Matthews v. State , 249 Md. App. 509 ( 2021 )

Kirk Matthews v. State of Maryland, Case No. 3280, September Term 2018. Opinion by
Nazarian, J.
EXPERT WITNESSES – RULE 5-702(3) – ANALYTICAL GAP UNBRIDGED
Expert photogrammetry and reverse photogrammetry projection testimony was unreliable,
and failed to satisfy Maryland Rule 5-702(3), where the expert’s seemingly precise
calculation of the suspect’s height failed to account for missing and potentially significant
input variables. As a result, the analytical gap between the data available for reverse
photogrammetry projections and the conclusion the expert offered to the jury remained
unbridged, and the trial court erred by admitting the testimony over objection.
Circuit Court for Anne Arundel County
Case No. C02-CR-17-002275
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 3280
September Term, 2018
______________________________________
KIRK MATTHEWS
v.
STATE OF MARYLAND
______________________________________
Graeff,
Nazarian,
Alpert, Paul E.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Nazarian, J.
______________________________________
Filed: February 25, 2021
* Ripken, J., did not participate in the Court’s
Pursuant to Maryland Uniform Electronic Legal decision to designate this opinion for publication
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
pursuant to Maryland Rule 8-605.1.
2021-02-25 14:14-05:00
Suzanne C. Johnson, Clerk
After a jury trial in the Circuit Court for Anne Arundel County, Kirk Matthews was
convicted of two counts each of second-degree murder and use of a firearm in the
commission of a crime of violence and one count each of possession of a shotgun after a
disqualifying conviction and illegal possession of ammunition. On appeal, he argues that
the court erred by permitting one of the State’s witnesses to testify about an allegedly
inconsistent prior statement made by another witness, by precluding him from questioning
another State witness about the witness’s criminal charges, and in denying his motion to
preclude an expert report and testimony using photogrammetry and reverse
photogrammetry projection. We agree the court erred in denying Mr. Matthews’s motion
to preclude the expert testimony and report, reverse on that ground, disagree with
Mr. Matthews’s other contentions, and remand for further proceedings.
I. BACKGROUND
The story of this case is complicated and hard to follow. A great many people were
involved; many of them are related, others have lived in the affected neighborhood for
years. Everything happened late at night, and the participants’ vision and memories were
incomplete and frequently clouded by substances. There was some video footage, but it too
was incomplete. The challenge for everyone lay in piecing together fragments of evidence
that took many different forms.
On June 1, 2017, at approximately 12:30 a.m., the bodies of Linda McKenzie and
Leslie Smith, her boyfriend, were found by the side of Scott Town Road, a dead-end street
in Shady Side. The cause of death for both was multiple shotgun wounds to the upper
extremities at close range. After a lengthy trial at which the only disputed issue was the
identity of the shooter, Mr. Matthews was convicted of both murders and related charges.
In the hours before the victims’ deaths, each had traveled separately to Scott Town
Road. They eventually got into a noisy fight that culminated in them chasing one another
down the road in cars, one car driving forward and the other in reverse. The car driving in
reverse backed into a ditch near the entrance of Scott Town Road. The police were called,
and the car was removed from the ditch with the help of a neighbor, Joseph Tongue. After
the car was removed, the victims remained in the vicinity, and the shooting occurred a short
time later.
According to the prosecutor’s opening statement, Scott Town Road is populated
primarily by families who have lived in the area for generations. The prosecutor noted that
many of the residents have developed family-like relationships and generally consider each
other cousins, whether or not they’re actually related by blood or marriage. Scott Town
Road is also known to the police department as an open-air drug market, according to the
prosecutor’s opening statement:
So this area of Shadyside, this is Scotts Town Road. This is
Shadyside Road, and this is the road that cuts through called
Nick Road, so there’s an intersection at the top of Scotts Town
Road and Nick Road. This area is commonly known to the
police department as what’s called an open-air drug market.
Particularly, the Scotts Town Road and the intersection of Nick
and Scotts Town Road.
Now . . . the locals call this dead-end part of Scotts Town
“Down Bottom.” They call that entire road “Lane,” and this
section up here at the intersection of Nick Road and Scotts
Town Road is called “Up Top”. . . . What you’re going to hear
is that on any given day, if you drove Down Bottom, to the end
of Scotts Town Road, you could go and buy drugs of any sort,
illegal drugs, from somebody down in that area. Or . . . you can
2
return Up Top to the intersection of Nick Road and Scotts
Town Road and there’s a drug house on the corner.
The day before the murders, the police had set up a surveillance pole camera at the
top intersection of Nick Road and Scott Town Road. Another house, the Blunts’, has two
security cameras. One of the Blunts’ cameras is mounted on the garage and aims down the
driveway, and the other is set on the left-hand corner of the house aimed out to the street;
both point directly at Scott Town Road. The cameras didn’t capture the shootings on video,
but they did provide evidence and helped paint the picture of events on the night of the
murders.
Among the events captured on video was the car chase, which ultimately ended with
one of the cars driving in reverse backing into the ditch. From there, the video showed Ms.
McKenzie, Mr. Smith, and Mr. Tongue walking up and down the road trying to figure out
how to get the car out of the ditch. Then the police arrived, and Mr. Tongue and Mr. Smith
are seen pushing the car underneath the pole cam and out of view, then into Mr. Tongue’s
grandmother’s driveway.
Roughly twenty minutes after the police left Scott Town Road, the Blunts’ cameras
captured people running away from the scene of the shooting and a car backing away from
the scene. The video then shows an individual walking on the street, carrying what appears
to be a shotgun, cutting past the Blunt house and into the woods.
Both the events following the car’s removal from the ditch and the identities of the
individuals involved were hotly contested. Many of the witnesses were inebriated and
struggled to remember the details of the evening.
3
Mr. Tongue testified that he was raised by his grandmother on the Lane, was friends
with Ms. McKenzie, and is Mr. Matthews’s cousin. He said that in the hours leading up the
shootings he consumed about one pint of vodka, four PCP “dippers,” and four Xanax bars.
He maintained that he had difficulty remembering anything from the night of the murders
after pushing Ms. McKenzie’s car into his grandmother’s driveway. Throughout
Mr. Tongue’s testimony, he repeatedly reread his own grand jury testimony to refresh his
memory. Before the grand jury, he stated that after pushing the vehicle into the driveway,
he told the victims to leave because he saw Mr. Matthews coming from Nick Road holding
what appeared to be a long gun. Mr. Tongue repeated this statement to the trial jury, but
said he could not identify Mr. Matthews by his face or clothing and had presumed the
individual was Mr. Matthews based on his walk.
