Massie v. State, No. 85

CourtCourt of Appeals of Maryland
Writing for the CourtArgued before BELL; RODOWSKY
Citation349 Md. 834,709 A.2d 1316
Decision Date01 September 1997
Docket NumberNo. 85
PartiesTimothy Lorne MASSIE, Sr. v. STATE of Maryland. ,

Page 834

349 Md. 834
709 A.2d 1316
Timothy Lorne MASSIE, Sr.
v.
STATE of Maryland.
No. 85, Sept. Term, 1997.
Court of Appeals of Maryland.
May 26, 1998

Page 835

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender, Julia Doyle Bernhardt, Asst. Public Defender, on brief), Baltimore, for petitioner.

Devy Patterson Russell, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

RODOWSKY, Judge.

In this certiorari review of a conviction for murder the issue is whether the trial court abused its discretion in permitting a forensics employee of the investigating police department, who was not a doctor of medicine, to opine as to the time of the victim's death.

The petitioner, Timothy Lorne Massie, Sr. (Massie), was convicted by a jury in the Circuit Court for Washington County of second-degree murder and sentenced to thirty years imprisonment. That judgment was affirmed by the Court of Special Appeals in an unreported opinion.

The victim was Massie's estranged wife, Debra Massie (Mrs. Massie). The murder was committed sometime on February 14 (Valentine's Day) in 1995. It was undisputed that the cause of death was strangulation and that Mrs. Massie was killed where her body was found, in the living room of the residence at 311 Jefferson Boulevard in Hagerstown where she resided with the Massies' twin, eight year old sons. Prior

Page 836

to the Massies' separation, the premises were the marital abode. To the rear of the dwelling house was a garage which Massie, the owner of a towing service, and his employees continued to use occasionally for the maintenance and repair of the tow trucks which were principally garaged elsewhere. Following the Massies' separation the dwelling house was "off limits" to Massie and his employees.

[709 A.2d 1317] Mrs. Massie was last seen alive by her stepmother at the latter's home when Mrs. Massie dropped off valentines between 11:00 a.m. and 11:15 a.m. on February 14, 1995.

On the day of the murder one of Massie's employee's, Daryl Moser (Moser), was working on a tow truck in the garage. He had arrived there between 11:00 a.m. and 11:15 a.m. He did not see Mrs. Massie at any time that day. Moser testified that Massie arrived at the garage between 11:15 a.m. and 11:30 a.m., remained for approximately ten minutes, and left. At 11:45 a.m., Moser heard a truck pull up to the garage. When no one entered, Moser looked outside and saw Massie inside the fenced-in yard of the dwelling, walking toward the rear of the house. Massie signaled to Moser that he would be back in a minute or two, and Moser went back to work. Five to eight minutes later, Massie returned from the house, had a two- to five-minute conversation with Moser in the garage, and drove off. Some time after Massie had left, a call came in from Massie's mother over the radio in the tow truck, "hollering for Tim." Moser looked at the truck's clock which, he recalled, read approximately 12:30 p.m.

At approximately 12:15 p.m. on February 14, 1995, Sergeant Richard C. Moyer (Moyer) of the Washington County Sheriff's Department telephoned Massie about some vehicles which Massie's company had towed at the request of the Sheriff's Department and which were stored at 30 Baltimore Street in Hagerstown. Moyer reached Massie's answering service, and Massie returned the call approximately ten minutes later. He sounded agitated. During that telephone conversation, Massie reported that wheels and tires had been stolen from one of the

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stored vehicles. Moyer advised Massie to speak with the Hagerstown police.

At 1:13 p.m., Sergeant William C. Wright, III (Wright) of the Hagerstown Police Department responded to the reported theft. He arrived at the storage lot at 30 Baltimore Street at 1:18 p.m. and was met by Massie. Wright remained with Massie until approximately 1:50 p.m., when Massie went to the Hagerstown Police Station. Four officers, as well as the front desk receptionist, testified that Massie was at the police station from approximately 2:00 p.m. until 2:30 p.m.

