Cobey v. State, 237

• Decision Date: 02 December 1987
• Docket Number: No. 237,237
• Citation: 73 Md.App. 233,533 A.2d 944
• Parties: , 56 USLW 2378 Kenneth Sylvester COBEY v. STATE of Maryland. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 233

73 Md.App. 233

533 A.2d 944, 56 USLW 2378

Kenneth Sylvester COBEY v. STATE of Maryland.

No. 237 Sept. Term 1987.

Court of Special Appeals of Maryland.

Dec. 2, 1987.

W. Michel Pierson, Assigned Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Ann E. Singleton, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. for Montgomery County and Robert Dean, Asst. State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Argued before MOYLAN, WILNER, and WEANT, JJ.

WEANT, Judge.

Appellant, Kenneth S. Cobey, was convicted by a jury in the Circuit Court for Montgomery County of rape, several counts of sexual offense, robbery, and theft of over $300. All of the charges stem from an incident which occurred on 4 September 1985. On that evening, a young woman drove her 1985 blue Subaru automobile to Northwest Branch Park. She parked her car and went for a walk on a jogging trail which leads through the woods. While she was on the trail, she heard a man coming at her from behind, so she stepped aside to let him pass. Instead, the man grabbed her, knocking her down and off of the trail. He threatened to kill her if she screamed. He then pushed her into the woods, away from the trail, where he forced her to have oral sex with him, raped her, and had anal sex with her, all against her will. After the ordeal, he took the keys to her car and disappeared, leaving her in the woods. Later that night, the victim returned to the park with the police and her car was gone.

On 27 September 1985, the Washington, D.C. police set up a traffic observation checkpoint on Kennedy Street in the District of Columbia. Appellant Cobey was driving a 1985 blue Subaru that night and was ordered by the police to pull over and stop at the checkpoint. The officer who ordered appellant to stop testified that he did so because the car appellant was driving failed to display an inspection sticker and a front license plate, both of which are required by Washington D.C. law. The officer asked to see appellant's driver's license and a registration for the car. Appellant produced a valid Maryland license, but no registration. According to the officer, appellant said that the car belonged to a friend, but was unable to tell the officer his friend's last name or address. An initial computer check of the number of a Washington, D.C. license plate on the rear of the car failed to produce any information, so the police impounded the car for further investigation by a police auto theft unit. Appellant Cobey was given two traffic tickets and allowed to leave. Subsequent investigation revealed that the car appellant had been driving was the victim's 1985 blue Subaru which had been taken from Northwest Branch Park 23 days earlier. Appellant was arrested by Montgomery County Police on 30 September 1985.

During the first week of October 1985, the victim learned that she was pregnant. She testified that the only possible source of the pregnancy was the rape of 4 September 1985. She procured an abortion on 21 October 1985. With her permission, the police took possession of the aborted fetus. The fetus and blood samples from the victim and appellant were flown to Portland, Oregon for testing to determine whether appellant might be the man who fathered the fetus during the attack. Dr. Susan Olson, a cytogeneticist at the Oregon Health Sciences University, performed a technique known as Chromosome Variant Analysis ("C.V.A.") on cell tissues from the fetus and on both of the blood samples. Like blood tests, C.V.A. cannot prove that a man is the father of a child. It can only determine whether he is possibly the father. According to Dr. Olson, the C.V.A. performed in this case did not exclude the possibility that appellant fathered the victim's fetus.

In July of 1986, appellant was brought to trial for the September 1985 attack, but this resulted in a mistrial. Nevertheless, at this first trial, Judge Irma Raker had denied appellant's motion to exclude Dr. Olson's testimony before the mistrial was declared. At appellant's second trial, in December of 1986, Judge Richard Latham declined to relitigate the issue and permitted Dr. Olson to testify over appellant's objection. We know of no other Maryland case which has admitted testimony based on C.V.A.

Appellant presents three issues on appeal:

I. Did the lower court err in admitting expert testimony of chromosome variant analysis where the state failed to establish that the analysis was reliable and generally accepted?

II. Did the lower court err in admitting evidence obtained through seizure of an automobile driven by appellant where the seizure resulted from an unreasonable traffic roadblock?