Mr. Tongue then walked away and heard Mr. Matthews arguing with the victims.
After Mr. Tongue was some distance away, he heard gunshots and ran. He looked back
after the second gunshot and saw Mr. Matthews standing next to Ms. McKenzie and
Mr. Smith lying on the ground. The video also showed Mr. Tongue continuing to run and
jumping into the car of his cousin, Kevin Matthews, along with a friend, Rico Hicks, who
also was also fleeing the scene.
Kevin1 dropped off Mr. Tongue and Rico at a neighbor’s house, where they slept
for an hour or more because, Mr. Tongue testified, they were “drunk” and “high.”
Mr. Tongue testified that at roughly 4:30 a.m. on June 1st, the two encountered the police
1
We will on occasion refer to Kevin Matthews, Rico and Edward Hicks, and Richard and
Charles Jackson by their first names, purely for clarity and meaning no disrespect.
4
when they tried to leave the neighbor’s house and the police escorted them to the police
station. The police questioned Mr. Tongue at that time, but he did not mention
Mr. Matthews.
Later that same day, around 6:30 p.m., the police again questioned Mr. Tongue
when they stopped a car in which he and Rico were riding. Mr. Tongue did not mention
Mr. Matthews in response to those questions either. About a week later on June 7th, the
police took Mr. Tongue to the police station for an unrelated arrest warrant and they again
questioned him about the murders. Mr. Tongue testified that the police insinuated to him
that they could help him out with his warrant, and they remarked that “inconveniences like
this are going to keep happening,” and that “things in the area were not going to go back
to normal.”
Finally, Mr. Tongue testified that on August 17th, the Fugitive Apprehension Squad
picked up him and Rico pursuant to a warrant to obtain their DNA. He testified that the
police questioned him a fourth time about the murders, and accused him of “not being
honest,” and said he was “going to be in this” whether he liked it or not. The detectives
then showed Mr. Tongue the Blunt house camera footage, and they warned him that he
would see Mr. Matthews in it. Mr. Tongue later identified Mr. Matthews as the individual
holding the gun, but maintained that he did not see the murders.
On September 22nd, Mr. Tongue testified before a grand jury after meeting with the
prosecutor. At that time, he provided his first account of seeing Mr. Matthews with a
shotgun standing within five feet of the victims.
Kevin is Mr. Matthews’s and Mr. Tongue’s first cousin. At trial, he testified that he
5
drove the car into which Mr. Tongue and Rico jumped when fleeing Scott Town Road on
the night of the murders. Kevin told detectives that he saw Mr. Matthews Up Top at about
10:30 p.m. on May 31st but didn’t see him again the rest of the night. He testified that there
was a large amount of drug traffic that night, and that loud, rambunctious activity “does
not belong” on the Lane. Kevin could not remember what caused him to drive his car in
reverse with Mr. Tongue and Rico inside.
Richard Jackson grew up in the area and traveled to the Lane to do drugs the night
of May 31st He testified that he arrived in the evening and was Down Bottom with
Mr. Matthews and Rico. He saw the victims arguing with each other as they got into their
cars and as Ms. McKenzie chased Mr. Smith into the ditch. Richard followed the chase in
his own car, with Rico, then parked on the side of Scott Town Road. He testified that
Mr. Matthews walked up to the victims and said something like, “come on, y’all. Can you
please keep it down?” He explained that Mr. Matthews “was trying to have them, you
know, quiet down because they were being super loud.” But Mr. Smith was “running his
mouth,” and that’s when Mr. Matthews “just said, that’s all right, I got something for your
ass or something along those lines” and walked away from the victims. Richard testified
that this encounter occurred right before the police came to assist with the car in the ditch,
but that he left the scene “pretty much right after” the police left, explaining, “I was waiting
for them to leave so I could leave.”
Richard also testified that right before he left, he saw Mr. Matthews walking down
Nick Road towards Scott Town Road carrying a shotgun. Because of where his car was
parked, he could see Mr. Matthews from a distance, walking down the road. He decided to
6
leave, and he passed Mr. Matthews (and saw him with the shotgun) on the way out. On
June 19, 2017, Richard was questioned by the detectives and didn’t mention that he had
seen Mr. Matthews walking down Nick Road with a shotgun after the ditch incident. When
asked why he did not tell the police, Richard responded that “[i]t must have slipped [his]
mind.” Instead, Richard had told police that he saw Mr. Matthews walking up and down
the road with a shotgun forty minutes before the victims’ car went into a ditch, and he went
on to describe the shotgun in detail. Finally, Richard testified that he had been informed
during that June 19th questioning about a reward for information leading to the murder
weapon.
Charles Jackson also was on the Lane the night of May 31st, in his case to pick up
a friend. He heard Mr. Matthews say that Ms. McKenzie was “making the Lane hot, and
to get the shit out of there.” Charles drove home while the victim’s car was still in the ditch,
and he testified that he did not pass any cars parked along the side of Scott Town Road on
his way. He explained that it is not a wide road, and there is nowhere to pull over, so he
would have noticed another parked car.
Rico grew up in the Shady Side area, roughly two minutes from Scott Town Road,
and is Mr. Matthews’s and Kevin’s first cousin. He testified that on May 31, 2017, he
arrived at the Lane in the evening with Kevin and another individual, Peter Brown. Rico
bought drugs and, about a half-hour later, walked towards the Bottom alone. On his way,
he ran into Mr. Tongue, who followed him, and they passed Ms. McKenzie, who also
walked alone on Scott Town Road towards the Top. When Rico arrived Down Bottom, he
got high on PCP and crack. Sometime later, while standing in front of the Blunt house,
7
Rico heard the gunshots and took off running, and testified that Kevin and Mr. Brown
picked him and Mr. Tongue up. Rico told the prosecutor that he never looked back and
never saw Mr. Matthews the night of the murders, and he repeated the same statements to
the police and the grand jury. Moreover, he was unable to recognize the individual with
the long gun in the surveillance video.
Rico’s uncle, Edward Hicks, testified over the objection of defense counsel. Edward
testified that he heard gunshots the morning of June 1, 2017, and later asked Rico what
happened. He testified that Rico told him he had seen Mr. Matthews shoot two people and
drag them off the road, and that it was the worst thing he had ever seen. Edward admitted
that he did not contact the police until five weeks later, and he asked about a reward for
providing information that would lead to an arrest. When he later spoke with the
prosecutor, he asked again about reward money.
Finally, Kathrine Bragg testified on behalf of the defense. In May 2017, Ms. Bragg
was living on Nick Road, where she had moved only six months earlier, with her husband
and three children. Ms. Bragg was unfamiliar with the neighborhood before moving there.
