State v. Matthews

479 Md. 278

277 A.3d 991

STATE of Maryland

v.Kirk MATTHEWS

No. 15, Sept. Term, 2021

Court of Appeals of Maryland.

June 22, 2022

Argued by Peter R. Naugle, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Helki Philipsen, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before:^* Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Alan M. Wilner (Senior Judge, Specially Assigned), JJ.

Biran, J.

In Rochkind v. Stevenson , 471 Md. 1, 236 A.3d 630 (2020), this Court adopted the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), concerning the admissibility of expert testimony. Our decision in Rochkind generated substantial comment from the Maryland bar.¹ It was unclear to some commentators how trial courts would interpret Rochkind and how, if at all, Rochkind would change the dynamics of litigation in Maryland.² The case presently before us provides the first opportunity for us to address, post- Rochkind , whether a trial court erred in deciding the admissibility of expert testimony.

Kirk Matthews, the Respondent here, was convicted in the Circuit Court for Anne Arundel County of murder and related charges in connection with the shooting deaths of Linda McKenzie and Leslie Smith in the early morning on June 1, 2017. Evidence collected at the crime scene indicated that the shooter used a 12-gauge shotgun to kill McKenzie and Smith. Video footage obtained from a nearby home security camera showed a person carrying a shotgun a few minutes after the shootings. The suspect's face was indiscernible in the video.

Prior to Matthews being charged in the killings, the investigating police officers attempted to determine the height of the person shown in the video footage. To that end, they enlisted the assistance of the Federal Bureau of Investigation ("FBI"). Using a technique known as "reverse projection photogrammetry," FBI scientists determined that the person shown carrying the shotgun was approximately 5’8" tall, plus or minus two-thirds of an inch. However, the FBI scientists noted in the report detailing their analysis and findings that, due to several variables, "the degree of uncertainty in this measurement could be significantly greater."

Police measured Matthews's height as approximately 5’9". Prior to Matthews's trial, his attorneys moved to preclude the State from introducing expert testimony from the FBI scientists who had conducted the reverse projection photogrammetry analysis. The defense argued that, given the unknown degree of uncertainty that applied to the FBI's height measurement, the jury should not be permitted to hear expert testimony concerning the FBI's analysis. After holding a hearing on the defense's motion, the trial court denied the motion, ruling that the State would be permitted to introduce the challenged expert testimony.

One of the FBI scientists testified at Matthews's trial, consistent with her report, that the subject shown in the video was approximately 5’8" plus or minus two-thirds of an inch. The expert stated that she could not scientifically quantify several variables that might lead to a higher degree of uncertainty than plus or minus two-thirds of an inch. However, she explained why she nevertheless believed that her height measurement was reasonably accurate. Defense counsel cross-examined the expert at length about the variables that could lead to the higher degree of uncertainty. The jury found Matthews guilty of two counts of second-degree murder and several related charges. Matthews appealed.

The Court of Special Appeals reversed Matthews's conviction, holding that the trial court erred in admitting the expert testimony. The intermediate appellate court reasoned that the inability of the expert witness to provide a margin of error that accounted for several potential variables rendered the height measurement unreliable and therefore inadmissible under Maryland Rule 5-702 and Rochkind . The State petitioned this Court for further review.

As we explain more fully below, after Rochkind (as it was before Rochkind ) it is the rare case in which a Maryland trial court's exercise of discretion to admit or deny expert testimony will be overturned. This is not one of those cases. Accordingly, we will reverse the judgment of the Court of Special Appeals and direct that Matthews's convictions be reinstated.

IBackground

A. The Double Homicide

Early on June 1, 2017, police responded to the area of Scott Town Road in Shady Side, Maryland, based on a 911 call involving the sighting of a man armed with a shotgun and gunshots having been fired. The officers eventually discovered the bodies of Linda McKenzie and Leslie Smith in a dirt clearing off Scott Town Road. The cause of death for each victim was multiple shotgun wounds to the upper extremities, at close range. Trails of blood leading from the road to the location of McKenzie's and Smith's bodies indicated that they had been shot on Scott Town Road and then dragged into the clearing. Ballistics evidence indicated that the shooter used a 12-gauge shotgun, but the murder weapon was never recovered.

