Circuit Court for Frederick County Case No.: 10-K-16-057851
Berger, Leahy, Battaglia, Lynne, A. (Senior Judge, Specially
Assigned), JJ.
OPINION
BATTAGLIA, J.
On
October 2, 1996, the victim, then a 15-year old girl, was
reported missing by her mother. Over two months later, her
body was discovered in a wooded area of Frederick, Maryland.
Prior to the discovery of the victim's body, appellant,
Lloyd Harris, had resided at a "campsite" nearby in
the wooded area, and, during the course of the investigation
into the victim's death, became the primary suspect. The
investigation largely concluded in 2000.
On
January 22, 2016, a grand jury indicted Harris of
first-degree murder, first-degree rape and third-degree sex
offense, charges for which he was convicted by a jury sitting
in the Circuit Court for Frederick County. The trial judge
sentenced Harris to life in prison for the murder and rape
convictions, which were to run concurrently, and merged, for
sentencing purposes, the sex offense conviction. The issues
in this case involve an alternative suspect, pre-indictment
delay and expert testimony, as queued up by Harris in the
following questions, which we have renumbered:
1. Did the trial court err when it granted the State's
motion to exclude defense evidence regarding an alternate
suspect?
2. Did the trial court err when it denied Mr. Harris's
motion to dismiss due to pre-indictment delay?
3. Did the trial court err when it denied Mr. Harris's
motion to exclude the testimony of the State's expert
regarding acid phosphatase and "time since
intercourse" on Frye-Reed grounds?
For the
reasons set forth below, we shall answer Harris's
questions in the negative and shall affirm the judgment of
the Circuit Court.
ALTERNATIVE
SUSPECT
Before
trial, the State filed a motion in limine to exclude
evidence related to individuals who Harris contended were
alternative suspects in the case. One of those individuals
was Elmer Spencer, who had been convicted of first-degree
assault in connection with an attempted rape which took place
in Frederick, Maryland on October 9, 1996, days after the
victim went missing. Harris had informed the State that he
intended to introduce evidence related to Spencer's
assault conviction to bolster the theory that Spencer was an
alternative suspect:
• Call Michael Hansell to testify about his arrest of
Elmer Spencer on October 9, 1996;
• Call the woman, who was assaulted, to testify that
Elmer Spencer had attacked her on October 9,
1996[1];
• Introduce the police report in State v. Elmer Spencer,
Frederick County Circuit Court Case No. K-96-021289;
• Introduce a Frederick News-Post article dated December
28, 2000 regarding Elmer Spencer as a potential suspect in
the rape and murder of the victim; and,
• Introduce a true test copy of Circuit Court Case
K-96-021289, State v. Elmer Spencer.
The
trial judge subsequently held a hearing on the issue and
orally granted the State's motion to exclude, but
reserved Harris's ability to cross-examine the
State's witnesses about information regarding potential
suspects that was developed during the course of the
investigation. The State, then, would be able to introduce
evidence as to why those suspects had been excluded as
potential suspects.
During
trial, before the testimony of Candace Mercer, a childhood
friend of the victim, the State again orally moved to exclude
testimony from Ms. Mercer regarding her having allegedly seen
the victim and Spencer together shortly before her
disappearance. Harris proffered that Ms. Mercer, when
interviewed in either late 2016 or early 2017 by defense
counsel, indicated that she may have seen Spencer in the
victim's "neighborhood right around the time she
disappeared." The State disagreed, contending that Ms.
Mercer informed prosecutors that she "had no idea"
when she had seen the victim with Spencer.
Both
defense counsel and the prosecutor, however, also informed
the trial judge that Ms. Mercer had never mentioned Spencer
to the police during the initial investigation, proffering a
two-page police report of her interview conducted in 1996 in
which no mention was made of Spencer. The trial judge granted
the State's motion to exclude the testimony, reasoning
that, because Ms. Mercer never told anyone that she had seen
the victim and Spencer together in October 1996, a statement
elicited twenty-one years later was "too far
removed":
The first time that [Spencer] comes up is 21 years
afterwards. She says, yes, she thinks she saw him about that
time, and now she's expected to testify that she
doesn't. I think it's too far removed. If there was
any mention whatsoever [sic] in the report of Mr. Spencer
back at that time, I may have let her testify to that;
there's not.
Furthermore,
the State also sought to exclude testimony from Thomas Chase,
the former head of the Criminal Investigation Division of the
Frederick City Police Department, recounting the statement he
made to a local newspaper in which he said that
Spencer could not be ruled out as a suspect in the rape and
murder of the victim.[2] The trial judge denied the State's
motion, and Mr. Chase later read his statement to the jury.