The night of May 31st, around 10:30, she sat in the driveway of her home with her teenage
daughter waiting for her husband to return from work. Ms. Bragg drank four or five
White Russian cocktails that night, a regular occurrence for her.
While sitting in the driveway, Ms. Bragg saw a barefoot white woman walk past her
house in the direction of Scott Town Road. She described the woman as angry, talking on
her cell phone, and wearing short-shorts and a short sleeve top—the same clothing
Ms. McKenzie was wearing in crime scene photos. Next, a white, heavier-set man walked
8
past the Bragg residence in the same direction as the woman. Ms. Bragg heard arguing
between the man and woman, and the man stated that “he knew he should have left her.”
Then the man reappeared as he walked away from the woman, but promptly turned around
and walked back towards the woman, trying to get her to leave.
Approximately ten minutes later, Ms. Bragg and her family saw another white male
holding a shotgun and walking down Nick Road in the same direction the other male and
female had walked. She testified that the armed man was roughly 5′11″ or taller, blondish
hair, thin, and twenty-five or younger. The armed individual cocked the shotgun right in
front of the Braggs’ house. She explained that the streetlights in front of her house were
“really bright” and that she could even see the silver metal and wood on the shotgun.
Ms. Bragg’s husband proceeded to call 911 to report the armed man, but while he was still
on the phone, they heard the gunshots. The shots were fired roughly two minutes after the
armed individual walked past Ms. Bragg’s house.
On June 3, 2017, at 5:30 a.m., the police executed a no-knock search warrant at
Mr. Matthews’s home on Shady Side Road, where he lived with his elderly parents. The
police recovered various items of clothing from throughout the house, a .410 caliber
shotgun from Mr. Matthews’s father’s room, and three items—a twelve-gauge double
barrel shotgun, twelve-gauge shotgun barrel, and twelve-gauge ammunition—from
Mr. Matthews’s room. The shells found at the murder scene indicated that all were fired
from the same weapon, a twelve-gauge shotgun. Forensic analysis revealed, however, that
those shells had not been fired from the shotgun found in Mr. Matthews’s room, which
fired only from one barrel.
9
In the wake of the search, Mr. Matthews was arrested for weapon offenses, but he
was not charged with the murders of Ms. McKenzie and Mr. Smith until much later. After
trial, a jury found Mr. Matthews guilty of two counts each of second-degree murder and
use of a firearm in the commission of a crime of violence, and one count each of possession
of a shotgun after a disqualifying conviction and illegal possession of ammunition. He
noted a timely appeal. We supply additional facts as necessary below.
II. DISCUSSION
Mr. Matthews raises three issues on appeal that we rephrase.2 First, did the court err
in permitting Edward Hicks to testify about an allegedly inconsistent prior statement by
2
Mr. Matthews raised three Questions Presented:
1. Did the circuit court err in permitting Edward Hicks to testify
about an allegedly inconsistent prior statement made by Rico
Hicks?
2. Did the circuit court err in precluding Appellant from
questioning a crucial State witness about his charges that were
resolved pursuant to a plea agreement before Appellant’s trial,
with sentencing postponed until after trial?
3. Did the circuit court err in denying Appellant’s motion to
preclude testimony and a report pertaining to the use of
photogrammetry and reverse photogrammetry projection?
The State rephrased those Questions Presented as:
1. To the extent preserved, did the trial court correctly overrule
the defense objection to impeaching Rico Hicks with a prior
inconsistent statement?
2. Did the trial court soundly exercise its discretion in
controlling the scope of Joseph Tongue’s cross-examination?
3. To the extent preserved, did the trial court correctly deny the
motion to preclude expert testimony concerning the height of
the individual depicted in surveillance footage?
10
Rico Hicks? Second, did the court err in precluding Mr. Matthews from questioning
Mr. Tongue about criminal charges that had been resolved via plea agreement before
Mr. Matthews’s trial? Third, did the court err in denying Mr. Matthews’s motion to
preclude the State’s expert testimony and report using photogrammetry and reverse
photogrammetry projection to identify him?
A. The Trial Court Did Not Err In Overruling The Defense’s
Objection To Impeach A Witness With A Prior Inconsistent
Statement.
Mr. Matthews contends that the trial court violated Maryland Rules 5-6163 and 5-
613 when it admitted extrinsic evidence about an allegedly inconsistent prior oral statement
by Rico Hicks. He argues first that the State did not disclose the contents or circumstances
of the statement adequately; second, that Rico was not given an opportunity to explain or
deny the statement; and, third, that Rico did not deny making the statement, but simply did
not remember. Additionally, Mr. Matthews argues that the State only called Rico as a
3
Md. Rule 5-616 allows prior inconsistent statements and extrinsic evidence of those
statements to come in for impeachment:
(a) Impeachment by Inquiry of the Witness. The credibility
of a witness may be attacked through questions asked of the
witness, including questions that are directed at:
(1) Proving under Rule 5-613 that the witness has made
statements that are inconsistent with the witness’s present
testimony;
***
(b) Extrinsic Impeaching Evidence.
(1) Extrinsic evidence of prior inconsistent statements may be
admitted as provided in Rule 5-613(b).
11
“subterfuge” to admit otherwise inadmissible hearsay as “impeaching” evidence, and thus
ran afoul of Rule 5-613.
In response, the State advances several arguments. First, the State argues that
Mr. Matthews failed to preserve his objection for appellate review because defense counsel
gave specific grounds for objection that do not encompass the broader objections on appeal.
And even if the objection was preserved, the State says, Mr. Matthews abandoned his
objection when his defense counsel came to a “shared understanding” with the court.
Second, the plain language of Rule 5-613(b) does not require the witness to deny
affirmatively making the statement, only that “the witness failed to admit having made the
statement.” Third, the State argues that Mr. Matthews did not preserve his argument that
Mr. Hicks was called as a “subterfuge” to admit inadmissible hearsay. We agree with most
of the State’s arguments.
On October 19, 2019, the fourth day of trial, the State called Rico as its twelfth
witness. Throughout the investigation and grand jury testimony, Rico maintained that he
had not seen the shooting or any individual with a gun the night of the murders. At trial,
Rico testified that he did not see Mr. Matthews the night of May 31st and into the morning
hours of June 1st. On cross-examination the prosecutor asked Rico if he had remembered
telling his uncle Edward a different version of events:
[THE STATE]: Sir, do you remember telling any—telling
other people that you did see more than what you’ve told the
jury here today?
[MR. HICKS]: No, ma’am.
[THE STATE]: Do you know who Edward Hicks is?
