Harris v. State

Lloyd Harris v. State of Maryland, No. 2298, September Term, 2017. Submitted on Brief:
February 14, 2019. Opinion by Battaglia, J.
CRIMINAL LAW – RIGHT OF ACCUSED OF COMPULSORY PROCESS –
RELEVANCY OF ALTERNATIVE SUSPECT EVIDENCE
Trial judge properly exercised discretion in excluding from evidence material in which
appellant proffered to insinuate that another individual had committed the crime for which
he had been charged, including evidence of that individual’s criminal conviction which
consisted of similar underlying acts that occurred in the same area and around the same
time of the acts underlying the charges faced by the appellant; the proffered evidence,
however, did not give credence to the theory that someone other than the appellant
committed the crime at issue, and therefore, was properly excluded pursuant to Maryland
Rule 5-403.
CRIMINAL LAW – DUE PROCESS – PRE-INDICTMENT DELAY
Trial judge did not err in denying motion to dismiss based upon a 20-year pre-indictment
delay where appellant failed to demonstrate that the State purposefully delayed the
indictment to gain a tactical advantage, pursuant to Clark v. State, 364 Md. 611 (2001),
and solely argued that the State recklessly disregarded the risk that delay would impair his
ability to mount an effective defense, a standard not recognized by case law and that was
not argued below.
CRIMINAL LAW – ADMISSIBILTY OF EXPERT TESTIMONY – DUELING
EXPERTS
Trial judge properly exercised discretion in admitting the State’s expert witness,
concluding that the expert’s testimony, juxtaposed by the testimony of the appellant’s
expert, provided the grist for the jury to best weigh, based upon a finding that the scientific
testimony proffered, and the underlying methodology and conclusion thereof, was accepted
by the relevant scientific community.
Circuit Court for Frederick County
Case No.: 10-K-16-057851
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2298
September Term, 2017
______________________________________
LLOYD HARRIS
v.
STATE OF MARYLAND
______________________________________
Berger,
Leahy,
Battaglia, Lynne, A.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Battaglia, J.
______________________________________
Filed: October 30, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-10-30 13:58-04:00
Suzanne C. Johnson, Clerk
On October 2, 1996, the victim, then a 15-year old girl, was reported missing by her
mother. Over two months later, her body was discovered in a wooded area of Frederick,
Maryland. Prior to the discovery of the victim’s body, appellant, Lloyd Harris, had resided
at a “campsite” nearby in the wooded area, and, during the course of the investigation into
the victim’s death, became the primary suspect. The investigation largely concluded in
2000.
On January 22, 2016, a grand jury indicted Harris of first-degree murder, first-
degree rape and third-degree sex offense, charges for which he was convicted by a jury
sitting in the Circuit Court for Frederick County. The trial judge sentenced Harris to life
in prison for the murder and rape convictions, which were to run concurrently, and merged,
for sentencing purposes, the sex offense conviction. The issues in this case involve an
alternative suspect, pre-indictment delay and expert testimony, as queued up by Harris in
the following questions, which we have renumbered:
1. Did the trial court err when it granted the State’s motion to exclude defense
evidence regarding an alternate suspect?
2. Did the trial court err when it denied Mr. Harris’s motion to dismiss due
to pre-indictment delay?
3. Did the trial court err when it denied Mr. Harris’s motion to exclude the
testimony of the State’s expert regarding acid phosphatase and “time since
intercourse” on Frye-Reed grounds?
For the reasons set forth below, we shall answer Harris’s questions in the negative
and shall affirm the judgment of the Circuit Court.
ALTERNATIVE SUSPECT
Before trial, the State filed a motion in limine to exclude evidence related to
individuals who Harris contended were alternative suspects in the case. One of those
individuals was Elmer Spencer, who had been convicted of first-degree assault in
connection with an attempted rape which took place in Frederick, Maryland on October 9,
1996, days after the victim went missing. Harris had informed the State that he intended
to introduce evidence related to Spencer’s assault conviction to bolster the theory that
Spencer was an alternative suspect:
• Call Michael Hansell to testify about his arrest of Elmer Spencer on
October 9, 1996;
• Call the woman, who was assaulted, to testify that Elmer Spencer had
attacked her on October 9, 19961;
• Introduce the police report in State v. Elmer Spencer, Frederick County
Circuit Court Case No. K-96-021289;
• Introduce a Frederick News-Post article dated December 28, 2000
regarding Elmer Spencer as a potential suspect in the rape and murder of
the victim; and,
• Introduce a true test copy of Circuit Court Case K-96-021289, State v.
Elmer Spencer.
The trial judge subsequently held a hearing on the issue and orally granted the
State’s motion to exclude, but reserved Harris’s ability to cross-examine the State’s
witnesses about information regarding potential suspects that was developed during the
1
At the time of trial, both Elmer Spencer and the woman he had attacked had died.
2
course of the investigation. The State, then, would be able to introduce evidence as to why
those suspects had been excluded as potential suspects.
During trial, before the testimony of Candace Mercer, a childhood friend of the
victim, the State again orally moved to exclude testimony from Ms. Mercer regarding her
having allegedly seen the victim and Spencer together shortly before her disappearance.
Harris proffered that Ms. Mercer, when interviewed in either late 2016 or early 2017 by
defense counsel, indicated that she may have seen Spencer in the victim’s “neighborhood
right around the time she disappeared.” The State disagreed, contending that Ms. Mercer
informed prosecutors that she “had no idea” when she had seen the victim with Spencer.
Both defense counsel and the prosecutor, however, also informed the trial judge that
Ms. Mercer had never mentioned Spencer to the police during the initial investigation,
proffering a two-page police report of her interview conducted in 1996 in which no mention
was made of Spencer. The trial judge granted the State’s motion to exclude the testimony,
reasoning that, because Ms. Mercer never told anyone that she had seen the victim and
Spencer together in October 1996, a statement elicited twenty-one years later was “too far
removed”:
The first time that [Spencer] comes up is 21 years afterwards. She says, yes,
she thinks she saw him about that time, and now she’s expected to testify that
she doesn’t. I think it’s too far removed. If there was any mention
whatsoever [sic] in the report of Mr. Spencer back at that time, I may have
let her testify to that; there’s not.
