Matthews v. State

246 A.3d 644, 249 Md. App. 509

• Court: Court of Special Appeals of Maryland
• Decided: February 25, 2021
• Docket: 3280/18
• Status: Published

Opinion

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.