[MR. HICKS]: Yeah, m.
12
***
[THE STATE]: Okay. Do you remember telling him anything
about what happened that night?
[MR. HICKS]: No, ma’am.
[THE STATE]: Okay. That’s all I have for him. Thank you.
After Rico stood down, the State pronounced its intention to impeach him by having
Edward testify about a prior, and allegedly inconsistent, oral statement. The defense moved
to preclude the State from impeaching Rico, arguing that he could not be impeached with
an inconsistent prior statement because he had not denied making any particular statement,
but had testified only that he did not remember telling his uncle anything about what
happened. The court, prosecutor, and defense counsel then debated what had been asked
during the testimony:
[DEFENSE COUNSEL]: Your Honor, [Edward] is going to be
my witness and given Rico Hicks’ testimony and the State
indicating that they plan to impeach Mr. Hicks’ testimony,
Rico Hicks that is, with statements previously made to Edward
Hicks, I would make a motion to preclude that. As we have
heard Rico Hicks testify here today that he, in his words, does
not remember speaking to Edward Hicks at all about the night
incident, which I think does not open for the State to impeach
with a prior statement concerning that night. He denied making
statements. He didn’t state that something different than his
testimony here today, which is generally consistent with the
testimony he gave before the grand jury, and consistent with
statements made previously to Ms. Poma as well as to
Detective Carbonaro. So I think given his testimony that he
does not remember, that impeachment with that prior statement
is not proper.
[THE STATE]: Your Honor, the question before I asked, do
you remember telling Edward Hicks, was, did you ever tell
anyone that you saw what happened that night, and he said no.
THE COURT: He did – he did say he didn’t. I wrote down that
he said he didn’t.
13
[DEFENSE COUNSEL]: Right, but when specifically asked
about Mr. Hicks, did not say no, I didn’t speak to him. He said,
I don’t remember telling him anything about that night.
THE COURT: I think, at some point, I remember that he said
he didn’t tell him.
[THE STATE]: I think he did too. But either way, if he said he
never told anyone, I was only trying to give him an opportunity
so that we did not feel that he has an opportunity to handle it
himself. But I agree with Your Honor that I think he laughed
and said, no, I didn’t tell anyone that or I didn’t tell him that.
THE COURT: Do we all agree that he said he didn’t tell
anyone that?
[DEFENSE COUNSEL]: Your Honor, my notes indicate he
was asked, did you tell anyone that you saw more and his
response was no.
THE COURT: Right. So I think that sufficiently – anyone,
certainly, would – I wrote down – and granted, I don’t say write
down word for word that he didn’t say anything to his uncle. I
recall him saying he didn’t tell anyone. It is possible that my
notes aren’t word for word, so I don’t want to suggest that they
are, but I think not telling anyone includes not telling his uncle.
So I think there’s sufficient basis to allow the State to ask,
inquire. So I am going to allow it.
Under Maryland Rule 8-131(a)4, we ordinarily will not decide any issue unless it
appears plainly to be preserved in the record at the trial court. To preserve an argument for
4
Maryland Rule 8-131(a) defines the scope of review as:
(a) Generally. The issues of jurisdiction of the trial court over
the subject matter and, unless waived under Rule 2-322, over a
person may be raised in and decided by the appellate court
whether or not raised in and decided by the trial court.
Ordinarily, the appellate court will not decide any other issue
unless it plainly appears by the record to have been raised in or
decided by the trial court, but the Court may decide such an
issue if necessary or desirable to guide the trial court or to avoid
the expense and delay of another appeal.
14
appeal, a party shall object to the admission of evidence at the time the “evidence is offered
or as soon thereafter as the grounds for objection become apparent. Otherwise, the
objection is waived.” Md. Rule 4-323(a). Similarly, “[a] party must bring his argument to
the attention of the trial court with enough particularity that the court is aware . . . what the
parameters of the issue are.” Harmony v. State, 88 Md. App. 306, 317 (1991). If counsel
provides specific grounds for objection, “the litigant may raise on appeal only those
grounds actually presented to the trial judge.” Anderson v. Litzenberg, 115 Md. App. 549,
569 (1997).
At trial, Mr. Matthews objected to the State impeaching Mr. Hicks with a prior
inconsistent statement based specifically on the argument that Rico did not deny making
the statement, but didn’t remember making one. The State is right, then, that Mr. Matthews
did not preserve the entire argument he seeks to raise here. See Brecker v. State, 304 Md.
36, 39–40 (1985) (“[W]hen an objector sets forth the specific grounds for his objection,
although not requested by the court to do so, the objector will be bound by those grounds
and will ordinarily be deemed to have waived other grounds not specified.”).
That said, we don’t agree that Mr. Matthews abandoned the objection he did make
when the defense came to a “shared understanding” with the court. When objecting to a
trial court’s evidentiary ruling, “it is sufficient that a party, at the time the ruling or order
is made or sought, makes known to the court the action that the party desires the court to
take or the objection to the action of the court.” Md. Rule 4-323(c); see also Marquardt v.
State, 164 Md. App. 95, 143 (2005). In this case, the record reveals a clear intention by
Mr. Matthews’s counsel to object to the admissibility of impeachment evidence against
15
Mr. Hicks. See Smith v. State, 218 Md. App. 689, 702 (2014) (“The broader principle
underlying our preservation decisions focuses on whether the party objecting on appeal
gave the circuit court a proper opportunity to avoid or resolve errors during the trial, not
on hyper-technicalities.”). We don’t read defense counsel’s agreement with the court and
the State about the contents of the colloquy to waive arguments flowing from counsel’s
ultimately correct recollection of Rico’s testimony. Everyone was trying to remember what
happened, the court ruled, and nothing in the colloquy suggests that counsel intended to
waive or abandon the argument they in fact made.
That leaves the question that was raised, i.e., whether Edward’s testimony about
Rico’s prior oral statement—that he allegedly witnessed Mr. Matthews committing the
murders—was admissible as a prior inconsistent statement to impeach Rico when he
testified that he didn’t remember making any statement. Decisions to admit prior
inconsistent statements are legal decisions we review de novo. Brooks v. State, 439 Md.
698, 708–09 (2014). A witness’s prior inconsistent statement is “‘[a] witness’s earlier
statement that conflicts with the witness’s testimony at trial.’” Belton v. State, 152 Md.
App. 623, 632 (2003) (alteration in original) (quoting Black’s Law Dictionary 1212
(7th ed. 1999)). Generally, “prior statements by a witness that are inconsistent with the
witness’s in-court testimony are admissible to impeach the credibility of the witness.”
