Argued October 3, 2013.
Certiorari to the Court of Special Appeals (Circuit Court for Baltimore County, Maryland. Case No. K-93-530), Kathleen Gallogly Cox, JUDGE.
ARGUED BY Edwin J. Kilpela, Jr., Assigned Public Defender (Del Sole Cavanaugh Stroyd. LLC of Pittsburgh, PA Robert M. Cary, Assigned Public Defender, Williams & Connolly, LLP of Washington DC) on brief FOR PETITIONER/CROSS- RESPONDENT.
ARGUED BY Mary Ann Ince, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland of Baltimore, MD) on brief FOR RESPONDENT/CROSS PETITIONER.
ARGUED BEFORE: Harrell, Battaglia, Greene, Adkins, McDonald, Eldridge, John C. (Retired, Specially Assigned), Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ. Opinion by Battaglia, J. Harrell, McDonald, and Rodowsky, JJ., dissent.
[440 Md. 36] Battaglia, J.
The Petitioner, James Kulbicki, was convicted in 1995 of first-degree murder and the use of a firearm in the commission of a felony in the Circuit Court for Baltimore
County, based, in part, on the testimony of Agent Ernest Peele of the Federal Bureau of Investigation. Agent Peele testified that a bullet fragment found in Kulbicki's truck and a bullet found inside the victim were " what you'd expect if you were examining two pieces of the same bullet," and moreover, that a bullet recovered from a handgun found in Kulbicki's home " could have been in the same box" as the bullet taken from the victim, relying on Comparative Bullet Lead Analysis (" CBLA" ). We determined, however, in 2006 that under the [440 Md. 37] Frye-Reed standard, CBLA evidence was not generally accepted by the scientific community. Clemons v. State, 392 Md. 339, 896 A.2d 1059 (2006). One of the major flaws of CBLA, we observed in Clemons, was that it had been predicated on the assumption that each source of lead from which bullets were derived was unique, allowing bullets that come from different batches to be distinguished from one another, an assumption that we determined to be questionable; " The assumption that each molten lead source is unique is also being questioned by analytical chemists and metallurgists." Id. at 369, 896 A.2d at 1077.
Kulbicki was convicted before Clemons was decided. Nevertheless, within a few years of his conviction, he sought post-conviction [440 Md. 38] relief under the Uniform Postconviction Procedure Act, arguing not
only that the admission of " unreliable" CBLA evidence was a due process violation, but that his attorneys rendered ineffective assistance of counsel for failing to adequately cross-examine Agent Peele. The Circuit Court Judge denied relief, opining with respect to Kulbicki's ineffective assistance of counsel claim that " questions concerning the reliability of that science didn't even surface until long after [440 Md. 39] Mr. Kulbicki's trial", and therefore, Kulbicki's attorneys could not be faulted for not challenging the CBLA evidence:
With CBLA, ineffective assistance is not a legitimate argument. The questions concerning the reliability of that science didn't even surface until long after Mr. Kulbicki's trial. The reputation for reliability of the FBI laboratories, which performed the analysis in this case, was well known and there is no evidence in this record to demonstrate they could have been effectively challenged at trial. And the undisputed evidence was that no private laboratories routinely performed this service at that time. Thus counsel was faced with the unquestioned expert in this field, which was generally accepted as competent evidence at the time of trial. That expert was appropriately cross-examined. Counsel cannot reasonably be faulted concerning their approach to CBLA evidence at the time of trial.
The Court of Special Appeals affirmed in a reported opinion, without addressing Kulbicki's ineffective assistance of counsel claim as it related to Kulbicki's attorneys' exploration of CBLA evidence. Kulbicki v. State, 207 Md.App. 412, 450-53, 53 A.3d 361, 383-85 (2012). We granted certiorari to consider the following questions, which we have renumbered:
1. Does the failure of defense counsel to investigate or challenge the State's scientific evidence and failure to object to improper closing arguments suggesting guilt constitute ineffective assistance of counsel?
2. Does a conviction obtained through the use of scientific evidence that is later demonstrated to be unreliable, misleading, and inadmissible violate a defendant's guarantee of due process?
3. Does the use of perjured expert testimony by a State expert violate a defendant's due process rights when the perjured testimony involves the expert's qualifications and background?
[440 Md. 40] Kulbicki v. State, 430 Md. 344, 61 A.3d 18 (2013). We also granted the State's conditional cross-petition to address the following question:
Did the Court of Special Appeals err in stating that the State is chargeable with the " knowing use of perjured testimony" where the falsity is unknown at the time of the testimony?
Kulbicki did not argue that his attorneys were ineffective for failing to challenge the State's CBLA evidence before the Court of Special Appeals and the intermediate appellate court did not address the issue. Ineffective assistance of counsel with respect to the CBLA evidence, moreover, was not addressed in Kulbicki's brief before us; during oral argument, however, after the State argued that the admission of CBLA evidence was not a due process violation because Kulbicki's attorneys should have been able to test the flawed assumptions upon which CBLA was based at trial, questions were raised by the Court regarding ineffectiveness of counsel.
