Abruquah v. State

Docket Number10-2022
Decision Date20 June 2023
CourtMaryland Court of Appeals



No. 10-2022

Maryland Supreme Court[*]

June 20, 2023

Argued: October 4, 2022

Circuit Court for Prince George's County Case No. CT121375X


Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ.


Fader, C.J.


Firearms identification, a subset of toolmark identification, is "the practice of investigating whether a bullet, cartridge case or other ammunition component or fragment can be traced to a particular suspect weapon." Fleming v. State, 194 Md.App. 76, 100-01 (2010). The basic idea is that (1) features unique to the interior of any particular firearm leave unique, microscopic patterns and marks on bullets and cartridge cases that are fired from that firearm, and so (2) by comparing patterns and marks left on bullets and cartridge cases found at a crime scene ("unknown samples") to marks left on bullets and cartridge cases fired from a known firearm ("known samples"), firearms examiners can determine whether the unknown samples were or were not fired from the known firearm.

At the trial of the petitioner, Kobina Ebo Abruquah, the Circuit Court for Prince George's County permitted a firearms examiner to testify, without qualification, that bullets left at a murder scene were fired from a gun that Mr. Abruquah had acknowledged was his. Based on reports, studies, and testimony calling into question the reliability of firearms identification analysis, Mr. Abruquah contends that the circuit court abused its discretion in permitting the firearms examiner's testimony. The State, relying on different studies and testimony, contends that the examiner's opinion was properly admitted.

Applying the analysis required by Rochkind v. Stevenson, 471 Md. 1 (2020), we conclude that the examiner should not have been permitted to offer an unqualified opinion that the crime scene bullets were fired from Mr. Abruquah's gun. The reports, studies, and testimony presented to the circuit court demonstrate that the firearms identification methodology employed in this case can support reliable conclusions that patterns and markings on bullets are consistent or inconsistent with those on bullets fired from a


particular firearm. Those reports, studies, and testimony do not, however, demonstrate that that methodology can reliably support an unqualified conclusion that such bullets were fired from a particular firearm.

The State also contends that any error in the circuit court's admission of the examiner's testimony was harmless. Because we are not convinced "beyond a reasonable doubt, that the error in no way influenced the verdict," Dionas v. State, 436 Md. 97, 108 (2013) (quoting Dorsey v. State, 276 Md. 638, 659 (1976)), we must reverse and remand for a new trial.


Factual Background

On August 3, 2012, police responded to three separate calls complaining of disturbances at the house that Mr. Abruquah shared with his roommate, Ivan Aguirre-Herrera. On the third of these occasions, just before midnight, two officers arrived at the house. According to the officers, Mr. Abruquah appeared "agitated," "very aggressive," and uncooperative. One of the officers testified that Mr. Aguirre-Herrera appeared to be terrified of Mr. Abruquah. Before leaving around 12:15 a.m., the officers told the men to stay away from each other.

A neighbor of Messrs. Abruquah and Aguirre-Herrera testified that he heard multiple gunshots sometime between 11:30 p.m. on August 3 and 12:30 a.m. on August 4.

Four days later, officers discovered Mr. Aguirre-Herrera's body decomposing in his bedroom. An autopsy revealed that he had been shot five times, including once in the back


of the head. The police recovered four bullets and two bullet fragments from the crime scene.

During questioning, Mr. Abruquah told the police that he owned two firearms, both hidden in the ceiling of the basement of the residence he shared with Mr. Aguirre-Herrera. The police recovered both firearms, a Glock pistol and a Taurus .38 Special revolver.

A jailhouse informant testified that Mr. Abruquah had said that he had engaged in "a heated argument" with Mr. Aguirre-Herrera, "snapped," and shot him with "a 38" that he kept in the ceiling of his basement.[1]

Procedural Background

Mr. Abruquah was convicted by a jury of first-degree murder and related handgun offenses in December 2013. Abruquah v. State, No. 246, Sept. Term 2014, 2016 WL 7496174, at *1 &n.1 (Md.App. Dec. 20, 2016). In an unreported opinion, the Appellate Court of Maryland (then named the Court of Special Appeals)[2] reversed the judgment and remanded the case for a new trial on grounds that are not relevant to the current appeal. Id. at *9.