Furthermore, the State also sought to exclude testimony from Thomas Chase, the
former head of the Criminal Investigation Division of the Frederick City Police
Department, recounting the statement he made to a local newspaper in which he said that
3
Spencer could not be ruled out as a suspect in the rape and murder of the victim.2 The trial
judge denied the State’s motion, and Mr. Chase later read his statement to the jury. Mr.
Chase, however, testified that he did not believe Spencer to ever be a suspect, and that if
he had “not gotten” the call from the reporter, he “wouldn’t have thought of Spencer” as a
suspect; his goal was merely to provide “[t]ruthful information.”
Harris contends that the evidence regarding Elmer Spencer “was not speculative or
remote” because it tended to demonstrate that Spencer raped and murdered the victim, and
as such, the trial court committed reversible error when it granted the State’s motion in
limine.3 Harris avers that the evidence related to Spencer did more than “cast a bare
suspicion” of his culpability because the acts underlying Spencer’s assault conviction were
similar to the acts underlying the charges with which Harris had faced, both incidents
occurred in Frederick around the same time and Spencer had an opportunity to commit the
crime because he was not incarcerated at the time of the victim’s disappearance.
The State, conversely, argues that the trial court did not abuse its discretion in
excluding the evidence regarding Spencer because the evidence was irrelevant as it
2
When asked by a reporter from the Frederick News-Post whether “there’s any
connection between Elmer Spencer and the [victim’s] case,” Thomas Chase stated:
The issue is being taken into account, and is being given serious
consideration. Given the best information we have, Spencer was not in jail
at the time [the victim] was reported missing, and he was arrested on October
8th for the assault of another Frederick woman. That’s all I can say. We
have developed suspects. We are not ruling out any possibilities.
3
We review the trial court’s decision to exclude evidence for an abuse of discretion, not,
as Harris posits, under a de novo standard.
4
“supported only a conjectural inference that Spencer committed the crime for which Harris
was on trial, and even if minimally relevant, its significant potential for unfair prejudice
warranted exclusion under Maryland Rule 5-403.”
“Although the right of a defendant in a criminal trial to present witnesses in his
defense is a critical right, it is not absolute.” Taneja v. State, 231 Md. App. 1, 10 (2016),
cert. denied, 452 Md. 549 (2017) (citing Taylor v. Illinois, 484 U.S. 400, 407–10, 108 S.
Ct. 646, 98 L. Ed. 2d 798 (1988)). The accused may not offer testimony that is
“incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Id.
(quoting Taylor, 484 U.S. at 410, 108 S. Ct. 646, 98 L. Ed. 2d 798). The admissibility of
“evidence that someone other than the defendant committed other crimes or bad acts,”
Allen v. State, 440 Md. 643, 664 (2014) (internal citation omitted), is “subject, however, to
two paramount rules of evidence, embodied both in case law and in Maryland Rules 5-402
and 5-403,” Smith v. State, 371 Md. 496, 504 (2002); Muhammad v. State, 177 Md. App.
188, 274 (2007).
“Relevant evidence” is evidence “having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Md. Rule 5-401. “[A]n item of evidence can be
relevant only when, through proper analysis and reasoning, it is related logically to a matter
at issue in the case, i.e., one that is properly provable in the case.” Taneja, 231 Md. App.
at 11 (emphasis in original) (quoting Snyder v. State, 361 Md. 580, 591 (2000)). Relevant
evidence is admissible, while evidence that is not relevant is not admissible. Md. Rule 5-
402. Although relevant, a trial judge may exclude evidence “if its probative value is
5
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Md. Rule 5-403.
To establish the evidentiary relevance of crimes committed by another, a defendant
“must show that ‘the proffered evidence exculpates the defendant or gives credence to the
theory that someone else other than the defendant committed the crime.’” Allen, 440 Md.
at 665 n.16 (citing Moore v. State, 154 Md. App. 578, 603–04 (2004), aff’d, 390 Md. 343
(2005)). If relevant, the proffered evidence must also, then, pass the Rule 5-403 balancing
test—“that is, its probative value must not be outweighed by the danger of unfair
prejudice.” Id. at 665. An accused may “introduce any legal evidence tending to prove
that another person may have committed the crime with which the defendant is charged,”
but, such evidence “may be excluded where it does not sufficiently connect the other person
to the crime, as, for example, where the evidence is speculative or remote, or does not tend
to prove or disprove a material fact in issue at the defendant’s trial.” Holmes v. South
Carolina, 547 U.S. 319, 327, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (quoting 40A Am.
Jur.2d, Homicide § 286, pp. 136–38 (1999)); see also Taneja, 231 Md. App. at 10–11. We
review a trial court’s decision to exclude evidence of another’s prior bad acts for an abuse
of discretion. Moore v. State, 390 Md. 343, 384 (2005).
In Allen v. State, supra, 440 Md. at 676–77, the Court of Appeals held that a
defendant’s constitutional right to present a fair defense at trial had not been violated when
the trial judge excluded evidence regarding an alternative suspect which included the
suspect’s DNA being found at the scene of the crime for which Allen had been charged, as
6
well as the suspect’s recent guilty plea to a similar “home invasion drug-rip style robbery”
committed in the same county. The Court agreed with this Court when we held that the
prejudicial effect of the DNA evidence and the alternative suspect’s recent conviction of
an allegedly-similar crime outweighed any slight probative value regarding the alternative
suspect’s alleged involvement in the crimes for which the defendant was on trial. Id. at
665. According to the Court, admission of the DNA evidence would have resulted in a
mini-trial, because the State would have used gang evidence and evidence of robbery kits
to rebut the inference that the alternative suspect had committed the robbery and assaults
at issue, which would have misled and confused the jury, running afoul of Rule 5-403. Id.
In Taneja v. State, supra, 231 Md. App. 1, we held that the trial judge properly
exercised his discretion in excluding evidence, which Taneja sought to introduce, that
another individual murdered the victim. At trial, Taneja sought to insinuate that his wife’s
son had committed the murder for which he had been charged by questioning the son about:
the replevin lawsuit he brought against [the victim] in 2010, a statement he
made about her around that time that “someone should kill that b[itch]”;
living in the area where [the victim] was murdered; being familiar with
weapons; selling Taneja’s Germantown home after he was given power of
attorney following Taneja’s arrest; and a statement he made to Taneja in late
2011 or early 2012 that Taneja should go to a shooting range.
