Harris v. State

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[Copyrighted Material Omitted]

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          Circuit Court for Frederick County, Case No.: 10-K-16-057851, William R. Nicklas, Jr., Judge.

         Submitted by: Allison Pierce Brasseaux (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

         Submitted by: Todd W. Hesel (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee.

         Panel: Berger, Leahy, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

         OPINION

         Battaglia, J.

         [242 Md.App. 660] 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

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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.

         [242 Md.App. 661] 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 [242 Md.App. 662] 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

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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 [242 Md.App. 663] 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, 149 A.3d 762 (2016), cert. denied, 452 Md. 549, 157 A.3d 822 (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

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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 [242 Md.App. 664] other crimes or bad acts," Allen v. State, 440 Md. 643, 664, 103 A.3d 700 (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, 810 A.2d 449 (2002); Muhammad v. State, 177 Md.App. 188, 274, 934 A.2d 1059 (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, 149 A.3d 762 (emphasis in original) (quoting Snyder v. State, 361 Md. 580, 591, 762 A.2d 125 (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, 103 A.3d 700 (citing Moore v. State, 154 Md.App. 578, 603-04, 841 A.2d 31 (2004), aff’d, 390 Md. 343, 889 A.2d 325 (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, 103 A.3d 700. 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 [242 Md.App. 665] 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, 149 A.3d 762. 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, 889 A.2d 325 (2005).

         In Allen v. State, supra, 440 Md. at 676-77, 103 A.3d 700, 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, 103 A.3d 700. According to the Court, admission

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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, 149 A.3d 762, 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 [242 Md.App. 666] [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, 149 A.3d 762. 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, 149 A.3d 762.

         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, 149 A.3d 762. 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, 103 A.3d 700.

         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.

         [242 Md.App. 667] 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 ...