Mr. Chase, however, testified that he did not believe Spencer
to ever be a suspect, and that if he had "not
gotten" the call from the reporter, he
"wouldn't have thought of Spencer" as a
suspect; his goal was merely to provide "[t]ruthful
information."
Harris
contends that the evidence regarding Elmer Spencer "was
not speculative or remote" because it tended to
demonstrate that Spencer raped and murdered the victim, and
as such, the trial court committed reversible error when it
granted the State's motion in
limine.[3] Harris avers that the evidence related to
Spencer did more than "cast a bare suspicion" of
his culpability because the acts underlying Spencer's
assault conviction were similar to the acts underlying the
charges with which Harris had faced, both incidents occurred
in Frederick around the same time and Spencer had an
opportunity to commit the crime because he was not
incarcerated at the time of the victim's disappearance.
The
State, conversely, argues that the trial court did not abuse
its discretion in excluding the evidence regarding Spencer
because the evidence was irrelevant as it "supported
only a conjectural inference that Spencer committed the crime
for which Harris was on trial, and even if minimally
relevant, its significant potential for unfair prejudice
warranted exclusion under Maryland Rule 5-403."
"Although
the right of a defendant in a criminal trial to present
witnesses in his defense is a critical right, it is not
absolute." Taneja v. State, 231 Md.App. 1, 10
(2016), cert. denied, 452 Md. 549 (2017) (citing
Taylor v. Illinois, 484 U.S. 400, 407-10, 108 S.Ct.
646, 98 L.Ed.2d 798 (1988)). The accused may not offer
testimony that is "incompetent, privileged, or otherwise
inadmissible under standard rules of evidence."
Id. (quoting Taylor, 484 U.S. at 410, 108
S.Ct. 646, 98 L.Ed.2d 798). The admissibility of
"evidence that someone other than the defendant
committed other crimes or bad acts," Allen v.
State, 440 Md. 643, 664 (2014) (internal citation
omitted), is "subject, however, to two paramount rules
of evidence, embodied both in case law and in Maryland Rules
5-402 and 5-403," Smith v. State, 371 Md. 496,
504 (2002); Muhammad v. State, 177 Md.App. 188, 274
(2007).
"Relevant
evidence" is evidence "having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." Md. Rule 5-401.
"[A]n item of evidence can be relevant only when,
through proper analysis and reasoning, it is related
logically to a matter at issue in the case, i.e.,
one that is properly provable in the case."
Taneja, 231 Md.App. at 11 (emphasis in original)
(quoting Snyder v. State, 361 Md. 580, 591 (2000)).
Relevant evidence is admissible, while evidence that is not
relevant is not admissible. Md. Rule 5-402. Although
relevant, a trial judge may exclude evidence "if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Md. Rule
5-403.
To
establish the evidentiary relevance of crimes committed by
another, a defendant "must show that 'the proffered
evidence exculpates the defendant or gives credence to the
theory that someone else other than the defendant committed
the crime.'" Allen, 440 Md. at 665 n.16
(citing Moore v. State, 154 Md.App. 578, 603-04
(2004), aff'd, 390 Md. 343 (2005)). If relevant,
the proffered evidence must also, then, pass the Rule 5-403
balancing test-"that is, its probative value must not be
outweighed by the danger of unfair prejudice."
Id. at 665. An accused may "introduce any legal
evidence tending to prove that another person may have
committed the crime with which the defendant is
charged," but, such evidence "may be excluded where
it does not sufficiently connect the other person to the
crime, as, for example, where the evidence is speculative or
remote, or does not tend to prove or disprove a material fact
in issue at the defendant's trial." Holmes v.
South Carolina, 547 U.S. 319, 327, 126 S.Ct. 1727, 164
L.Ed.2d 503 (2006) (quoting 40A Am. Jur.2d, Homicide §
286, pp. 136-38 (1999)); see also Taneja, 231
Md.App. at 10-11. We review a trial court's decision to
exclude evidence of another's prior bad acts for an abuse
of discretion. Moore v. State, 390 Md. 343, 384
(2005).
In
Allen v. State, supra, 440 Md. at 676-77,
the Court of Appeals held that a defendant's
constitutional right to present a fair defense at trial had
not been violated when the trial judge excluded evidence
regarding an alternative suspect which included the
suspect's DNA being found at the scene of the crime for
which Allen had been charged, as well as the suspect's
recent guilty plea to a similar "home invasion drug-rip
style robbery" committed in the same county. The Court
agreed with this Court when we held that the prejudicial
effect of the DNA evidence and the alternative suspect's
recent conviction of an allegedly-similar crime outweighed
any slight probative value regarding the alternative
suspect's alleged involvement in the crimes for which the
defendant was on trial. Id. at 665. According to the
Court, admission of the DNA evidence would have resulted in a
mini-trial, because the State would have used gang evidence
and evidence of robbery kits to rebut the inference that the
alternative suspect had committed the robbery and assaults at
issue, which would have misled and confused the jury, running
afoul of Rule 5-403. Id.