Id. at 18. The trial judge excluded the proffered testimony on the ground that it would not
“make more probative the defense in this case, that [Taneja] was not directly involved in”
the criminal activity for which he was being prosecuted. Id. at 16–17.
In affirming the decision of the circuit court, we agreed that the proffered testimony
“would have been, at best, only tangentially relevant and had a high probability of
7
confusing, distracting, and misleading the jury.” Id. at 18. We concluded that the evidence
Taneja sought to introduce was “disconnected and remote” with “no other effect than to
raise the barest of suspicion” that Taneja’s stepson might have murdered the victim. Id.
In the instant matter, the evidence regarding Spencer, specifically the testimony of
the officer who arrested him, the police report resulting from the investigation into
Spencer’s assault charge, the news article identifying Spencer as a potential suspect, and a
true test copy of his circuit court case did not give “credence to the theory that someone
else other than [Harris] committed the crime.” Allen, 440 Md. at 665 n.16.
The judge also properly precluded Ms. Mercer from testifying at trial that she may
have seen Spencer and the victim together around the time of the disappearance, which she
had not reported in 1996. The judge, however, had permitted Harris to raise the issue of
an alternative suspect by questioning law enforcement witnesses about other potential
suspects in the case. The trial judge’s decisions were based on a sound use of his discretion.
PRE-INDICTMENT DELAY
Harris next challenges the twenty-year delay between the discovery of the victim’s
body and his indictment, contending that his due process rights were violated by the State.
Prior to trial, Harris filed a Motion to Dismiss Due to Pre-Indictment Delay. During
the hearing on the matter, Harris argued that he had been prejudiced by the delay, because
certain witnesses were no longer available to testify and items of evidence allegedly no
longer existed:
• James Sexton, deceased, “was a reasonable suspect in the investigation,
and [investigators] also took his DNA for comparison against the victim,
and things like that. . . . [T]here’s information that he had contact with
8
my client, and talked to him, and told him he was going to take portions
of his camp, which is where the body was recovered”;
• Rose Lanzetta, deceased, a forensic analyst who “analyzed the blanket
that was found covering the body in this case. In her review of the
blanket, she discovered hairs, and she reviewed those hairs and compared
them . . . . The hairs were not a match with Mr. Harris. . . . [H]er
testimony or her lack thereof her testimony is, there’s an impossibility of
us to present that exculpatory information to the jury because she is no
longer able to be a witness”;
• Corinne Winters, currently residing in London, and a friend of the victim,
told detectives that she had seen the victim the day after she disappeared;
• Jamie Hurst, also purportedly saw the victim after she disappeared, but
who defense counsel added, “I don’t know if she’s available or not”;
• “[L]ost or destroyed” recordings of police interviews, including “at least
one of Mr. Harris’s interview and then one of, one interview of [the
victim’s] brother,” about which defense counsel proffered, “I would
imagine there are others”; and,
• A “body wire recording during another interview of Mr. Harris; that there
was video surveillance of Mr. Harris during one of the interviews in 1998.
And none of those are in existence.” Defense counsel asserted, “[w]e’ve
asked for them and I believe the State has looked for them, but regardless,
they’re no longer in existence. They don’t possess them.”
Defense counsel continued to explain the significance of the missing material:
Rest assured, Your Honor, I believe if there was, if it was, you know,
helpful to them, they would have it. But they, you know, I mean, there’s
a memorialization of what [Harris] said, that I would say the negative
things that he said. Those are all memorialized in the reports.
But if there’s one statement here or there that he made that could be
helpful to us, it’s probably not in those reports because it didn’t further
their case. And I’m not saying they’re trying to hide anything, but I’m
saying there’s no way that every single statement he made is
memorialized in this.
For example, in 1998 . . . [Harris] was interviewed for six hours and
there is a one-page report by Detective Hutchinson. Where are the rest
of his statements in those six hours?
9
If there was a body wire recording, which there’s reference to that, I
don’t know for sure if there was, that would be immensely helpful
because, as it is, I have no context of these statements. He supposedly
made all kinds of statements, and I don’t know what the officer said to
him to get him to say that.
Certainly, [Detective] Hutchinson is going to testify . . . but again,
how is, he’s not going to have independent recollection of what Mr.
Harris said or what he said back in 1998. Because the best recollection
of that would be those recordings, and Your Honor, we don’t have those
recordings. And I think whether or not they’re exculpatory or helpful to
us, we’re still entitled to them, and it’s so prejudicial that we don’t have
access to them.
And that begs the question, again, Your Honor, what other evidence
has been lost? If they, I mean, they knew that they were pursuing this
case as a cold case, they were working on it, they knew it was, they were
hoping, I guess, it was going to go to trial at some point, and they’ve lost
these recordings. What else has been lost?
***
The next thing that I would touch on would be faded memories here;
that is, what witnesses do not remember, 20 years later, what happened
on October 1st or December 1996.
The trial judge then noted that the State would be faced with similar issues regarding
“faded memories,” to which defense counsel again argued that it was his client solely being
prejudiced by the delay. Counsel for Harris also posited that there had been an “issue of
talking to witnesses where a lot of them don’t want to recall necessarily what happened.”
She continued, further explaining the prejudice Harris faced by the delay, particularly the
difficulty in procuring an alibi:
One other thing is the lack of ability to procure an alibi for my client.
As far as I know, they never really looked into his alibi. They knew he wasn’t
working, but they don’t know what he did that day. There’s no reference
anywhere in any reports as to what he did that day.
And now, 20 years later—he was never charged—so 20 years later,
his ability to recall what he did on October 1st of 1996, nothing. There’s
literally nothing there that he can recall in specificity.
10
Lastly, counsel for Harris argued about the scientific evidence in the case:
[O]ne final thing in regards to the prejudice will be this acid phosphatase
testing results that we, that I mentioned in there. Those results, in an e-mail
from the State, indicate that they were destroyed, they would have been
destroyed three years after the, I guess, the test would have been done.
And we have the one-page results which has some number. And
based on that, we can’t conduct any sort of independent review of that with
our expert because he doesn’t have any of the underlying data, the controls.
I mean, he can’t even surmise what, you know, measurement they used
because the information’s not there. The controls aren’t there and we can’t
do anything with that.
