Fleming v. State Of Md..

Decision Date04 August 2010
Docket NumberNo. 899, Sept. Term, 2008.,899, Sept. Term, 2008.
Citation194 Md.App. 76,1 A.3d 572
PartiesMonti Mantrice FLEMING v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland



Brian A. Zemil of Towson (David S. Gray, Venable LLP of Baltimore, MD, on the brief), for Appellant.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for Appellee.

Panel: EYLER, DEBORAH S., WOODWARD and IRMA S. RAKER (Retired, Specially Assigned), JJ.


In this criminal case, appellant Monti Mantrice Fleming appeals his conviction for murder in the first degree. He raises three issues for our consideration:

“I. Did the lower court err by using the Frye-Reed test to prohibit Fleming from cross-examining the State's toolmark examiners about another method of toolmark identification that they chose not to use?
II. Did the lower court err by admitting expert opinions based on a fundamental assumption and methodology

that the scientific community does not generally accept as reliable?

III. Did the lower court abuse its discretion by denying Fleming's motion for mistrial when a police detective testified that she found two of the State's witnesses ‘to be credible?’

Although appellant raises interesting issues in this appeal, assuming without deciding that the trial judge erred with respect to the toolmark identification issues, this case is a textbook “harmless error” appeal and we shall so hold. We shall hold also that the trial court did not abuse its discretion in denying appellant's motion for a mistrial.


The Grand Jury for Howard County indicted appellant in connection with Shawn Powell's murder. Appellant was convicted of first-degree murder, using a handgun in the commission of a crime of violence, and wearing, carrying or transporting a handgun.

We set forth the facts in great detail to put our holding in perspective. In the late evening of August 26, 2006, appellant was involved in an altercation with the victim, Shawn Powell, in the Barnside town home neighborhood in Columbia. Several people witnessed appellant hitting Shawn Powell in the head with a glass bottle, and then drawing a gun and shooting between four and six shots in the direction of the retreating Powell. Shawn Powell was found dead at the foot of a stockade fence in a nearby yard at approximately 8:00 a.m. the following day, having died as a result of a single gunshot wound to his back.

In discovery, the State indicated that it intended to call expert witnesses in the field of firearm toolmark examination to establish that a gun which appellant gave to his step-grandfather, Willie Brown, shortly after the murder, was the same weapon that fired the fatal shots. Appellant filed a motion in limine to challenge the admissibility of that testimony.

The State called Torin Suber and Michael Nickol as expert witnesses to link the handgun recovered from Willie Brown's home with both shell fragments recovered from Powell's body, and firearm cartridge cases recovered from the scene. Appellant argued that the method of firearms toolmark analysis the State's expert witnesses used, “side-by-side, or split-screen comparative microscopic matching,” was unreliable and that the examiners should have used an alternative methodology, “consecutive matching striae” (hereinafter “CMS”).

The court held a three-day Frye-Reed hearing in January of 2008. Defense counsel cross-examined the State's firearms identification experts regarding their professional experience and the firearms identification technique they applied.

After considering the testimony of the State's witnesses, as well as scholarly articles discussing the state of the forensic firearms analysis field, the trial court concluded that the expert testimony using the traditional comparative microscopic matching technique was admissible under Frye-Reed. The court stated as follows:

“After hearing argument from both parties and considering the evidence, including the many articles on the subject, the court finds here that the State has met its burden of proof showing that the traditional pattern matching for determining forensic firearms analysis employed by the Maryland State Police is generally accepted in the relevant scientific community, and is almost exclusively used by forensic laboratories in Maryland.”

The court further found that both of the State's experts were qualified to testify as expert witnesses, concluding as follows:

“Under Rule 5-702 [ 1 ] ... there is sufficient factual basis from Mr. Suber and [Mr. Nickol] ... that would qualify

[them] as [experts] by knowledge, skill, experience, and training, that there is a sufficient factual basis.”

The circuit court concluded that CMS is not generally accepted within the scientific community and declined to require the use of the CMS methodology under Frye-Reed, reasoning as follows:

“CMS is not a predominant ... methodology. It has only been propounded since 1997 and as noted in [ United States v. Diaz, No. CR 05-00167, 2007 WL 485967, *11-12, 2007 U.S. Dist. LEXIS 13152, at *36-37 (N.D.Cal. Feb. 12, 2007) ], it is still a work in progress, a school of thought that is evolving.”