Stewart v. State, 342 Md. 230, 236 (1996). “Evidence is ‘extrinsic’ when it is ‘proved
through another witness, or by an exhibit not acknowledged or authenticated by the witness
sought to be contradicted.’” Anderson v. State, 220 Md. App. 509, 519 (2014) (quoting
6 Lynn McLain, Maryland Evidence State and Federal § 607:3, at 553 (3d ed. 2013)).
16
Maryland Rule 5-616 permits extrinsic evidence of a prior inconsistent statement
for the purpose of impeachment if Rule 5-613(b) is satisfied. Rule 5-613 looks, among
other things, at whether the witness admits making it:
(a) Examining witness concerning prior statement. A party
examining a witness about a prior written or oral statement
made by the witness need not show it to the witness or disclose
its contents at that time, provided that before the end of the
examination (1) . . . if the statement is oral, the contents of the
statement and the circumstances under which it was made,
including the persons to whom it was made, are disclosed to
the witness and (2) the witness is given an opportunity to
explain or deny it.
(b) Extrinsic evidence of prior inconsistent statement of
witness. Unless the interests of justice otherwise require,
extrinsic evidence of a prior inconsistent statement by a
witness is not admissible under this Rule (1) until the
requirements of section (a) have been met and the witness has
failed to admit having made the statement and (2) unless the
statement concerns a non-collateral matter.
Before a party can offer extrinsic evidence of a prior allegedly inconsistent oral statement
of a witness, (1) the content of the statement and the circumstances under which it was
made must be disclosed to the witness; (2) the witness must be given an opportunity to
explain or deny making the statement; (3) the witness must fail to admit having made the
statement; and (4) the statement must not be collateral to the issues. Brooks, 439 Md. at
717–18.
The objection Mr. Matthews preserved bears on the third element—the witness must
“fail[] to admit having made the statement.” Id. at 718 (quoting Md. Rule 5-613(b)(1)).
Mr. Matthews contends this foundational element is missing because Mr. Hicks “did not
say, no, I didn’t speak to him. He said, I don’t remember telling him anything about that
17
night.” We disagree. The purpose of the foundational requirements “is to accord the witness
the opportunity to reflect upon the prior statement so that he may admit it or deny it, or
make such explanation of it as he considers necessary or desirable.” Devan v. State, 17 Md.
App. 182, 193 (1973). But “[i]f the witness denies making the designated statement or
asserts that he does not remember whether he made it, the foundation contemplated by the
general rule for the introduction of the statement has been satisfied.” McCracken v. State,
150 Md. App. 330, 342–43 (2003) (quoting State v. Kidd, 281 Md. 32, 47 (1977)); see also
Moxley v. State, 205 Md. 507, 516 (1954) (“Impeaching testimony can be offered when the
witness states that she does not remember whether she did or did not make the designated
statement.”). Moreover, the plain language of Rule 5-613(b) does not require an affirmative
denial, but only that the witness “failed to admit having made the statement.” Md. Rule 5-
613(b) (emphasis added).
Here, Mr. Hicks was asked if he recalled telling his uncle Edward that he saw more
about the night in question than what he described in his testimony, and he answered, “No,
ma’am.” The trial court did not abuse its discretion in finding that Rico “failed to admit
having made the statement” for purposes of Rule 5-613(b) when he denied saying anything
at all.
Finally, Mr. Matthews argues that the State only called Mr. Hicks to testify as a
“subterfuge” to admit otherwise inadmissible hearsay as impeaching evidence. The State
asserts again that this argument was not advanced in the trial court, we agree that it wasn’t,
and it is not before us.
18
B. The Circuit Court Did Not Abuse Its Discretion In Limiting The
Defense’s Cross-Examination.
Until roughly two weeks before he testified at Mr. Matthews’s trial, Mr. Tongue had
three criminal cases pending against him, all in Anne Arundel County. Shortly before trial,
Mr. Tongue entered into a plea agreement that encompassed two guilty pleas and caused
the other case to be stetted.
Mr. Tongue’s first case arose from an incident that occurred on May 22, 2017,
before the murders of Linda McKenzie and Leslie Smith. Mr. Tongue was charged in that
case with second-degree assault and reckless endangerment. That case was stetted on
October 5, 2018. His second case stemmed from an incident on November 29, 2017. He
was charged in that case with kidnapping, first and second-degree assault, reckless
endangerment, false imprisonment, theft, and malicious destruction of property less than
one thousand dollars, and he pleaded guilty to reckless endangerment on October 5, 2018,
shortly before Mr. Matthews’s trial. The final case arose from an incident that occurred on
June 6, 2018. Mr. Tongue was charged with home invasion, first- and fourth- degree
burglary, second-degree assault, malicious destruction of property, theft, credit card theft,
and false imprisonment. He pleaded guilty in that case to second-degree assault, also on
October 5, 2018. Under the plea agreement, Mr. Tongue received a combined sentence of
four years of active incarceration with three years of supervised probation, but sentencing
was delayed until after Mr. Matthews’s trial.
At Mr. Matthews’s trial, the defense argued that they should be allowed to cross-
examine Mr. Tongue about (a) all three cases, including the fact that the lead charges in
19
two of the cases were kidnapping and home invasion; (b) the charges to which he pleaded
guilty; (c) the statutory maximums for those charges; (d) the fact that “stet” means a case
can be brought back and set for trial; and (e) how he perceived the terms of his plea
agreement. Counsel noted that his sentencing had been postponed until after the trial and
asserted her good faith belief (based on her own conversation with him) that Mr. Tongue
thought he could “do better” than the agreed-upon amount of time. Finally, the defense
maintained that the issue was not whether there actually was a deal with the State for
Mr. Tongue’s trial testimony, but whether Mr. Tongue perceived that his testimony could
get him a benefit or leniency at sentencing.
The trial court ruled the defense was entitled to cross-examine Mr. Tongue about
the case that preceded his grand jury testimony, which took place on September 22, 2018,
and about the terms of the plea agreement that encompassed all three cases. The court
reasoned that Mr. Tongue could not, at the time of his grand jury testimony, have perceived
he would receive some benefit in connection with future offenses. The court precluded the
defense from eliciting the charges brought against Mr. Tongue in the two cases that arose
after the grand jury testimony and the statutory maximums for the charges to which
Mr. Tongue had pleaded guilty, although the court allowed that if Mr. Tongue’s testimony
was inconsistent with his grand jury testimony to the benefit of the State, the court would
be willing to revisit the issue.