Defense counsel, acknowledging, pursuant to Clark v. State, 364 Md. 611 (2001),
that Harris would have to demonstrate both “substantial prejudice” and that the delay to
indict “was the product of a deliberate act by the government designed to gain a tactical
advantage,” began to explain how the State acted to gain such a tactical advantage:
And moving on to the second prong would be that the State acted to gain a
tactical advantage. As I noted in my motion, . . . [i]t’s extremely difficult to
prove that. Without some kind of e-mail or something, we don’t have the,
you know, the specific thing that says, yeah, they waited to charge him.
But what we do have is all of these other things, and that would be
that they could have—and I understand the State saying they didn’t have to
charge him when they had probable cause, I absolutely agree with that—but
they could have charged him years ago because of all this other prejudice that
has now developed.
She then posited that, in the typical situation involving a cold case, a subsequent indictment
ensues when a “smoking gun” is found or the case is otherwise “cracked,” such as a “DNA
hit” or other new evidence, which, she averred, did not exist here. Counsel for Harris
concluded by positing that dismissal was required because, although she could not directly
prove purposeful delay, the circumstances surrounding the lack of prosecution
demonstrated a lack of diligence which severely harmed Harris:
11
Your Honor, at best here, we have a lack of diligence in charging him sooner.
At worst, we have the State purposefully acting to gain a tactical advantage.
Again, it’s difficult for us to show that, but I think all of the inferences here
can lead to only that conclusion; that he, they wanted to benefit from their
delay. There’s no other way to come to that conclusion.
The State, initially, responded by stating that “there is no prejudice with regard, and
surprisingly none after 20 years, with regard to this case, and that there’s certainly no[]
purposeful tactical advantage with regard to the State.” The prosecutor then began to
address the points of prejudice raised by Harris:
There’s reference of a body wire tape that Detective Hutchinson had on him
during the six-hour interview [with Harris] in 1998. I was one of the people
that was able to hear that tape.
And for those of us who did cases back then, it, you know, it’s a wire
underneath clothes, it’s, you know, you can hear Detective Hutchinson,
barely hear the defendant. Every time somebody moves, there’s scratching
on the tape. Quite frankly, I think the quality wouldn’t have been one that
would have been admitted anyway.
But notwithstanding that, something on that tape was, if I did it, it was
an accident. Losing that tape, I don’t know how that would benefit the State,
and certainly, I don’t know how that would prejudice the defendant.
The prosecutor proceeded to address the specific witnesses that counsel for Harris
identified as no longer being available to testify at trial, noting the lack of prejudice
resulting from their unavailability:
• James Sexton, although deceased, had indicated to investigators that he had
not resided in the wooded area in which the victim’s body was found since
the Summer of 1996;
• The hairs which Rose Lanzetta had analyzed had been offered to defense
counsel for independent testing, but, as the prosecutor noted, defense counsel
had not “taken us up on that”;
• The State would look into ways in which Corinne Winter’s testimony could
be obtained;
12
• Jamie Hurst “has been subpoenaed . . . She’s coming. So I think that’s moot
at this point”; and,
• John Ramsey had always been an out-of-state witness, as he worked at a
carnival that came through Frederick some time before the victim’s
disappearance.
As to Harris’s alibi, the prosecutor contended that, because Harris had been
interviewed as a suspect in the rape and murder of the victim on multiple occasions, he had
reason to provide an alibi, which investigators could then check, but he had not provided
one.
With respect to the scientific evidence, the State responded:
With regard to the acid phosphatase test, it wouldn’t have made a
difference in 2000 because they destroy them every three years. And what
they’re asking for is something that’s not demanded for in discovery with
regard to this type of test. They’re asking for, like the instrument tests and
the protocol. They got the protocol, but the actual instrument, the level – I
can only compare it to what we do to DNA, which is sort of all of those, you
know what I’m talking about.
***
And, but we do have the doctor who was there, who will testify to the levels.
But with regard to this type of test as compared to DNA, those types of things
are not discoverable.
Lastly, the State contended that only “actual prosecutorial misconduct rather than
mere negligence” would satisfy the second Clark prong, whether the State stood to gain a
tactical advantage in delaying the indictment. She further posited that, the State, did in fact
have new evidence; although it may not be a “smoking gun” as defense counsel posited
would be necessary to overcome the delay in indictment, the State, nonetheless, possessed
13
new evidence. The State, however, contended that possession of new evidence was not
required to insulate its decision to delay indictment from dismissal.4
The trial judge ultimately found that, although Harris may have been prejudiced by
the delay, he had failed to prove that the State purposefully acted to gain a tactical
advantage, finding that the delay was a result of permissible prosecutorial discretion:
First of all, Maryland does not have a statute prescribing the time in
which a prosecution for a felony must be commenced. That’s – well, how
do you prove a negative? You prove it by citing the case that cites it,
Smallwood v. State, 51 Md. App. 463, 1983 case.
And as the State indicated, Clark v. State puts forth the two-prong test.
Number one, has the defendant suffered actual prejudice from the delay; and
two, the delay was the result of a purposeful attempt by the state to gain
tactical advantage over the defendant.
Regarding the first prong, I think it’s clear the defendant has suffered
some prejudice. I think the State has too. 20 years is going to make it
difficult for both sides. But the only thing I have to find is whether the
defendant suffered the prejudice.
But as counsel indicates, it’s difficult to show that the State, that the
delay was a purposeful attempt by the State to gain a tactical advantage. And
I’ve thought about this a good bit because, obviously, this is a very crucial
motion for the Defense.
You can see, in certain cases, a speedy trial case, for instance, where
the state has some problems with their case. They’ve indicted, they get up
close to trial, enter a nolle pros, and then a year or so later, they indict, getting
around the 180-day rule and whathaveyou [sic]. At that point, that’s a
purposeful act to get around the execution of a particular rule, statute,
whathaveyou [sic], to gain a result.
But here, what we have is, at the time, we have a police investigation
ongoing. It’s overseen by the State’s Attorney Office. The State’s
Attorney’s Office – what’s been alleged, because I don’t have any testimony
4
After being asked by the trial judge what new evidence the State possessed, the
prosecutor stated that, among other things, “at a minimum, we have a statement from the
defendant where he all but says he did it. In fact, he says he did it, but he doesn’t remember
doing it. So at a minimum, there’s a new statement from the defendant.” The prosecutor
assured the court that it did not possess any evidence which it was required to disclose to
the defense. The prosecutor also indicated that the crux of the decision to prosecute now
resulted from a re-evaluation by “fresh eyes” of the evidence already collected.