On remand, Mr. Abruquah filed a motion in limine to exclude firearms identification evidence the State intended to offer through its expert witness, Scott McVeigh, a senior firearms examiner with the Firearms Examination Unit of the Prince George's County


Police Department, Forensic Science Division. The circuit court held a four-day Frye-Reed hearing[3] during which both parties introduced evidence and elicited testimony that we summarize below.

Following the hearing, the circuit court largely denied, but partially granted, the motion. The court concluded that "firearm and toolmark identification is still generally accepted and sufficiently reliable under the Frye-Reed standard" and therefore should not be "excluded in its entirety." Nonetheless, the court agreed with Mr. Abruquah that the subjective nature of the matching analysis made it inappropriate for an expert to "testify to any level of practical certainty/impossibility, ballistic certainty, or scientific certainty that a suspect weapon matches certain bullet or casing striations." The court thus restricted the expert to opining whether the bullets and bullet fragment "recovered from the murder scene fall into any of' a particular set of five classifications, one of which is "[identification" of the unknown bullet as a match to a known bullet.

At trial, Mr. McVeigh testified about the process by which he eliminated the Glock pistol as a source of the unknown crime scene samples, created known samples from the Taurus revolver, and compared the microscopic patterns and markings on the two sets of samples. Over defense objection, Mr. McVeigh opined that four bullets and one bullet


fragment recovered from the crime scene "at some point had been fired from [the Taurus revolver]."[4]

Mr. Abruquah was again convicted of first-degree murder and use of a handgun in the commission of a crime. His first appeal from that conviction resulted in a remand to the circuit court to consider whether it "would reach a different conclusion concerning the admission of firearm and toolmark identification testimony" applying our then-new decision in Rochkind v. Stevenson, 471 Md. 1, 27 (2020). In that decision, which was issued after Mr. Abruquah's second conviction while his appeal was pending, we abandoned the Frye-Reed standard for admissibility of expert testimony in favor of the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. Abruquah v. State, 471 Md. 249, 250 (2020).

On remand, the circuit court held a hearing in which it once again received evidence from both sides, which is discussed further below. The court ultimately issued an opinion in which it reviewed each of the ten factors this Court set forth in Rochkind and concluded that the testimony remained admissible. The court noted that although Mr. Abruquah "ha[d] made a Herculean effort to demonstrate why the evidence should be heavily scrutinized, questioned and potentially impeached, the State has met the burden for admissibility of this evidence." The court therefore sustained Mr. Abruquah's prior conviction.


Mr. Abruquah filed another timely appeal to the intermediate appellate court and, while that appeal was pending, he filed a petition for writ of certiorari in this Court. We granted that petition to address whether the firearms identification methodology employed by Mr. McVeigh is sufficiently reliable to allow a firearms examiner, without any qualification, to identify a specific firearm as the source of a questioned bullet or cartridge case found at a crime scene. See Abruquah v. State, 479 Md. 63 (2022).


We review a circuit court's decision to admit expert testimony for an abuse of discretion. Rochkind, 471 Md. at 10. Under that standard, we will "not reverse simply because . . . [we] would not have made the same ruling." State v. Matthews, 479 Md. 278, 305 (2022) (quoting Devincentz v. State, 460 Md. 518, 550 (2018)). In connection with the admission of expert testimony, where circuit courts are to act as gatekeepers in applying the factors set out by this Court in Rochkind, a circuit court abuses its discretion by, for example, admitting expert evidence where there is an analytical gap between the type of evidence the methodology can reliably support and the evidence offered.[5] See Rochkind, 471 Md. at 26-27.


Part I of our discussion sets forth the standard for the admissibility of expert testimony in Maryland following this Court's decision in Rochkind v. Stevenson, 471 Md. 1 (2020). In Part II, we discuss general background on the firearms identification methodology employed by the State's expert witness, criticisms of that methodology, studies of the methodology, the testimony presented to the circuit court, and caselaw from other jurisdictions. In Part III, we apply the factors set forth in Rochkind to the evidence before the circuit court.

I. The Admissibility of Expert Testimony

The admissibility of expert testimony is governed by Rule 5-702, which provides: 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...

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