Barnhart ultimately testified that (1) Ingersoll
is, and at all relevant times was, a member of DMI; and (2) that under DMI’s system of
• [A]n overarching unification of all studies of humankind,
including history, psychology, and economics[.]
Down By Law, supra note 3, at 1057. (internal citations omitted); see also Christopher
McGinnis & Sarah Eisenhardt, Note, Interrogation is not Ethnography: The Irrational
Admission of Gang Cops as Experts in the Field of Sociology, 7 HASTINGS RACE &
POVERTY L.J. 111, 129 (2010) (defining sociology) [hereinafter, Interrogation is Not
Ethnography].
-4-
gang discipline, having threatened to kill Collins in front of DMI founder, Perry Roark,
Ingersoll himself would be subject to gang punishment, up to a punishment of death, had
he failed to follow through and murder Collins. I will evaluate Lt. Barnhart’s proposed
expert testimony regarding these two topics, which I will refer to by these shorthand
references: (1) the DPSCS validation tool; and (2) gang discipline.
In Rochkind, the Supreme Court of Maryland provided a non-exhaustive list of
factors intended to help trial courts in their consideration of whether a proposed expert’s
proposed opinions are sufficiently reliable to be admissible. Rochkind v. Stevenson, 471
Md. 1, 35-36; Slip Op. at 16-17. The majority’s Opinion identifies the Rochkind factors
but doesn’t really apply them. Slip Op. at 17. In the pages that follow, I will do my best to
apply the Rochkind factors to both aspects of Lt. Barnhart’s proposed expert testimony, the
DPSCS validation tool and gang discipline. In my view, not a single one of these factors
support Lt. Barnhart’s admission as an expert. See Racialized Implications of Officer Gang
Testimony, supra note 3, at 172 (noting that courts have failed to carefully examine the
validity and reliability of the methods used in police gang testimony).
The Rochkind Factors and Lt. Barnhart’s Opinions
1. “[W]hether a theory or technique can be (and has been) tested.”
The first Rochkind factor asks whether the theory or technique offered by the
proposed expert has been tested. Rochkind, 471 Md. at 35-36; Slip Op. at 17-18. As to the
DPSCS validation tool, Lt. Barnhart explained how the scores are obtained, and provided
screenshots showing results from the validation tool. Slip Op. at 9-11. That is helpful and
maybe sufficient to DPSCS’s needs, but it does not say anything about how the tool has
-5-
been tested. Are the scores properly weighted? What are the risks of false positives? Are
there, for example, other people in our prison system with tattoos of pit bulls or pyramids?
See Slip Op. at 9. Are self-admissions of gang membership always true? Slip Op. at 9. Or
do inmates sometimes lie? This DPSCS validation tool—no matter how well-presented or
formal-looking—has not been tested by the scientific method, as Rochkind requires. 7
And as to gang discipline, the trial court and the majority’s Opinion in this case were
impressed by Lt. Barnhart’s personal experience at DPSCS and thought that his experience
qualified him as an expert. At the pre-trial Daubert hearing, the trial court concluded that
Lt. Barnhart was “proposing to testify about matters that naturally and directly come from
a data collection and research into Division of Corrections gang intelligence that has been
collected and conducted over the years.” Similarly, the majority’s Opinion reports that,
“Lt. Barnhart’s extensive experience and training in prison gangs over many years …
served as a reliable basis for him to testify as an expert on those subjects.” Slip Op. at 18.
To the extent, however, that this is a valid way to gain expertise, its conclusions are
7
For a detailed criticism of California’s equivalent to the DPSCS’s validation tool,
see Interrogation is not Ethnography, supra note 6. The authors critique the California
gang validation tool based on (1) the unreliability of self-reporting about gang membership,
(2) the unreliability of aesthetic markers, like clothing and tattoos, to determine gang
membership, and (3) the unreliability of police informant identification of gang
membership. Id. at 132-39; Susan Burrell, Gang Evidence: Issues for Criminal Defense,
30 SANTA CLARA L. REV. 739, 769-73 (1990) (same, discussing California validation tool).
See also Placido G. Gomez, It is Not So Simply Because an Expert Says it is So: The
Reliability of Gang Expert Testimony Regarding Membership in Criminal Street Gangs:
Pushing the Limits of Texas Rule of Evidence 702, 34 ST. MARY’S L.J. 581 (2003)
(critiquing police gang experts’ ability to identify gang members and membership under
Texas law and Texas’s validation tool).
-6-
impossible to evaluate in the absence of testing. The interviews that Lt. Barnhart conducted
were conducted by a corrections officer not by a sociologist trained in ethnography.