14
to this, but I have, certainly, in pleadings and in argument – that the State’s
Attorney’s Office made determinations that they did not want to indict at
particular times.
How often that occurred, I don’t know. That’s certainly not in
anything that’s been presented, but it certainly was, has been alluded to, that
was made by then State’s Attorney [] and his . . . head of the murder
division[.]
And that’s prosecutorial discretion, obviously.
And then to say that they did this, now you have to say that when [the
next State’s Attorney assumed office], he would have had then to make the
same determination that, no, I’m going to push this out farther and hope that
there’s additional prejudice to [Harris], and for, until 20 years come up.
I just don’t think the Defense has met their burden in showing a
purposeful attempt by the State to gain a tactical advantage at this time.
Now, there are, we’ve danced around several things in this motion.
Counsel’s hitting very had on several things that, at least at this time, are
speculative. I suspect that they will be raised later if, in fact, the speculation
becomes actual, as opposed to there [sic]. And I don’t know. I may feel
differently about it at that time. But at least at this time, I don’t believe
they’ve met the second prong, and so I’m going to deny the motion to
dismiss.
In evaluating the decision of the trial court, we are mindful that due process may
require the dismissal of an indictment if it is shown that a pre-indictment delay caused an
accused “actual, substantial prejudice and that the delay was the product of a deliberate act
by the government designed to gain a tactical advantage.” Clark, 364 Md. at 631 (citing
United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971) and United
States v. Lovasco, 431 U.S. 782, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977)); see also Greene
v. State, 237 Md. App. 502, 520 (2018). An accused maintains the burden of establishing
both that he or she was prejudiced by the delay and that the State manipulated the delay to
gain a tactical advantage over the accused. Clark, 364 Md. at 642–43; Greene, 237 Md.
App. at 521 (citing Smallwood v. State, 51 Md. App. 463, 472 (1982)). Prejudice, which
results from the passage of time, could include the impairment of memories, the loss of
15
evidence, the unavailability of witnesses and the decreased ability to defend. Clark, 364
Md. at 625–26; Greene, 237 Md. App. at 520. Juxtaposed against purposeful acts to gain
a tactical advantage are a number of “good-faith and well-reasoned bases” the State has for
a pre-indictment delay, such as the consolidation of multiple cases into one joint trial and
allowing evidence to adequately develop. Greene, 237 Md. App. at 521 (citing Smallwood,
51 Md. App. at 465–66).
In the present case, Harris, on appeal, does not argue that the State purposefully
delayed his indictment to gain a tactical advantage over him; he does contend, however,
that the abundance of prejudice resulting from the delay was sufficient to require dismissal.
His assertion, however, fails based upon his inability to demonstrate that the State deferred
to seek the indictment to gain a tactical advantage, as required by case law. See Clark,
supra, 364 Md. 611; Green, supra, 237 Md. App. 502; Smallwood, supra, 51 Md. App.
463. Accordingly, we hold that the trial judge did not err in denying Harris’s motion to
dismiss on the basis of a pre-indictment delay.
Nevertheless, Harris posits, citing, United States v. Lovasco, 431 U.S. 783, 795 n.17,
97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977), that a “due process violation might also be made
out upon a showing of prosecutorial delay incurred in reckless disregard of circumstances,
known to the prosecution, suggesting that there existed an appreciable risk that delay would
impair the ability to mount an effective defense.” Harris, without any citation to any
Maryland case,5 contends that, because the State “amassed no new evidence” between 2000
5
Harris also does cite United States v. Eight Thousand Eight Hundred and Fifty
(continued . . .)
16
and 2016, “the only conclusion that can be drawn from the State’s” delay to indict “is that
it was acting in reckless disregard” of his ability to mount an effective defense. As such,
he advances, the charges against him should have been dismissed. Harris, however, did
not argue this point before the trial court and will not be allowed to circumvent the
judgment of a trial court.
The test suggested in Lovasco, moreover, has not been adopted as part of our
jurisprudence. In Clark, 364 Md. at 642 n.21, the Court of Appeals, in a footnote, stated
that “whether the U.S. Supreme Court intended that a demonstration of recklessness may
be sufficient is unclear.” It is clear that, “[o]ur obligation is to follow the clear dictates of
the Court of Appeals. Clark set forth a two-part test for assessing pre-indictment delay and
gave no indication that there should be exceptions[.]” Willis v. State, 176 Md. App. 1, 6
(2007) (holding that the test adopted by the Court of Appeals in Clark to challenge a pre-
indictment delay applied to a challenge of an 18-year pre-indictment delay in theft
prosecution).
(continued . . .)
Dollars, 461 U.S. 555, 563, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983) (“As articulated in
United States v. Lovasco[], such claims can prevail only upon a showing that the
Government delayed seeking an indictment in a deliberate attempt to gain an unfair tactical
advantage over the defendant or in reckless disregard of its probable prejudicial impact
upon the defendant’s ability to defend against the charges.”) and Betterman v. Montana,
__U.S.__, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (2016) (“Due Process Clause may be violated,
for instance, by prosecutorial delay that is ‘tactical’ or ‘reckless.’” (quoting United States
v. Lovasco, 431 U.S. 783, 795 n.17, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977)), to support his
assertion that dismissal of the indictment is required based upon the State’s “reckless
disregard” in delaying his indictment.
17
EXPERT TESTIMONY
Before trial, counsel for Harris sought to exclude testimony from the State’s expert,
Dr. Stephen Cina, who would testify that the level of prostatic acid phosphatase6 found on
the vaginal swabs taken from the victim allowed him to determine that the victim had
sexual intercourse “within a few hours” of her death, contradicting Harris’s claim that he
had consensual intercourse with the victim three days before she went missing. The trial
judge ultimately denied Harris’s motion and permitted the testimony, a decision about
which Harris takes issue.
In a motion requesting a Frye-Reed hearing,7 counsel for Harris argued that,
although, “[a]cid phosphatase testing in and of itself is not the subject of Defendant’s
challenge” to the State’s expert testimony, Harris does take issue with “the conclusion
proffered by the State’s expert in regard[] to the timing of intercourse before her death.”
Counsel for Harris contended that the “expert’s conclusions are not supported by generally
accepted methods,” particularly, because the literature in which the State’s expert used to
arrive at his conclusion did “not cite a study concerning a factually similar cadaver, in that
none of the cadavers in the study were exposed to the elements for a period of 83 days.”