In
Taneja v. State, supra, 231 Md.App. 1, we
held that the trial judge properly exercised his discretion
in excluding evidence, which Taneja sought to introduce, that
another individual murdered the victim. At trial, Taneja
sought to insinuate that his wife's son had committed the
murder for which he had been charged by questioning the son
about:
the replevin lawsuit he brought against [the victim] in 2010,
a statement he made about her around that time that
"someone should kill that b[itch]"; living in the
area where [the victim] was murdered; being familiar with
weapons; selling Taneja's Germantown home after he was
given power of attorney following Taneja's arrest; and a
statement he made to Taneja in late 2011 or early 2012 that
Taneja should go to a shooting range.
Id. at 18. The trial judge excluded the proffered
testimony on the ground that it would not "make more
probative the defense in this case, that [Taneja] was not
directly involved in" the criminal activity for which he
was being prosecuted. Id. at 16-17.
In
affirming the decision of the circuit court, we agreed that
the proffered testimony "would have been, at best, only
tangentially relevant and had a high probability of
confusing, distracting, and misleading the jury."
Id. at 18. We concluded that the evidence Taneja
sought to introduce was "disconnected and remote"
with "no other effect than to raise the barest of
suspicion" that Taneja's stepson might have murdered
the victim. Id.
In the
instant matter, the evidence regarding Spencer, specifically
the testimony of the officer who arrested him, the police
report resulting from the investigation into Spencer's
assault charge, the news article identifying Spencer as a
potential suspect, and a true test copy of his circuit court
case did not give "credence to the theory that someone
else other than [Harris] committed the crime."
Allen, 440 Md. at 665 n.16.
The
judge also properly precluded Ms. Mercer from testifying at
trial that she may have seen Spencer and the victim together
around the time of the disappearance, which she had not
reported in 1996. The judge, however, had permitted Harris to
raise the issue of an alternative suspect by questioning law
enforcement witnesses about other potential suspects in the
case. The trial judge's decisions were based on a sound
use of his discretion.
PRE-INDICTMENT
DELAY
Harris
next challenges the twenty-year delay between the discovery
of the victim's body and his indictment, contending that
his due process rights were violated by the State.
Prior
to trial, Harris filed a Motion to Dismiss Due to
Pre-Indictment Delay. During the hearing on the matter,
Harris argued that he had been prejudiced by the delay,
because certain witnesses were no longer available to testify
and items of evidence allegedly no longer existed:
• James Sexton, deceased, "was a reasonable suspect
in the investigation, and [investigators] also took his DNA
for comparison against the victim, and things like that. . .
. [T]here's information that he had contact with my
client, and talked to him, and told him he was going to take
portions of his camp, which is where the body was
recovered";
• Rose Lanzetta, deceased, a forensic analyst who
"analyzed the blanket that was found covering the body
in this case. In her review of the blanket, she discovered
hairs, and she reviewed those hairs and compared them . . . .
The hairs were not a match with Mr. Harris. . . . [H]er
testimony or her lack thereof her testimony is, there's
an impossibility of us to present that exculpatory
information to the jury because she is no longer able to be a
witness";
• Corinne Winters, currently residing in London, and a
friend of the victim, told detectives that she had seen the
victim the day after she disappeared;
• Jamie Hurst, also purportedly saw the victim after she
disappeared, but who defense counsel added, "I don't
know if she's available or not";
• "[L]ost or destroyed" recordings of police
interviews, including "at least one of Mr. Harris's
interview and then one of, one interview of [the
victim's] brother," about which defense counsel
proffered, "I would imagine there are others"; and,
• A "body wire recording during another interview
of Mr. Harris; that there was video surveillance of Mr.
Harris during one of the interviews in 1998. And none of
those are in existence." Defense counsel asserted,
"[w]e've asked for them and I believe the State has
looked for them, but regardless, they're no longer in
existence. They don't possess them."
Defense
counsel continued to explain the significance of the missing
material:
Rest assured, Your Honor, I believe if there was, if it was,
you know, helpful to them, they would have it. But they, you
know, I mean, there's a memorialization of what [Harris]
said, that I would say the negative things ...