[Copyrighted Material Omitted]
Circuit Court for Frederick County, Case No.: 10-K-16-057851,
William R. Nicklas, Jr., Judge.
by: Allison Pierce Brasseaux (Paul B. DeWolfe, Public
Defender, on the brief), Baltimore, MD, for Appellant.
by: Todd W. Hesel (Brian E. Frosh, Attorney General, on the
brief), Baltimore, MD, for Appellee.
Berger, Leahy, Lynne A. Battaglia (Senior Judge, Specially
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 victims body,
appellant, Lloyd Harris, had resided at a
"campsite" nearby in the wooded area, and, during
the course of the investigation into the victims death,
became the primary suspect. The investigation largely
concluded in 2000.
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
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 States motion
to exclude defense evidence regarding an alternate suspect?
2. Did the trial court err when it denied Mr. Harriss motion
to dismiss due to pre-indictment delay?
3. Did the trial court err when it denied Mr. Harriss motion
to exclude the testimony of the States expert regarding acid
phosphatase and "time since intercourse" on
Frye - Reed grounds?
the reasons set forth below, we shall answer Harriss
questions in the negative and shall affirm the judgment of
the Circuit Court.
Md.App. 661] ALTERNATIVE SUSPECT
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 Spencers assault
conviction to bolster the theory that Spencer was an
• 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,
• Introduce the police report in State v. Elmer
Spencer, Frederick County Circuit Court Case No.
• 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.
trial judge subsequently held a hearing on the issue and
orally granted the States motion to exclude, but reserved
Harriss ability to cross-examine the States 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.
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 victims "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.
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 States 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 shes expected to testify that she doesnt. I
think its 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; theres not.
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. The trial judge denied the States
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
"wouldnt have thought of Spencer" as a suspect;
his goal was merely to provide "[t]ruthful
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 States motion in limine . Harris avers
that the evidence related to Spencer did more than "cast
a bare suspicion" of his culpability because the acts
underlying Spencers 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 victims disappearance.
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
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).
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.
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), affd, 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 defendants
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 courts decision to exclude evidence of
anothers prior bad acts for an abuse of discretion.
Moore v. State, 390 Md. 343, 384, 889 A.2d 325
Allen v. State, supra, 440 Md. at 676-77,
103 A.3d 700, the Court of Appeals held that a defendants
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 suspects
DNA being found at the scene of the crime for which Allen had
been charged, as well as the suspects 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 suspects recent conviction of
an allegedly-similar crime outweighed any slight probative
value regarding the alternative suspects alleged involvement
in the crimes for which the defendant was on trial.
Id. at 665, 103 A.3d 700. According to the Court,
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.
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 wifes 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 Tanejas Germantown home after
he was given power of attorney following Tanejas 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.
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 Tanejas stepson might have
murdered the victim. Id.
instant matter, the evidence regarding Spencer, specifically
the testimony of the officer who arrested him, the police
report resulting from the investigation into Spencers
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.
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 judges decisions were based on a sound use
of his discretion.
Md.App. 667] PRE-INDICTMENT DELAY
next challenges the twenty-year delay between the discovery
of the victims body and his indictment, contending that his
due process rights were violated by the State.
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]heres information that he ...