6
At trial, Dr. Stephen Cina, an expert witness for the State, explained that prostatic
acid phosphatase is an enzyme, “specifically glycoprotein,” which “is produced by the
prostate and seminal vesicles” and is found in seminal fluid.
7
Frye-Reed is the test in Maryland for determining whether expert testimony is
admissible. The name is derived from two cases, Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923), where the standard of general acceptance in the relevant scientific community
was first articulated, and Reed v. State, 283 Md. 374 (1978), where the Court of Appeals
adopted the Frye standard. See Blackwell v. Wyeth, 408 Md. 575, 577 n.1 (2009).
18
In fact, defense counsel averred, most “of the literature provided relied upon live study
subjects or recently deceased subjects held in a controlled environment[.]” Defense
counsel asserted, because the “theory being propounded by the State’s experts presents a
novel medical theory of conclusion not generally accepted in medical or scientific
communities,” the court was required to conduct a Frye-Reed analysis to determine the
admissibility of the subject of the expert witness’s testimony.
At the Frye-Reed hearing held before trial, Dr. Stephen Cina, who had previously
conducted autopsies as a fellow in the Office of the Chief Medical Examiner, was accepted
as an expert in forensic pathology and testified on behalf of the State. He had conducted
the victim’s autopsy in 1996 during his fellowship at Johns Hopkins University. In advance
of the hearing, he reviewed the autopsy report, which he co-authored as a fellow; the 2000
amendment to the autopsy report, which he had not authored, as he was not with the Office
of the Chief Medical Examiner in 2000; the articles that the addendum cited; a lab report
which indicated that a sperm head was found on one of the vaginal swabs; and a
temperature chart from October through December of 1996. The 2000 amendment to the
autopsy report, authored by Dr. Stephen Radentz and Dr. John Smialek of the Office of the
Chief Medical Examiner, which is of importance to the instant appeal and formed the basis
of Dr. Cina’s conclusion, stated:
Based on the evaluation of the acid phosphatase activity on vaginal swabs
taken at the time of autopsy and a review of current literature, the deposition
of seminal fluid occurred very close to or at the time of death of the decedent.
The acid phosphatase activity level of 430 U/L could not be attributed to
sexual intercourse 48 hours prior to her death. Studies involving volunteers
(living patients) revealed that elevated acid phosphatase activity due to
19
seminal deposition (sexual intercourse) is generally not detectable after 24 to
36 hours.
Dr. Cina testified that he agreed with the amendment’s statement, positing further that “the
literature that has come out since then hasn’t done anything to refute that.” He advanced
the notion that sexual intercourse with the victim occurred shortly before her death based
upon, what he considered, to be a high level of acid phosphatase collected from her vaginal
cavity:
Well, I mean acid phosphatase if it is at a high level in most studies they will
say that it correlates with a recent sexual activity. If you have a high level of
acid phosphatase which is a major component of seminal fluid plus sperm
you know you have dealt with an ejaculate in that body cavity. And it
happened recently.
He further explained the basis for his theory:
Well, in a living person acid phosphatase will break down. Certainly
higher in the first few hours after sexual activity. It starts dropping 12 hours,
24 hours dropping and a lot of studies by 48 hours it is virtually gone or not
detectible. So it is a fairly short lived substance in the vagina of a living
person. Most people would say sperm sticks around a little bit longer than
acid phosphatase but there are a few outlier studies that will say that sperm
can go way before that.
But if you see the two together in medicine we are taught if you hear
hoof beats don’t look for zebras. Look for the horse. So in a case where the
circumstances suggest a sexually related crime you have a sperm head in the
vagina and you have an elevated acid phosphatase level a medical diagnosis
would be that there is seminal fluid that was deposited recently in the vagina.
Dr. Cina then addressed what levels of acid phosphatase correlate with recent sexual
activity:
I mean studies vary as to what a normal vaginal acid phosphatase level
is. I’ve seen it as low as 8 or 10 units per liter. In some of the forensic
literature in looking after coitus they would consider a level of either 50 or
100 to be indicative that recent sexual activity had occurred. In one study,
Dr. Smialek, the chief [medical examiner], was involved in I believe every
20
case over 400 [units per liter] proved to have seminal fluid in it. In this case,
we’re looking at a level of 430 so it exceeds the threshold for many of the
papers that I’ve read that seminal fluid should be present.
Dr. Cina also cited the “Dahlke” study8 to support his opinion regarding the
correlation between the presence of acid phosphatase and recent sexual activity. The study
found that, after an alleged rape, “[t]he acid phosphatase value was more than 50 units [per
liter] in 87% of the patients seen within six hours, in 60% of the patients seen between six
and 12 hours, and in 40% of those seen between 12.5 and 18 hours.” The study further
found that a “high acid phosphatase value was not found after 18 hours[.]” Dr. Cina
explained that the study revealed that acid phosphatase values above 300 units per liter
were found in patients examined within eight hours of the reported rape; whereas, samples
from a control group of woman who had no intercourse within forty-eight hours showed a
mean acid phosphatase value of eight units per liter and none “had values of more than 50
[units per liter].”
Dr. Cina also agreed with the findings of another study9 that “quantitative [acid
phosphatase] levels can be used as a time since intercourse marker,” and that the average
“decay” of acid phosphatase, the time in which 50% of the tests become negative for the
chemical, was thirty-two hours. He also endorsed the conclusion of the study’s article
which stated that “the limited survival of [acid phosphatase] in the female genital tract is
8
Miriam B. Dahlke, et al., Identification of Semen in 500 Patients Seen Because of
Rape, A.J.C.P., Dec. 1977.
9
Lawrence R. Ricci, et al., Prostatic Acid Phosphatase and Sperm in the Post-Coital
Vagina, Annals of Emergency Medicine 11:10, Oct. 1982.
21
useful because it is easy to state whether intercourse did occur within a certain period of
time and that [acid phosphatase] was not merely persistent from previous consenting
intercourse.”
Dr. Cina, acknowledging that the studies on which he relied involved people above
ground, explained why seminal fluid deposited in the body “on or about the time of death”
resulted in high levels of acid phosphatase beyond forty-eight hours:
Well, you think [acid phosphatase] would stick around longer for two
reasons. Number one, the physiological processes that break down the
enzymes they stop working just like they do everywhere else. So that would
keep your acid phosphatase around.