At the Frye-Reed hearing, defense counsel indicated that he planned to cross-examine the State's expert witnesses about the CMS technique during the trial on the merits, even though the witnesses did not use the CMS technique. The trial judge responded that he would be unlikely to allow this line of questioning:

[DEFENSE COUNSEL]: With regard to the CMS issue solely, to the extent that Your Honor has found that it is not generally accepted, I would imagine that that would be an indication that Your Honor would sustain any objection from the State where I would say or question whether or not he has even applied that in this case.
[THE COURT]: I think under my-I will hear from the State, but I think that would be consistent with my ruling.

The trial commenced on January 29, 2008, before a jury in the Circuit Court for Howard County. The State called as witnesses Shade Webb, Starlette Webb, and Kanise Lewis, each of whom was present for the altercation between appellant and Shawn Powell on the night before Powell was found dead.

Shade Webb testified that she was in the area of the Barnside town homes on the night of Shawn Powell's murder, visiting her mother and her younger sister, Starlette, who lived in the neighborhood. She testified that she had known Shawn Powell approximately four years, “from school and from [the] Columbia neighborhood.” She further testified that she knew who appellant was prior to the night of the incident, stating as follows:

[PROSECUTOR]: And had you known Monti Fleming prior to that evening?
[SHADE WEBB]: Not known him like we were friends, but know him from seeing him around the neighborhood.

On the night of Shawn Powell's murder, Webb met her sister at a friend's home in the neighborhood. The sisters walked to a nearby WaWa convenience store, and upon returning, conversed with other residents of the neighborhood on the sidewalk, including Shawn Powell. Shade testified that during or shortly after her conversation with Shawn Powell, Powell became embroiled in an altercation with appellant. She testified as follows:

[PROSECUTOR]: Did you stay at that area at that time with Shawn?
[SHADE WEBB]: Well, for a second. I was just asking him like what's going on, but I didn't know what the argument was about so I told him that I was going to walk up the sidewalk and when he got finished to just come up to the top of the sidewalk.

Soon thereafter, another young man, Dougie Roberts, appeared at the scene of the altercation, and reassured Shade Webb that “everything was cool.” Shade apparently left the immediate scene of the altercation for a short but indeterminate period, and then returned to where appellant and Shawn Powell were standing. She stated as follows:

“I was still talking to Shawn and telling him to come on and they were still kind of going back and forth. All three of them were kind of going back and forth. That is when

Monti kind of like told me like, ‘I'm just talking to him right quick, can you back off.’ So I just left.”

Shade walked back up the sidewalk to where her sister was standing. She described watching Shawn Powell start to walk away from appellant, up the sidewalk toward Ms. Webb. She testified that as Powell was walking away, appellant hit him in the back of the head with a bottle. She continued to watch as Shawn Powell then “hopped a fence,” and appellant did so as well. She testified as follows:

[PROSECUTOR]: When the defendant hopped into the yard, what, if anything, did you see?
[SHADE WEBB]: Monti pulled out a gun out of his pocket.
[PROSECUTOR]: I'm sorry?
[SHADE WEBB]: Monti pulled a gun out of his pocket.
[PROSECUTOR]: And did you see from which pocket he pulled it out of?
[SHADE WEBB]: Right.
[PROSECUTOR]: His right pocket?
[PROSECUTOR]: And what happened then?
[SHADE WEBB]: He fired it.
[PROSECUTOR]: Did he hold-how did he hold it?
[SHADE WEBB]: He held it in his right hand and shot four.
[PROSECUTOR]: And he shot-in which direction did he shoot?
[SHADE WEBB]: Straight towards Shawn.

* * *

[PROSECUTOR]: And did [Shawn Powell] stop, did he go on-
[SHADE WEBB]: No, he kept running.
[PROSECUTOR]: What did he do?
[SHADE WEBB]: He kept running.

Shade Webb testified that after appellant fired shots in the direction of Shawn Powell, he passed close by her before fleeing the scene. Shade testified as follows:

[PROSECUTOR]: [Appellant walked] [d]own the sidewalk? And was that in a direction towards or away from you?
[SHADE WEBB]: Towards me.

* * *

[PROSECUTOR]: And was there a gun in his hand at this point?
[SHADE WEBB]: It was in his hand. Once he got-well it's not in the picture, but it's like a couple of porches, the steps where Kanise and Taylor was, he put it back in his pocket.

* * *

[PROSECUTOR]: And when the defendant walked around the fence, how close were you

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