Mr. Tongue turned out to be a rather uncooperative trial witness.5 He testified
5
The prosecutor argued to the jury in rebuttal, “[i]f he’s here lying for the purposes of
gaining a benefit, do you think it would be like pulling teeth to actually get him to
20
repeatedly that he couldn’t remember the night of the murders, and his memory had to be
refreshed on multiple occasions with his own grand jury testimony. Overall, his trial
testimony remained consistent with his grand jury testimony and the court declined to
extend the scope of Mr. Matthews’s cross-examination.
Mr. Tongue testified that on October 5, 2018, he pled guilty to second-degree
assault and reckless endangerment pursuant to a plea agreement that resolved the three
separate cases against him, and his sentencing was postponed until November 16, 2018.
He understood the first case was put on the stet docket, meaning it would not be prosecuted
at this time, but could be prosecuted at a later date. The court permitted defense counsel to
elicit, over the State’s objection, that one of the charges in the case that had been stetted
was second-degree assault, which carried a maximum penalty of ten years. Mr. Tongue
confirmed that the plea agreement called for four years’ active incarceration, but that there
was no agreement as to suspended time or probation and that he hoped to get time served
instead of four years. The defense never asked Mr. Tongue whether he had a subjective
expectation of receiving a benefit as a result of testifying in this case. And on redirect, the
State addressed this point directly—Mr. Tongue denied having any such expectation and
confirmed that he didn’t want to testify against his cousin.
1. A threshold level of inquiry.
Mr. Matthews takes issue with the extent of questioning he was allowed about the
plea agreement and the fact that Mr. Tongue’s sentencing was postponed until after trial.
remember anything or to answer anything?”
21
In particular, he argues he was limited impermissibly in questioning Mr. Tongue about his
subjective expectation of obtaining a benefit in his cases, the charges stemming from his
prior arrests, and the statutory maximum penalties for those charges. The State counters
that Mr. Matthews was given the opportunity to reach the “threshold level of inquiry”
regarding possible bias stemming from a subjective expectation of benefit. We agree with
the State.
The right of a criminal defendant to cross-examine a State’s witness is “essential to
the truth-finding function of a trial.” Peterson v. State, 444 Md. 105, 122 (2015); see also
Martinez v. State, 416 Md. 418, 428 (2010) (“The right of confrontation includes the
opportunity to cross-examine witnesses about matters relating to their biases, interests, or
motives to testify falsely.” (citing Davis v. Alaska, 417 U.S. 308, 316—17 (1974))). This
right is safeguarded by the confrontation clauses contained in both the federal and
Maryland constitutions.6 This tenet also is incorporated in Md. Rule 5-616(a)(4), which
provides that “[t]he credibility of a witness may be attacked through questions asked of the
witness, including questions that are directed at . . . [p]roving that the witness is biased,
prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely.”
Md. Rule 5-616(a)(4).
6
The Sixth Amendment to the United States Constitution, as applied to the states through
the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” Similarly, Article
21 of the Maryland Declaration of Rights provides “[t]hat in all criminal prosecutions,
every man hath a right . . . to be confronted with the witnesses against him; to have process
for his witnesses; [and] to examine the witnesses for and against him on oath.”
22
The court must allow a defendant the opportunity to reach a “threshold level of
inquiry” that “expose[s] to the jury the facts from which jurors, as the sole triers of fact and
credibility, could appropriately draw inferences relating to the reliability of the witness” to
not run afoul of the afforded rights granted by the Confrontation Clause. Martinez, 416
Md. at 428 (first quoting Smallwood v. State, 320 Md. 300, 307 (1990); then quoting Davis,
415 U.S. at 318). So long as the defendant is allowed this “threshold level of inquiry,” the
trial courts retain discretion to limit the scope of questioning to prevent “harassment,
prejudice, confusion of the issues, and inquiry that is repetitive or only marginally
relevant.” Peterson, 444 Md. at 123 (quoting Martinez, 416 Md. at 428). We review
limitations on cross-examination for an abuse of discretion. Id. at 124.
2. The trial court didn’t abuse its discretion.
“Cross-examination is the principal means by which the believability of a witness
and the truth of his testimony are tested.” Davis, 415 U.S. at 316. But the right to cross-
examine isn’t absolute—it guarantees only “an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per
curiam) (emphasis in original). The record in this case reflects that Mr. Matthews was
provided with ample opportunity to elicit from Mr. Tongue information about his pending
charges that relate to his credibility as a witness. Before the jury, Mr. Tongue confirmed
that he understood that he could be subject to prosecution on his stetted second-degree
assault charge, that the maximum sentence on that charge was ten years, that he pled guilty
to second-degree assault and reckless endangerment, that the sentence contemplated by his
23
plea agreement was four years, that his sentencing hearing was postponed to November,
and that he hoped to get as close to time served as possible.
Trial courts have “wide latitude” to impose reasonable limits on cross-examination.
Peterson, 444 Md. at 123 (quoting Smallwood, 320 Md. at 307–08). In this instance, the
trial court grounded its limitations on Mr. Matthews’s questioning to his grand jury
testimony, while allowing for the possibility to revisit the issue if Mr. Tongue strayed from
it:
THE COURT: [T]he reason why I’ve fashioned my ruling in
this manner is that [Mr. Tongue] would have had to have been
able to see in the – into the future, essentially, in order to gain
some benefit regarding future offenses at the time he gave his
Grand Jury testimony. So we’ll see how he testifies. And, if
appropriate, I’m open to revisiting the issue.
The defense maintains that they were prohibited from eliciting Mr. Tongue’s
expectations of a benefit in exchange for information or testimony and from being allowed
to paint the full picture of the charges Mr. Tongue was facing when he entered the plea
agreement. But despite the defense’s claim they it had a “good faith” understanding of
Mr. Tongue’s subjective mindset from their own pre-trial discussions with him, counsel
never asked Mr. Tongue if he had a subjective expectation of a benefit for his testimony.
That opportunity distinguishes this case from Manchame-Guerra v. State, 457 Md. 300,
320–22 (2018) and Calloway v. State, 414 Md. 616 (2010), in which the defendants were
prohibited altogether from making any inquiry as to whether witnesses had a subjective
expectation of benefit in their own criminal cases. See Manchame-Guerra, 457 Md. at 307;
see Calloway, 414 Md. at 632–33.
24
Montague v. State, 244 Md. App. 24 (2019), aff’d on other grounds, 471 Md. 657,
(2020),7 provides a closer analogy. In that case, the defendant asserted that the trial court
had erred by limiting defense counsel from cross-examining a State witness about the
sentence her charges carried and by instructing the jury to disregard her potential seventy-
year sentence (compared to the nine-month sentence she received). 244 Md. App. at 65.