***
It would keep the level higher because it wouldn’t dissipate and it wouldn’t
get broken down. The other thing is if you are dead you are not moving
around and you are not engaging in physical activity. So any physical
leakage would not happen. It would just sit there. So provided the body was
cold enough the seminal fluid could stick around for quite a long time.
When asked if “the idea that these substances in the body at the time of death will stick
around” is “a new or novel concept,” Dr. Cina responded “[n]o. For example, going back
to the gastric contents. People know gastric contents stick around in the stomach of a dead
person for hundreds of years. The fact that physiological processes stop when you are dead
has been known for hundreds of years.”
On cross-examination, at the hearing and at trial, when asked if decomposition of
the victim’s body could have accounted for the high level of acid phosphatase, Dr. Cina
admitted that it might, but further explained that because there was “a very low level in the
rectum, and nothing in the oral cavity really suggests that you do have semen deposit in
the vagina. If you want to say that, well, all of this was produced by bacteria after death
22
and decomposition, you’d expect to see elevated levels everywhere.” He also stated that
he was not aware of any studies which analyzed acid phosphatase levels of a person who
had been deceased for three months, such that he could not rule out that decomposition
may have affected the level to “some degree,” but noted that “as I have stated before in the
setting of a naked girl who is bound in a secluded area with sperm present in the vagina the
natural medical conclusion is that the acid phosphatase is from seminal fluid.”
At the conclusion of Dr. Cina’s testimony, the defense called Dr. Karl Reich, the
chief science officer at Independent Forensics, a forensic DNA laboratory in Lombard,
Illinois, who was accepted as an expert in acid phosphatase, microbiology and molecular
biology. Dr. Reich testified that, although screening for acid phosphatase is a method in
which to detect semen in a rape victim, it is impossible to determine the time since
intercourse based upon acid phosphatase levels. He contended that Dr. Cina’s conclusion
to the contrary “is unsupported by relevant experiments and is unsupported by any actual
biochemical enzymic analysis from cadavers.” Accordingly, in Dr. Reich’s opinion, there
is no marker, no laboratory test that will provide the time since intercourse, nonetheless,
by measurement of acid phosphatase levels. In so concluding, Dr. Reich cited an article,
entitled “A Critical Appraisal of the Value of Vaginal Acid Phosphatase Determination for
the Estimation of Post Coital Time,”10 from a Brazilian medical journal which reviewed
200 sexual assault cases. The authors of the article applied a “very simple mathematical
10
Affonso Renato Meira, et al., A Critical Appraisal of the Value of Vaginal Acid
Phosphatase Determination of the Estimation of Post-Coital Time, Rev. Paul Med. 110(4),
at 173–76, Jul./Aug. 1992.
23
analysis” to conclude that no correlation between acid phosphatase levels and the time
since intercourse existed, a paper which Dr. Reich stated was “fully in line with the modern
literature on this topic.”
Dr. Reich also testified that acid phosphatase, albeit, generally associated with
seminal fluid, may also be produced by bacteria and fungi. As such, Dr. Reich, in his
report, explained that decomposing cadavers often produce large amounts of bacteria and
fungi. He also noted that none of the studies on which Dr. Cina relied analyzed cadavers
that had been left in the open, nor did they consider other factors which contribute to the
existence of acid phosphatase or the physiological variation of the amount of seminal fluid
produced by men.
Dr. Reich also took issue with the size of the sample collected from the victim,
positing that it was “completely unknown and undeterminate”: “Collect more semen on the
swab and the test is likely more positive, collect less (or miss the semen altogether) and the
tests will appear weaker or negative.” Dr. Reich posited that none of the reports cited by
Dr. Cina addressed this concern of his either.
Following the hearing, the motions judge denied defense counsel’s motion to
exclude evidence regarding prostatic acid phosphatase and the timing of intercourse,
finding Dr. Cina’s opinion to be based on generally accepted methodology within the
relevant scientific community:
All right, a hearing was held in this matter on June 27th when
defendant’s motion in limine to disallow the testimony of Dr. Stephen Cina,
who is an expert named by the State as it relates to an estimate of time prior
to death that sexual intercourse occurred. It is only this opinion that formed
the basis for the defense motion and objection.
24
***
[P]ursuant to Re[e]d v. State, the primary question presented by the
motion in limine is can the State support the opinion of Dr. Cina that
intercourse took place within six to twelve hours or at least within 36 hours
prior to death, with science that utilizes methods and theories that are
generally accepted in relevant disciplines. Dr. Cina testified that he is an
M.D., a forensic pathologist who has performed close to 7,000 autopsies.
When queries as to whether he was a scientist, he stated he would describe
himself as combining science and the art of practicing medicine.
In so doing, during his examination, and autopsy, he noted that the
victim was found unclothed and bound at the crime scene. He was then
looking for during his autopsy, number one, sperm; and number two, acid
phosphatase. He rendered a medical opinion based upon these factors that
placed the time of intercourse relative to the time of death.
He was not the first to do so. Dr. John Smialek, chief medical
examiner, and Dr. Stephen Raddance (phonetic sp.), Assistant Chief Medical
Examiner, signed an amendment to the autopsy, amendment to opinion of
the autopsy. This was dated January 5, 2000, stating that “The deposition of
seminal fluid occurred very close to or at the time of the death of the victim.”
They cited five peer reviewed articles to support their position regarding acid
phosphatase and its relationship to the issues in this case. A review of these
articles reveals that their conclusions are as the doctors found and relied
upon.
Dr. Cina concurred with their opinion and placed the time at 6 to 12
hours, based upon the crime scene, the presence of sperm, and the high level
of acid phosphatase. He also testified he saw no genital trauma and he stated
he could not recall ever testifying prior to this regarding acid phosphatase.
Dr. Reich testified he is a Ph.D. forensic scientist. He was most clear
and adamant that an opinion as to the time of intercourse relative to death
could not be opined based upon the acid phosphatase test alone. He made
sweeping statements that the acid phosphatase test cannot be used for this
purpose and that is not accepted in the forensic scientist community. He
worked hard to get in his testimony the buzz words of junk science, which I
assume he knew were relevant from the case law.