We shall hold that Kulbicki's attorneys rendered ineffective assistance when they failed to investigate and cross-examine the State's CBLA expert, Agent Ernest Peele, based upon a report he co-authored in 1991, which presaged the flaws in CBLA evidence, and therefore, will reverse Kulbicki's conviction and order a new trial.
[440 Md. 41] The present case began when, during the course of a homicide investigation by the Baltimore County Police Department, a bullet was recovered from the victim's body. Thereafter, two bullet fragments were recovered from Kulbicki's vehicle in addition to six bullets taken from a handgun found in Kulbicki's home. The bullets were then analyzed by the FBI laboratory and the results were interpreted by Agent Ernest Peele, who testified for the State at Kulbicki's trial.
Agent Peele testified that the CBLA process permitted him to analyze the chemical composition of the lead contained within bullets and, using the chemical
composition numbers, determine if the composition in the bullets were the same or substantially similar to each other. Based on the compositional similarities of the bullets he tested, Agent Peele drew a number of conclusions that purported to connect Kulbicki to the homicide.
Agent Peele testified, first, that a bullet fragment taken from the victim's autopsy, designated " Q-1", and one of the bullet fragments taken from Kulbicki's truck, " Q-2", were " what you'd expect if you were examining two pieces of the same bullet" :
[STATE'S ATTORNEY]: [W]hat conclusion did you draw, if any, when comparing Q-1 and Q-2, those two bullet fragments?
[AGENT PEELE]: Well, Q-1 and Q-2 have the same amounts of each and every element that we detected. To the extent that that's what you'd expect if you were examining two pieces of the same bullet, they are that close, two pieces of the same source.
[440 Md. 42] [STATE'S ATTORNEY]: Uhm, I think in looking at your report you used the term analytically indistinguishable.
[AGENT PEELE]: Yes, sir. That's a term basically meaning we can see each and every element. We can see the same quantity of each and every element in two different pieces such that if we were to drop those pieces, all of the samples from each one of, each of Q-1 and Q-2 on the floor and, we would not be able to put them back into their respective sample they are that close together in composition.
Agent Peele then compared Q-6, one of the bullets recovered from the handgun, and the samples taken from the victim and Kulbicki's truck, stating that, compositionally, they were " extremely" and " unusually close" so that " there's some association" between the bullets:
[STATE'S ATTORNEY]: And what conclusions, if any, did you draw in comparing the compositional analysis or the composition of Q-6 in comparison to Q-1 and Q-2, which are the bullet fragments?
[AGENT PEELE]: Well, Q-6 is measurably different from Q-1 and Q-2 such that in the analytical process you can physically see that not all the elements have exactly the same composition. However, Q-6 is extremely close to Q-1 and Q-2. It is unusually close in that that's not what you'd expect, unless there's some association between the two groups.
In other words, Q-1 and Q-6, the amount of copper is slightly different and the amount of arsenic is slightly different. All the other elements are the same and, certainly, those are types of things that you wouldn't expect to occur unless there's some association, such as being made by the same manufacturer on or about the same time, that kind of association. They are close enough that I have seen those differences, even in the same larger piece but, certainly, they are also different enough that I can't really include uhm [sic] as well as I would Q-1 and 2 to each other.
[440 Md. 43] During re-direct, Agent Peele explained that, although it was not conclusive, the closeness in composition of the three bullets--the autopsy fragment, the truck fragment, and one of the bullets found in the handgun--was consistent with having originated from the same box of bullets, because in each box, he asserted, you would expect to find a number of distinct chemical compositions:
[STATE'S ATTORNEY]: [Y]our opinion was that as to Q-6, it's that one bullet, when compared to fragments, I
think your term was unusually close, extremely close in composition?
[AGENT PEELE]: Yes, sir.
* * *
[STATE'S ATTORNEY]: [W]ould you expect to see differences in the composition of bullets from the same box, or are all bullets from the same box exactly the same?
[AGENT PEELE]: Certainly not.
[STATE'S ATTORNEY]: Okay. Just explain that. I think you already answered. Just explain about the bullets in a box, how they can be different and you would expect them to be different.
[AGENT PEELE]: Yes, sir. Even in one box of ammunition, a box of 50 rounds of ammunition, the bullets in that box don't all have the same composition. Normally even in one box you'll have groups. For instance, 25 of the bullets may have the same composition such that it would have the same, that group would have the same amounts of each and every element measured. Another group would have a different composition - - by different, something that was measurably different in one or more elements. Maybe all of the elements could be slightly different which would constitute, then, a second group.
This group, again, would have a number of bullets in it or it could have a number of bullets in it all the way from one up to - - if the box only had two compositions and the first one had 25, this one would then have 25, as well. But, normally, there are several compositions in a box. Around [440 Md. 44] five. Especially in Remington ammo, there are fi-, normally five compositions even in one box, and those compositions differ from each other by varying amounts. The differences that I see, even in one box, certainly are no more than the differences that I see right here. So all these bullets at one time could have been in the same box. I'm not saying they were because they are different. And those ...