Mrs. Massie had not appeared at the Valentine's Day party that began at 12:45 p.m. at her sons' school. After school the boys were unable to gain entry to their home. They asked Moser if he knew where their mother was. Moser went to the back door of the Jefferson Boulevard residence and noticed broken glass by the knob. Moser knocked on the door and yelled inside for Mrs. Massie, but received no reply. He then took the Massie children to their grandparents' house that was nearby. From there he telephoned Mrs. Massie, but received no answer. After attempting unsuccessfully to contact Massie, Moser returned to the Jefferson Boulevard residence, reached through the broken pane, and opened the door. Moser discovered Mrs. Massie's body and immediately telephoned 911.

Community Rescue Service received that emergency call at 3:21 p.m. and promptly dispatched two paramedics who arrived at the murder scene approximately two minutes later. Randolph Scott Spies (Spies), one of the paramedics, testified on cross-examination that Mrs. Massie had been dead for "well over an hour" before he arrived. On redirect, Spies said that he could not specify by how much more than an hour the body had been dead. It was cool, but not cold. Spies's concern was whether to initiate resuscitation, which he did not attempt.

The witness with whose testimony we are concerned is Jeffrey Craig Kercheval (Kercheval), a forensic chemist with the Hagerstown Police Department. He arrived at the crime

Page 838

scene at approximately 4:05 p.m., conducted a brief walk-through of the premises, and at about 4:15 p.m. made an examination of the victim which is more particularly described, infra. The trial court permitted Kercheval to express, over objection, the opinion that Mrs. Massie had been dead for as long as five hours, i.e., from 11:15 a.m. at the earliest. Massie claims that that ruling was erroneous.

Dr. Edward Ditto, III (Ditto), the Deputy Medical Examiner for Washington County, arrived at the scene shortly after 5:00 p.m. [709 A.2d 1318] Ditto concluded that Mrs. Massie died at approximately 2:30 p.m. He recorded that as the time of death in his official report. Later, Ditto told the defense investigator that the time of death was 2:30 p.m., "give or take fifteen minutes." At trial Ditto testified that he was told by an unidentified officer at the crime scene that Massie had visited his wife there at about 2:00 p.m. Ditto took that information into account in his reported time of death. Having since learned that that information was not correct, Ditto testified that death could have been as early as 12:15 p.m., although he acknowledged that his examination of the body was also consistent with death having occurred at 2:15 p.m.

Dr. Dennis Chute, the forensic pathologist who performed the autopsy on Mrs. Massie in Baltimore, recorded in his report that the time of death was 2:30 p.m. He was not asked any questions about the time of death.

The State's theory of the case was that Massie murdered his wife and attempted to make it appear that the murder was committed by an intruder. Further, there was evidence from which the jury could have found that Massie's motive was to avoid transferring an anticipated one-half of the value of his business and of the Jefferson Boulevard property to his wife in their divorce which Massie was anxious to conclude in order to marry another woman.

The evidence linking Massie to the murder included the following. Kercheval found a note on the television set at the crime scene which read: "Your husband is next, I need money." That note was written in ink that matched the ink in

Page 839

a pen taken from Massie. The pen was a counterfeit Cross pen that had a very rare type of ink, thus substantially increasing the likelihood that Massie's pen was the one used to write the note. Further, a cigarette butt, found in the trash can in the kitchen at 311 Jefferson, carried DNA that matched Massie's DNA. Glass on a hammer recovered by Kercheval and glass fragments from blue work pants belonging to Massie were "optically indistinguishable" from the glass in the kitchen door's broken window pane. This type of glass was different from ninety-one percent of the glass in the FBI's data base.

In addition, the murderer had taken Mrs. Massie's pocketbook. Thereafter Massie asked Moser whether he had noticed that the purse was missing, but a detective testified that this information was not made known to Massie or to the public. There was also evidence that Mrs. Massie carried in her purse an address book that contained the unlisted telephone number of a longtime friend of Mrs. Massie. That friend testified that, after the murder, Massie telephoned her on her unlisted line.