III. Did the lower court err in permitting the introduction of mug shot photographs whose prejudice outweighed any minimal relevance?

I.

Appellant contends that C.V.A. has not been generally accepted as reliable in the relevant scientific community and therefore that testimony derived from the results of C.V.A. is inadmissible under Reed v. State, 283 Md. 374, 391 A.2d 364 (1978). In Reed, the Court of Appeals adopted the holding of Frye v. United States, 293 F. 1013 (D.C.Cir., 1923) that "before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field." Reed, 283 Md. at 381, 391 A.2d at 368. This has come to be known as the Frye-Reed test. The precise issue is thus whether it has been shown that it is generally accepted in the relevant scientific community that C.V.A. is a reliable test when used, as here, to establish paternity. When appellant raised this issue at the second trial, Judge Latham said that he would "ride with" Judge Raker's earlier decision to allow Dr. Olson to testify. Therefore, we will focus on Judge Raker's ruling.

Under the Frye-Reed test, the proponent of a new scientific test bears the burden of producing evidence to establish the technique's general acceptance. Thompson v. Thompson, 285 Md. 488, 497, 404 A.2d 269, 274 (1979). The State conceded at oral argument that it also bore the burden of persuasion, as the proponent of the new technique. (Whether the State, in a criminal trial, must prove the general acceptance of a new scientific technique beyond a reasonable doubt or merely by a preponderance of the evidence is not clear from prior cases. It matters not here, since we shall hold that the State has failed under either standard.) Judge Raker held that the State had met its burden under the Frye-Reed test. It is that determination which we must review. What is not clear under Reed and the few subsequent cases applying it is first, whether we are bound to consider only evidence in the record which was before the trial court, and second, what standard of review we are to apply to the trial court's decision.

In Reed, supra, the Court of Appeals did not address the issue of whether appellate review should be limited to consideration of the materials in the record. But, in holding that the trial court's decision to admit expert testimony based on spectrography (voiceprint analysis) was erroneous, the Court seems to have gone beyond the record:

Thus, based on our examination of the record in the instant case, the judicial opinions which have considered this question, and the available legal and scientific commentaries, we do not believe that "voiceprint" analysis has achieved the general acceptance in the scientific community, at this time, which is required under Frye. [Emphasis added.]

Reed, 283 Md. at 399, 391 A.2d at 377. In Collins v. State, 52 Md.App. 186, 447 A.2d 1272 (1982), aff'd in result, 296 Md. 670, 464 A.2d 1028 (1983), both appellate courts appear to have considered material outside of the record. See 52 Md.App. at 205, 447 A.2d at 1283 (court's decision based on "complete and careful review of the record in this case, as well as ... the scientific literature which has been called to our attention"). [Emphasis added.] See also 296 Md. at 695-700, 464 A.2d at 1041-43.

We also believe that the standard of review applicable to the trial court's finding of general acceptance is whether it is against the weight of the evidence rather than whether it is clearly erroneous. In Reed, supra, the Court of Appeals recognized that the issue of whether a scientific technique was sufficiently reliable for use at trial is not a traditional question of fact:

The question of the reliability of a scientific technique or process is unlike the question, for example, of the helpfulness of particular expert testimony to the trier of facts in a specific case. The answer to the question about the reliability of a scientific technique or process does not vary according to the circumstances of each case. It is therefore inappropriate to view this threshold question of reliability as a matter within each trial judge's individual discretion. Instead, considerations of uniformity and consistency of decisionmaking require that a legal standard or test be articulated by which the reliability of a process may be established.

283 Md. at 381, 391 A.2d at 367-68. The Court's action in Reed is also significant. It held that the trial court had misapplied the Frye standard by considering a too narrow scientific community. 283 Md. at 399, 391 A.2d at 377. The case was remanded for a new trial. But, instead of having the trial court decide whether spectrography was generally accepted as reliable within the proper scientific community, the Court of Appeals conducted its own examination of the evidence and concluded that spectrography was not generally accepted as reliable. Thus, the Court did not seem to place any weight on the trial court's factfinding function in this particular instance.

We also note that a standard of review which created a presumption of correctness in ...