Interrogation is not Ethnography, supra note 6, at 139-45 (explaining differences between
interrogation by law enforcement officers and ethnography conducted by social scientists);
Racialized Implications of Officer Gang Testimony, supra note 3, at 169-70 (2022) (same).
Whatever data collection informed Lt. Barnhart’s opinions, it came solely from the view
of corrections officers. Moreover, Lt. Barnhart’s specific opinion about gang discipline
seems internally inconsistent. If he has truly “seen many times” that gangs mete out
punishment for failure to comply, see Slip Op. at 10, then the system of gang discipline
isn’t really as effective as he describes. I would expect a trained social scientist to
rigorously test the hypothesis of gang discipline, not take it for granted based on mixed
evidence.
2. “[W]hether a theory or technique has been subjected to peer review and
publication.”
The second Rochkind factor asks whether the theory or technique has been subjected
to peer review and publication. Rochkind, 471 Md. at 35-36; Slip Op. at 17. Neither the
trial court nor the majority addressed itself to this factor. I think that this is a critical
omission. Lt. Barnhart’s proposed testimony received none of the benefits of the scientific
method. See supra note 5. There was no testimony that the DPSCS validation tool has been
published or subjected to peer review. And, as to his views on gang discipline, that was
based entirely on his personal observations and never submitted to peer review and
-7-
publication. I have a great deal of difficulty understanding it as anything other than
generalization and stereotyping.
3. “[W]hether a particular scientific technique has a known or potential rate of
error.”
The third Rochkind factor asks whether the scientific technique that the potential
expert proposes to use and base their opinion on has a known or potential rate of error.
Rochkind, 471 Md. at 35-36; Slip Op. at 17. Neither the trial court nor the majority’s
Opinion address this factor, probably thinking it not relevant or applicable. But to me, that’s
the whole point. Lt. Barnhart’s opinions—regarding the DPSCS validation tool and gang
discipline—are not based on scientific techniques, have not been subjected to the scientific
method, and have no known or potential rates of error. This must count against them.
4. “[T]he existence and maintenance of standards and controls.”
The fourth Rochkind factor asks whether there are standards and controls. Rochkind,
471 Md. at 35-36; Slip Op. at 17. The trial court, as reported by the majority’s Opinion,
was satisfied that both the DPSCS validation tool and Lt. Barnhardt’s experience were
sufficient to the DPSCS’s intelligence needs. Slip Op. at 12 (“The short word for that is
intelligence.”). In my view, while the standards and controls governing Lt. Barnhart’s
opinions are perhaps sufficient to DPSCS’s needs, that does not mean that the standards
and controls are sufficient to support an expert’s opinion in court.
5. “[W]hether a theory or technique is generally accepted.”
The fifth Rochkind factor considers “whether a theory or technique is generally
accepted.” Rochkind, 471 Md. at 35-36; Slip Op. at 17. In some ways, this factor harkens
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back to the old Frye/Reed standard and suggests that once a particular genre of expert
testimony is accepted, it is generally accepted. Thus, after Gutierrez, police gang testimony
was generally accepted in Maryland courts. Gutierrez v. State, 423 Md. 476 (2011)
(discussed supra note 2). But our Supreme Court has recently pointed out that general
acceptance of a theory is “largely dependent on what the relevant community is.” Abruquah
v. State, 483 Md. 637, 691 (2023). Law enforcement and, at least historically, the judiciary,
have treated law enforcement as the only relevant community. That can’t be right. The
relevant community must at least include disinterested social science. And I have found
nothing to suggest that police gang testimony is generally accepted within this academic
community. There are a number of legal academic authors that have criticized the use of
police gang experts to testify about the sociology of gangs because their methods are not
reliable. See, e.g. Down By Law, supra note 3, at 1058-62; Fareed Nassor Hayat, Preserving
Due Process: Require the Frye and Daubert Expert Standards in State Gang Cases, 51 N.
M. L. REV. 196, 219-24 (2021).
6. “[W]hether experts are proposing to testify about matters growing naturally
and directly out of research they have conducted independent of the litigation,
or whether they have developed their opinions expressly for purposes of
testifying.”
The sixth Rochkind factor asks whether the proposed expert testimony grew
naturally out of the witness’s research or was developed for the purpose of testifying.
Rochkind, 471 Md. at 35-36; Slip Op. at 17. The trial court and the majority Opinion were
impressed that Lt. Barnhart’s expertise was first developed for internal use at DPSCS. At
least one commentator has suggested to the contrary—that this factor should weigh against
-9-
forensic techniques developed exclusively for use by law enforcement. Thomas Kiley,
State v. Matthews: Maryland Fails to Measure Up to Its New Expert Testimony Standard,
82 MD. L. REV. 1135, 1156-57 (2023). It is also not plain to me that there could be a market
for Lt. Barnhart’s expert witness testimony—certainly no defendant would seek Lt.