We held that the defense had had sufficient opportunity to ask the witness about her prior
convictions and, in response to the State’s objection to questions about the maximum
sentences, that the court had informed the defense properly that those questions would be
appropriate if she had received a plea bargain in return for her testimony. Id. The defense
counsel declined to show the witness had received any special treatment. Id. at 66.
In this case, the trial court observed “both sides agree that there was no deal in place
here” in exchange for Mr. Tongue’s testimony. On these facts, the trial court afforded
Mr. Matthews reasonable latitude to demonstrate and argue why Mr. Tongue’s testimony
should be viewed with skepticism, and he was given the opportunity to inquire about
Mr. Tongue’s subjective belief. That got Mr. Matthews to a “threshold level of inquiry,”
and we see no abuse of discretion in the trial court’s decision to prevent him from going
farther.
7
The Court of Appeals granted certiorari in Montague solely to consider a different
question—“Is artistic expression, in the form of rap lyrics, that does not have a nexus to
the alleged crime relevant as substantive evidence of a defendant’s guilt?”—and did not
address the proper scope of cross-examination. Montague v. State, 467 Md. 690 (2020).
25
C. The Trial Court Erred In Denying Mr. Matthews’s Motion To
Preclude Testimony And A Report Pertaining To The Use Of
Photogrammetry And Reverse Photogrammetry Projection.
Mr. Matthews filed a motion in limine to preclude the testimony and report of
Kimberly Meline and Jenna Walker, an FBI physical scientist and her trainee, in which
they used photogrammetry and reverse photogrammetry projection to identify the shooter
from contemporaneous videos. He argued that allowing the testimony and report of
Ms. Meline would violate Rules 5-702 and 5-403, the then-prevailing Frye-Reed8 standard,
and the due process and fair trial rights guaranteed by the Sixth and Fourteenth
Amendments of the United States Constitution and Article 24 of the Maryland Declaration
of Rights.
On September 21, 2018, Ms. Meline took the stand at a pre-trial hearing. She
testified that she was a physical scientist with the FBI who had completed dozens of
photogrammetric exams and had testified in court about photogrammetry four or five times.
She clarified that she specializes in multimedia evidence and explained that
photogrammetry involves taking measurements from photographs to determine how fast a
vehicle is moving through a video, the length of a firearm, or how tall a subject is. From
there, she explained that reverse photogrammetry projection is a specific type of
photogrammetry that involves going back to a scene, recreating the image conditions, and
then placing a calibrated measuring device where the subject was standing as a way of
determining how tall the person was. Following a thorough discussion of Ms. Meline’s
8
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Reed v. State, 283 Md. 374 (1978).
26
qualifications, she was admitted as an expert in photogrammetry and reverse
photogrammetry projection.
Ms. Meline testified that she was asked to analyze surveillance video from the Blunt
house to determine whether she could find an image that would be conducive to an accurate
photogrammetric analysis for the case against Mr. Matthews. She and her trainee
concluded that there was one still image “that would be within a reasonable margin of
error” to complete the analysis. On November 28, 2017, Ms. Meline and Ms. Walker
traveled to the Blunt house and used the same surveillance cameras that had captured the
“questioned image.” They ensured the camera was still in the same position, overlaid the
live video with the questioned image using software, aligned the stationary items such as
trees in both images, and placed a height chart in the location where the suspect appeared
to be standing in the questioned image. To simplify, she explained that the overlay between
the questioned image and the image with the height chart was used to estimate how tall the
suspect was.
Next, Ms. Meline detailed her process for estimating the uncertainty or error
associated with the height measurements. She explained that the margin of error is
calculated by using positional accuracy and the resolution of the imagery. Positional
accuracy is determined by pixels in the image; in this case, each pixel of the questioned
image represented 0.53 inches, so if they were off by one pixel in placing the height chart,
the height estimate would be off by 0.53 inches. Ms. Meline estimated the suspect’s height
as 5′8″, with a margin of error of plus or minus 0.67 of an inch.
Additionally, Ms. Meline explained that along with the 0.67 inch margin of error,
27
termed as “calculated uncertainty,” there was “incalculable uncertainty” based on factors
such as the quality of the image (it was taken at night), the unevenness of the terrain, the
body position of the individual, the inability to see his feet, and the head covering the
individual was wearing. She expressed concern about this particular examination because
the subject was standing a “considerable distance” from the camera, felt obligated to
“qualify” her results because the uneven terrain would make a difference in whether the
camera lens height was actually at the position of the suspect, and noted that “because the
terrain was somewhat uneven it wasn’t able to be completely, accurately collected.”
Finally, she admitted that she had concerns about the “stature of the individual.” When
performing this kind of analysis, she looks for an image “in which the individual is at as
near full stature as possible,” i.e., visible from head to toe and at the full height of their
stride. She testified that she chose the best image she could, where the suspect was “as near
full height as possible,” but confessed “there was some concern about that.” She specified
that she “d[idn’t] have a scientific way of quantifying how these dimensions had an effect
on my measurement,” and agreed that the degree of uncertainty could be “significantly
greater” than 0.67 inches and ultimately could not be quantified.
In closing, the defense argued that that the photogrammetry evidence should be
precluded because it was improper to tell the jury that the FBI had estimated a suspect
height of 5′8″ when there were so many variables not included in the calculation. As a
result, the defense argued, the evidence was significantly more prejudicial than probative,
Rule 5-403, because the jury would be misled into thinking the number was more accurate
than it was; that there was an insufficient factual basis to support the height estimate as
28
required by Rule 5-702; and that it was inadmissible under Frye-Reed because, while
photogrammetry can be reliable, in these circumstances there was an analytical gap
between the methodology and the conclusion. The State responded that the incalculable
uncertainty could be pointed out on cross-examination and disagreed that any analytical
gap existed.
Ultimately, the court denied the motion. The court ruled that the evidence was not
unfairly prejudicial under Rule 5-403 because it had probative value, that the report’s
conclusion was qualified by the statement about the unquantifiable uncertainty, and the
unquantifiable uncertainty could be showcased on cross-examination. Under Rule 5-702,
the court ruled that the evidence was admissible because the expert was qualified, her
testimony was appropriate to her particular subject of expertise, and “there was a sufficient
factual basis to support the opinion she will express.” Finally, the court acknowledged that
Mr. Matthews was also challenging admission of the evidence “under the second prong of
Frye-Reed,” but denied the motion without making explicit findings.
On appeal, Mr. Matthews contends the evidence was inadmissible under Rule 5-
702, Rule 5-403, and the Frye-Reed standard. The State disputes that Mr. Matthews
preserved his Frye-Reed argument because the trial court failed to make a particular ruling
on the theory. To the extent preserved, the State argues that no analytical gap exists.