McKenzie and Smith were romantic partners, but McKenzie was angry at Smith on the evening of May 31, 2017. McKenzie and Smith separately drove to Scott Town Road that night.

After Smith arrived at the dead-end area at the west end of Scott Town Road, McKenzie chased Smith back up Scott Town Road in a pickup truck, with Smith driving a white Saturn sedan in reverse. Shortly after the two vehicles passed the intersection of Scott Town Road and Nick Road, the car Smith was driving backed into a ditch and came to a stop on Scott Town Road near the intersection of Shady Side Road. That occurred at 11:08 p.m. At approximately 11:57 p.m., police arrived on the scene. The car was removed from the ditch, and at 12:08 a.m. on June 1, Smith pushed the car down Scott Town Road along with a man named Joseph Tongue; they placed the car in the driveway of the home that belonged to Tongue's grandmother on Scott Town Road just west of the intersection of Nick Road. The police then left the scene.³

After the car was removed, Smith and McKenzie remained in the vicinity of Scott Town Road. Smith and McKenzie were shot in quick succession on a stretch of Scott Town Road that lies to the west of Nick Road shortly before 12:39 a.m. At trial, no witness testified to having seen the shootings.⁴

B. The Video Footage of the Suspect

Having received a 911 call that included a report of shots being fired, police officers returned to Scott Town Road at approximately 12:43 a.m.; they subsequently discovered the bodies of McKenzie and Smith in a clearing off Scott Town Road to the west of Nick Road. Later in the morning on June 1, officers obtained video footage from two security cameras affixed to the home located at 1291 Scott Town Road, a short distance from where the shootings occurred. While those cameras did not record the shootings, they did capture relevant events before and after the shootings. Before the shootings, the video footage showed McKenzie chasing Smith in their respective vehicles. Shortly after the shootings, the cameras captured several people quickly walking west on Scott Town Road, away from the scene of the crime, as well as a car backing down Scott Town Road, also away from the crime scene. A few minutes later, one of the cameras recorded an individual cutting across the front yard of 1291 Scott Town Road. The individual shown in that footage carried what appeared to be a shotgun. The suspect's facial features and race were completely indiscernible, due to the video being captured at night and the significant distance between the camera and the suspect. However, it was clear that the suspect was wearing a cap or some other kind of head covering.

C. The FBI's Analysis of the Video Footage

The Anne Arundel County Police Department ("AAPD") sought to determine the height of the person pictured in the video carrying a shotgun. On June 23, 2017, a request to determine the height of the individual was submitted to the Forensic Audio, Video and Image Analysis Unit of the FBI's Digital Evidence Laboratory.

According to a December 5, 2017 report written by Kimberly A. Meline, a forensic scientist in that unit, the FBI received a DVD containing four videos and 13 still images. Meline wrote that "[t]he video files were processed for images best depicting the subject," and "[o]ne image depicting the questioned individual was selected for photogrammetric analysis." Meline reported that, after conducting a reverse projection photogrammetry analysis on site at 1291 Scott Town Road on November 28, 2017, "[t]he vertical distance from the ground to the top of the headwear of the questioned individual was determined to be approximately 5’8", +/- .67"." The report then provided a qualification: "However, due to the subject to camera distance, the resolution of the imagery, the unevenness of the landscape, and the body position of the subject, the degree of uncertainty in this measurement could be significantly greater."

D. The Pretrial Motion to Exclude Expert Testimony

In the meantime, on September 29, 2017, a grand jury returned an indictment in the Circuit Court for Anne Arundel County charging Matthews with murder and related offenses.

On August 3, 2018, Matthews filed a pretrial motion to exclude expert testimony regarding the FBI's photogrammetric analysis. Matthews contended that exclusion of such expert testimony was warranted, among other grounds, under Maryland Rules 5-702⁵ and 5-403⁶ and under the Frye - Reed⁷ standard for admissibility of expert testimony. The State filed a response asserting that photogrammetry is a generally accepted methodology and that "concerns about the validity of the experts [sic] conclusions ... should be presented to the jury through cross...