Barnhart’s testimony—so I don’t think this factor counts in favor of admitting Lt.
Barnhart’s testimony.
7. “[W]hether the expert has unjustifiably extrapolated from an accepted
premise to an unfounded conclusion.”
The seventh Rochkind factor asks whether the expert’s proposed testimony
extrapolates from an accepted premise to an unfounded conclusion. Rochkind, 471 Md. at
35-36; Slip Op. at 17. Even if we accept that Ingersoll was a gang member at the time of
the murder (and we only have his word for it), Lt. Barnhart’s testimony jumps from that
premise to the unfounded conclusion that the murder was committed to avoid punishment
under DMI’s gang discipline. See Abruquah v. State, 483 Md. 637, 694 (2023) (citations
omitted) (“this factor invokes the concept of an analytical gap, as “[t]rained experts
commonly extrapolate from existing data[,]” but a circuit court is not required “to admit
opinion evidence that is connected to existing data only by the ipse dixit of the expert.”).
Suffice to say, I am not persuaded by this extrapolation.
8. “[W]hether the expert has adequately accounted for obvious alternative
explanations.”
The eighth Rochkind factor asks whether the expert has accounted for alternative
explanations. Rochkind, 471 Md. at 35-36; Slip Op. at 17. Neither the trial court nor the
majority Opinion focuses on the fact that the instigating episode was that Collins insulted
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Ingersoll’s mother (or perhaps grandmother). Slip Op. at 4 n.4. No explanation was offered
as to why that insult was not sufficient—after all, Ingersoll responded by threatening to kill
Collins—but that Ingersoll’s gang membership and DMI’s gang discipline were necessary
to explain why Ingersoll carried through on the threat.
9. “[W]hether the expert is being as careful as [they] would be in [their] regular
professional work outside [of their] paid litigation consulting.”
The ninth Rochkind factor is directed at paid litigation consultants. Rochkind, 471
Md. at 35-36; Slip Op. at 17. As such, it isn’t directly relevant to Lt. Barnhart’s situation
as he apparently testifies as part of his work. Nevertheless, in thinking about this factor, I
consider it significant that Lt. Barnhart is a corrections officer, trained in law enforcement,
and is not a disinterested, neutral observer as social scientists are (and are trained to be).
10. “[W]hether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give.”
The tenth Rochkind factor asks more generally if the kind of expertise proffered is
known to reach reliable results. Rochkind, 471 Md. at 35-36; Slip Op. at 17. As I discussed
in the introduction to this concurrence, the switch from Frye/Reed to Daubert/Rochkind
was supposed to—and in many ways has—ushered in a new era in forensic testimony based
on reliability rather than general acceptance. See supra note 1. The trial court found
reliability here principally because this type of expertise is sufficient to DPSCS’s needs.
* * * *
In my view, neither of Lt. Barnhart’s expert opinions: (1) regarding the DPSCS
validation tool; or (2) regarding gang discipline, were reliable. Law enforcement officers
are expert at controlling and detecting crime, and those, like Lt. Barnhart and Sgt. Norris
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(discussed supra note 2 and infra note 8), are expert at controlling and detecting crime
committed by gangs in our prisons and on our streets. That is an important expertise. These
people do important work to keep us safe. That work, however, is not the same thing as an
expertise in the sociology of gangs. None of the Rochkind factors should have counted in
favor of Lt. Barnhart’s acceptance as an expert witness. At the end of the day, it is my view
that expert testimony on gang sociology can and should be offered by experts on the
sociology of gangs. These witnesses should have an advanced degree in a social science
field— sociology, anthropology, criminology/criminal justice, psychology, or the like—
and involve serious field work, using the techniques of ethnography, guided by the
scientific method, studying gang behavior. Anything else is just repeating gossip and
stereotypes. Such expert testimony might have been marginally acceptable under the old
Frye/Reed standard but fails the promise of Daubert/Rochkind. 8 Worse still, by admitting
8
Although it didn’t occur here, one of the more egregious examples of police
“experts” in gang culture involves those purported experts testifying as to the meaning of
words in gang culture, that is, functioning as interpreters of gang language. The skill of
interpreting—even of idiomatic vernacular English—is the subject of careful academic
study and expert testimony about it should not be based on something a police officer
allegedly heard. In my view, the requirements for testifying as a gang vernacular interpreter
should be no less rigorous than the requirements for other interpreters in our court system.