Additionally, the State characterizes Mr. Matthews’s 5-702 argument as “unavailing” and
urges us to find no abuse of discretion as the admission of the evidence at issue would have
been harmless. We disagree.
29
1. Preservation, Frye-Reed, and Md. Rule 5-702
The State contends that Mr. Matthews’s argument that the expert’s conclusion as
stated in the report should have been excluded due to an “analytic gap” is not properly
before us because the trial court did not make findings or a ruling on this particular theory
when it denied the pre-trial motion. But the issue isn’t whether the trial court ruled—what
matters is whether Mr. Matthews brought “his argument to the attention of the trial court
with enough particularity that the court is aware . . . what the parameters of the issue are.”
Harmony v. State, 88 Md. App. 306, 317 (1991). He did.
At the time this case was in the trial court, the Frye-Reed standard still governed
“the admissibility of scientific evidence and expert scientific testimony.” Montgomery Mut.
Ins. Co. v. Chesson, 399 Md. 314, 327 (2007) (citing Reed, 283 Md. at 389). The Frye-
Reed standard worked in tandem with Md. Rule 5-702, which governs the admission of
expert testimony generally:
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.
Md. Rule 5-702.
In the time since, the Court of Appeals rejected the Frye-Reed standard in favor of
the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993). See Rochkind v. Stevenson, 471 Md. 1 (2020). Because this case was pending on
30
direct appeal at the time Rochkind was decided, and because we already have found the
question preserved, the new standard applies to this case. Id. at 39. That said, Rule 5-702
remains the primary analytical rubric—the standard contributes to the application of the
Rule, not the other way around. As Rochkind itself directs, “[a]dopting Daubert eliminates
the duplicative analysis [of the reliability of the expert’s methodology] and permits trial
courts to evaluate all expert testimony—scientific or otherwise—under Rule 5-702.” Id. at
35 (emphasis in original).
The primary analytical difference between the two standards here—the elimination
of Frye-Reed’s focus on the acceptance of the methodology in the scientific community
versus Daubert’s look at the overall reliability of the testimony—doesn’t shift the analysis
in this case in any seismic way.9 That’s true primarily because Mr. Matthews does not
challenge Ms. Meline’s expert qualifications or the general scientific possibility that
reverse photogrammetry projection may be used to obtain the individual’s height. Instead,
Mr. Matthews’s arguments focus on the third prong of Rule 5-702, and specifically on the
trial court’s finding that “a sufficient factual basis exists to support the expert testimony.”
That is still a reliability question, but it turns on the application of this universe of facts to
the established method rather than on questions about the reliability of the method itself.
We review the ultimate evidentiary decision for abuse of discretion. Exxon Mobil Corp. v.
Ford, 204 Md. App. 1, 30, 40 (2012), aff’d in part, rev’d in part, 433 Md. 426 (2013).
9
At our invitation, the parties filed supplemental briefs on the question of whether
Rochkind v. Stevenson affected their positions in the case. At the risk of oversimplifying,
both sides argued in essence that Rochkind supported and enhanced their earlier view of
the case.
31
The analysis of Rule 5-702(3) “consists of two distinct sub-factors. It is first
required that the expert have available an adequate supply of data with which to work. It is
then required that the expert employ a reliable methodology in analyzing that data.”
CSX Transp., Inc. v. Miller, 159 Md. App. 123, 189 (2004). Moreover, “‘[f]or expert
testimony to be admissible, his or her conclusions must be based on a sound reasoning
process explaining how the expert arrived at those conclusions.’” Roy v. Dackman, 445
Md. 23, 43, (2015) (quoting Exxon Mobil Corp., 433 Md. at 483). An expert witness’s
testimony is expected to “‘give the jury assistance in solving a problem for which their
equipment of average knowledge is inadequate.” Radman v. Harold, 279 Md. 167, 169
(1977) (quoting Casualty Ins. Co. v. Messenger, 181 Md. 295, 298–99 (1943)). But
“[w]here the trial judge has admitted the testimony, the appellant must convince the
appellate court that, as a matter of law, the expert’s methodology ‘was not even arguably
reliable and that any judge who could even think otherwise would be guilty, ipso facto, of
an abuse of discretion.’” Exxon Mobil Corp., 204 Md. App. at 30 (quoting CSX Transp.,
Inc., 159 Md. App. at 208).
The purpose of this expert testimony was to measure the height of the person in the
video as a way of narrowing down the identity of the shooter. The height mattered:
Ms. Bragg testified that the man she saw walking past her house with a gun was 5′11″ or
taller, white, and in his mid-20s; Mr. Matthews is African-American and was 5′8″, and the
contemporaneous videos weren’t clear enough to allow a distinction even between these
two possible suspects. Ms. Meline concluded that the person in the video was 5′8″ with a
“calculable uncertainty” of 0.67 inches, which would seem to eliminate a taller white man
32
as the shooter. But without shrinking from her estimate, she undermined her calculation by
acknowledging that there was no scientific way to calculate the actual uncertainty, and that
the margin of error could be significantly greater due to the “far from pristine”
circumstances of this case. When first confronted with the Blunt surveillance video, she
opined that the poor resolution of the footage and the distance of the suspect from the
camera would lead to a margin of error that would likely be plus or minus three inches. But
even after she refined her initial estimation, Ms. Meline admitted that she was unable to
see the individual’s feet, that the individual was wearing a head covering, and that there
was “concern” about the subject not being at “full height” in the video she was measuring.
Under these circumstances, the missing input variables that had not been considered
in the seemingly precise height calculation prevented a reliably accurate height calculation.
Put another way, the analytical gap between the data available for reverse photogrammetry
projections and the conclusion Ms. Meline offered to the jury remained unbridged.
Although Mr. Matthews was able to challenge Ms. Meline’s conclusions by cross-
examining her about the missing pieces, it should not have fallen to the jury to work
through the science on its own. And the unreliability of the height estimate resulting from
this expert testimony raises serious doubt about whether the probativity of allowing it in
outweighed the danger of unfair prejudice, especially where the video itself was
unilluminating and the remaining testimony so equivocal. Md. Rule 5-403; State v. Simms,
420 Md. 705, 724 (2011).
We hold that the trial court should have excluded Ms. Meline from testifying, on
this record, to a specific height estimate, and that the error in allowing that testimony wasn’t
33
harmless. This holding requires us to reverse Mr. Matthews’s convictions and remand for
further proceedings consistent with this opinion.
JUDGMENTS OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
REVERSED AND CASE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. ANNE ARUNDEL
COUNTY TO PAY THE COSTS.
34