Massie did not testify at trial. The defense strategy was to generate a reasonable doubt based on the fact that Massie was at the police station when, according to Dr. Ditto's report, Mrs. Massie was being strangled.

Against the foregoing background we now turn to the issue before us. The question presented in Massie's petition for certiorari reads:

"Did the trial court err in concluding that, although a witness was not an expert in pathology and could not give an opinion as to time of death, the witness could give 'his opinion the time of death was somewhere between the time of his arrival and two hours before ... six hours before'?"

The phraseology of the question presented reflects the evolution of the trial judge's analysis that led to the disputed admission of Kercheval's opinion.

The Court of Special Appeals described the witness's general qualifications as follows:

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"Kercheval received an Associates of Arts degree from Hagerstown Junior College and a Bachelors of Science degree with a major in Biology from St. Mary's...

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39 practice notes
  • Blackwell v. Wyeth, No. 112, September Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • May 7, 2009
    ...sufficiently qualified him to testify as to the cause of the child's death. Deese, 367 Md. at 304, 786 A.2d at 757. In Massie v. State, 349 Md. 834, 709 A.2d 1316 (1998), another case relied upon by the Blackwells, we addressed an expert's qualification in the area of forensics. Massie had ......
  • Butler-Tulio v. Scroggins, No. 1478
    • United States
    • Court of Special Appeals of Maryland
    • June 29, 2001
    ...to admit or exclude expert testimony, a trial judge is "vest[ed] ... with [a] wide latitude" of discretion. Massie v. State, 349 Md. 834, 850, 709 A.2d 1316 (1998). Indeed, that decision "will be reversed only if it is founded on an error of law or some serious mistake, or if......
  • Lewin Realty v. Brooks, No. 254
    • United States
    • Court of Special Appeals of Maryland
    • April 26, 2001
    ...admit or exclude particular expert testimony," and we review the trial court's decision for an abuse of discretion. Massie v. State, 349 Md. 834, 850-51, 709 A.2d 1316 In order to qualify as an expert, a witness "should have such special knowledge of the subject on which he is to ......
  • Fusco v. Shannon, No. 2819
    • United States
    • Court of Special Appeals of Maryland
    • March 20, 2013
    ...opinion, including the witness's formal education, professional training, personal observations, and actual experience.” Massie v. State, 349 Md. 834, 851, 709 A.2d 1316 (1998) (citations omitted). As previously stated, appellees assert that the trial court properly exercised its discretion......
  • Request a trial to view additional results
39 cases
  • Blackwell v. Wyeth, No. 112, September Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • May 7, 2009
    ...sufficiently qualified him to testify as to the cause of the child's death. Deese, 367 Md. at 304, 786 A.2d at 757. In Massie v. State, 349 Md. 834, 709 A.2d 1316 (1998), another case relied upon by the Blackwells, we addressed an expert's qualification in the area of forensics. Massie had ......
  • Butler-Tulio v. Scroggins, No. 1478
    • United States
    • Court of Special Appeals of Maryland
    • June 29, 2001
    ...to admit or exclude expert testimony, a trial judge is "vest[ed] ... with [a] wide latitude" of discretion. Massie v. State, 349 Md. 834, 850, 709 A.2d 1316 (1998). Indeed, that decision "will be reversed only if it is founded on an error of law or some serious mistake, or if......
  • Lewin Realty v. Brooks, No. 254
    • United States
    • Court of Special Appeals of Maryland
    • April 26, 2001
    ...admit or exclude particular expert testimony," and we review the trial court's decision for an abuse of discretion. Massie v. State, 349 Md. 834, 850-51, 709 A.2d 1316 In order to qualify as an expert, a witness "should have such special knowledge of the subject on which he is to ......
  • Fusco v. Shannon, No. 2819
    • United States
    • Court of Special Appeals of Maryland
    • March 20, 2013
    ...opinion, including the witness's formal education, professional training, personal observations, and actual experience.” Massie v. State, 349 Md. 834, 851, 709 A.2d 1316 (1998) (citations omitted). As previously stated, appellees assert that the trial court properly exercised its discretion......
  • Request a trial to view additional results

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