See Maryland Court Interpreter Program, Administrative Office of the Courts, MARYLAND
COURTS (available online at https://mdcourts.gov/interpreter/overview) (last visited Feb.
15, 2024). It should come as no surprise that these police gang experts frequently testify
that the idiomatic vernacular used in gang communications often matches—quite
precisely—the meaning needed to convict. See, e.g., Freeman v. State, 259 Md. App. 212,
238-42 (2023) cert. granted, No. 221 (Nov. 29, 2023) (No. 24, Sept. Term 2023) (holding
that trial court did not err in accepting police gang “expert” testimony that “lick” and
“sweet lick” meant “robbery” in gang vernacular; not clear whether police gang expert
qualified as an expert or was testifying as a fact witness); Fareed Nassor Hayat, Preserving
Due Process: Require the Frye and Daubert Expert Standards in State Gang Cases, 51 N.
(continued)
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Lt. Barnhart as an expert witness, he received the imprimatur of the trial court in front of
the jury. I would, therefore, hold that the trial court abused its discretion in admitting Lt.
Barnhart as an expert witness in gang sociology. 9
* * * *
Where does this leave me? For the reasons just discussed, I decline to join the
majority’s reasoning in Part I of its Opinion. Slip Op. at 17-19. I would hold that the trial
M. L. REV. 196, 200 (2021) (describing police gang expert’s claim to be able to translate
words from Swahili); Dionte Keith Dutton v. State, Case No. 2184, Sept. Term 2019,
(unreported) (filed Sept. 21, 2021) (available online at
https://mdcourts.gov/sites/default/files/unreported-opinions/2184s19.pdf) (last visited
Feb. 15, 2024) (police gang expert, Sgt. George Norris, testified that in gang’s idiom “doe”
meant “gun,” precisely the evidence necessary to establish that the defendant ordered his
co-defendant to commit the murder). Slip op. at 11-12. This Court reversed the defendant’s
conviction due to inflammatory and prejudicial statements made by the prosecutor in
closing arguments. Id. at 13-25 (holding prosecutor’s comments were prejudicial). And
while this Court noted that admissibility of expert testimony at a retrial would be governed
by Daubert/Rochkind, not Frye/Reed as it had been at the original trial, id. at 10 n.4; 11
n.6, I regret that we did not hold that police gang expert testimony of the kind offered—
“doe” means “gun”—would be unreliable and therefore likely inadmissible under the new
standard.
9
Although there has been a lot of dispute—at least among the appellate bench and
bar— about the proper application of the standard of review of decisions of trial courts to
admit or reject expert witness testimony since Rochkind, see, e.g., Katz, Abosch,
Windesheim, Gershman, & Freedman, P.A. v. Parkway Neuroscience and Spine Institute,
LLC, 485 Md. 335, 364-84 (2023) (Booth, J. concurring); Derek Stikeleather, 2023 and the
Summer of Daubert, MARYLAND APPELLATE BLOG (available online at
https://mdappblog.com/2023/09/07/2023-and-the-summer-of-daubert/#more-5157) (last
viewed Feb. 15, 2024); and although everyone seems to agree that reversal on these
grounds should be “rare,” Slip Op. at 15 (quoting State v. Matthews, 479 Md. 278, 306
(2022)), here I think the trial court’s decision misapplied the legal standard, and, as a result,
its decision constituted an abuse of discretion. Levitas v. Christian, 454 Md. 233, 244
(2017) (quoting Neustadter v. Holy Cross Hosp. Of Silver Spring, Inc., 418 Md. 231, 242
(2011) (“The trial court must apply the correct legal standard and ‘a failure to consider the
proper legal standard in reaching a decision constitutes an abuse of discretion.’”) Thus, I
would find error, albeit harmless error, under any potential standard of review.
-13-
court abused its discretion in allowing Lt. Barnhart to testify as an expert in the sociology
of gangs. I do, however, join Part II of the majority’s Opinion. Slip Op. at 23-31. In my
view, the trial court did not err in finding that Doe was acting under the supervision of law
enforcement when she made the recordings of her conversations with Ingersoll. As a result,
it was proper for the jury to hear and consider Ingersoll’s recorded admissions, including
his admission that he had murdered the victim, Collins. Slip Op. at 4-5. Given the
admissibility and admission of Ingersoll’s confession, I would hold that the error in
admitting Lt. Barnhart’s expert testimony was harmless beyond a reasonable doubt. See,
e.g., Bellamy v. State, 403 Md. 308, 332 (2008) (discussing harmless error standard). That
is to say, it is my view that there is simply no possibility that a jury—any jury—would
have acquitted Ingersoll even if the trial court had excluded Lt. Barnhart’s expert
testimony. I, therefore, concur in the result only.
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