He stated that no literature supports this conclusion and cited a 1992
peer reviewed article for support. It is important to understand that although
two experts both testified as to acid phosphatase, their respective roles are
much broader than this one area of overlap. Dr. Cina examines the body,
considers the circumstances of death, how the body was found, and performs
autopsies. Dr. Reich performs the tests upon the evidentiary items collected
during the investigation and autopsy, albeit he was not the forensic scientist
to run tests in this particular case.
25
The intersection or crossover of experts consists of only one of Dr.
Cina’s conclusions. Dr. Reich cannot opine regarding the art of medicine
employed by Dr. Cina in coming to his conclusions. Based upon that alone,
I could deny the defendant’s motion.
However, looking at the acid phosphatase in particular, the question
remains based upon Dr. Reich’s testimony, can Dr. Cina refer to it at all in
giving his opinion? As stated before, the amendment to the opinion signed
by Dr. Smialek and Raddance [sic] referred to five articles from the 1970s to
support their position. Dr. Reich referred to the 1992 article from Brazil to
support his, as well as the general statement that no one supports the
conclusion reached in the 1970s anymore.
There are two problems with this. First is the 2001 article from Dr.
Kim Collins and Dr. Alan Bennett, which doctors seemed to testify in support
of his position. This article discusses the relationship between finding sperm
and elevated acid phosphatase in sexual assault cases. It concludes that this
evidence is crucial to prove sexual assault when the evidence is retrieved
post-mortem.
Also, the conclusion of the Brazil report is that their findings cast
doubt on the validity of acid phosphatase in the determination of an estimate
of post-coital time of death. This is a far cry from the words used by Dr.
Reich and stated that acid phosphatase is junk science. In fact, the Brazil
article inferentially states that the acid phosphatase test in establishing the
time of intercourse before death is the method that is accepted by the
scientific community and it is their report that casts doubt on whether it
should be.
I have nothing before me which definitively states that the use of acid
phosphatase is not recognized for this purpose. The evidence rather shows
that it is. In fact, extrapolating the conclusions of the Brazil study, acid
phosphatase is recognized in the medical and scientific community as the
method of determining the time of intercourse prior to death. The fact that
the Brazil study was done and its conclusion is it casts doubt merely
recognizes the status of the test. This gives rise to the classic case of dueling
experts whose opinions need to be argued to and considered by a jury.
Therefore, I find the State has met its burden, and I deny defendant’s
motion in limine.
After the close of evidence and before jury deliberation began, the trial judge
provided the jury with an instruction regarding the use of the expert witness testimonies in
the case:
26
Now, an expert is a witness who has knowledge, skill, experience, education
or special training in a given field and therefore is permitted express opinions
in that field. You should consider an expert’s testimony together with all of
the over evidence.
In weighing the opinion portion of an expert’s testimony in addition
to the factors that are relevant to any witness’s credibility you should
consider the expert’s knowledge, skill, experience, training, or education as
well as the expert’s knowledge of the subject matter about which the expert
is expressing an opinion. You should give expert the weight and value you
believe it should have. You are not required to accept an expert’s testimony
even if it is uncontradicted.
As with any other witness, you may believe all, part or none of the
testimony of an expert.
Harris, asserting error, citing Blackwell v. Wyeth, 408 Md. 575 (2009) and its
progeny, asks us to reverse his conviction and to classify Dr. Cina’s conclusion—that the
presence of high levels of acid phosphatase found in the victim’s vaginal cavity indicates
that sexual activity occurred within hours of her death—as “junk science.” Harris’s
reliance, however, is misplaced because, in Blackwell, the Court of Appeals held that the
trial judge did not abuse his discretion by excluding expert testimony which failed to bridge
the “analytical gap” between the data relied upon and the ultimate conclusion—that
vaccines containing thimerosal were linked to autism in certain genetically susceptible
individuals. In the present matter, no such analytical gap exists. The trial judge found that
no evidence was adduced during the Frye-Reed hearing to demonstrate “that the use of acid
phosphatase is not recognized for [the] purpose” of determining how close to death sexual
intercourse occurred. He found Dr. Reich’s testimony, which attempted to negate Dr.
Cina’s conclusion, to be a “far cry” from classifying it as “junk science,” as the study upon
which Dr. Reich relied “inferentially state[d] that the acid phosphatase test in establishing
the time before death is the method that is accepted by the scientific community,” although
27
it “cast doubt” on such practice. This is not a case where, like in Blackwell, the trial judge
found bases to be lacking for the theory that thimerosal caused autism.
Rather, in the present case, Dr. Cina and Dr. Reich had been qualified as experts,
pursuant to Maryland Rule 5-702.11 The judge allowed them each to offer their conflicting
conclusions to the jury, resulting in a “classic case of dueling experts whose opinions need
to be argued to and considered by a jury.” See Roy v. Dackman, 445 Md. 23, 51 n.16
(2015) (stating that an attempt to invalidate the entire basis of an expert’s opinion based
upon contrary studies from the one relied upon by the expert “is the grist for cross-
examination and dueling experts and for resolution by the relative weight assigned by the
fact-finder.”); Sugarman v. Liles, 460 Md. 396, 413 (2018). The trial judge properly
exercised his discretion in concluding that Dr. Cina’s expert testimony juxtaposed by Dr.
Reich’s expert testimony provided the grist for the jury to best weigh. See also United
States v. Rodriguez, 581 F.3d 775, 795 (8th Cir. 2009) (holding that questions about the
factual basis for a time-since-intercourse theory, such as that proffered by Dr. Cina, goes
“to credibility, not admissibility”).
11
Maryland Rule 5-702 provides that:
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.
28
Harris, nonetheless, without citation of authority, avers that, we should only
consider Dr. Cina’s testimony at the Frye-Reed hearing, not his testimony at trial because
we are reviewing the trial court’s denial of his motion to exclude. His contention, however,
is without merit, because, unlike our review of the denial of a motion to suppress evidence,
the trial judge did permit Dr. Cina’s testimony at trial. Further, our review of the validity
of an expert’s testimony is not limited to the information contained in the record and should
take notice of articles and other publications “which bear on the degree of acceptance by
recognized experts that a particular process has achieved[,]” as well as judicial opinions on
the matter and the like. See Clemons v. State, 392 Md. 339, 359 (2006) (quoting Wilson v.
State, 370 Md. 191, 201 (2002)); State v. Reed, 283 Md. 374, 399 (1978).
JUDGMENT OF THE CIRCUIT COURT
FOR FREDERICK COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
29