Matthews v. State

• Decision Date: 25 February 2021
• Docket Number: No. 3280, Sept. Term, 2018,3280, Sept. Term, 2018
• Citation: 249 Md.App. 509,246 A.3d 644
• Parties: Kirk MATTHEWS v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

249 Md.App. 509

246 A.3d 644

Kirk MATTHEWS

v.STATE of Maryland

No. 3280, Sept. Term, 2018

Court of Special Appeals of Maryland.

February 25, 2021

Submitted by: Helki Philipsen (Paul B. DeWolfe, Public Defender on the brief), Baltimore, MD, for Appellant.

Submitted by: Peter R. Naugle (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee

Graeff, Nazarian, Paul E. Alpert (Senior Judge, Specially Assigned), JJ.^*

Nazarian, J.

After a jury trial in the Circuit Court for Anne Arundel County, Kirk Matthews was convicted of two counts each of second-degree murder and use of a firearm in the commission of a crime of violence and one count each of possession of a shotgun after a disqualifying conviction and illegal possession of ammunition. On appeal, he argues that the court erred by permitting one of the State's witnesses to testify about an allegedly inconsistent prior statement made by another witness, by precluding him from questioning another State witness about the witness's criminal charges, and in denying his motion to preclude an expert report and testimony using photogrammetry and reverse photogrammetry projection. We agree the court erred in denying Mr. Matthews's motion to preclude the expert testimony and report, reverse on that ground, disagree with Mr. Matthews's other contentions, and remand for further proceedings.

I. BACKGROUND

The story of this case is complicated and hard to follow. A great many people were involved; many of them are related, others have lived in the affected neighborhood for years. Everything happened late at night, and the participants’ vision and memories were incomplete and frequently clouded by substances. There was some video footage, but it too was incomplete. The challenge for everyone lay in piecing together fragments of evidence that took many different forms.

On June 1, 2017, at approximately 12:30 a.m., the bodies of Linda McKenzie and Leslie Smith, her boyfriend, were found by the side of Scott Town Road, a dead-end street in Shady Side. The cause of death for both was multiple shotgun wounds to the upper extremities at close range. After a lengthy trial at which the only disputed issue was the identity of the shooter, Mr. Matthews was convicted of both murders and related charges.

In the hours before the victims’ deaths, each had traveled separately to Scott Town Road. They eventually got into a noisy fight that culminated in them chasing one another down the road in cars, one car driving forward and the other in reverse. The car driving in reverse backed into a ditch near the entrance of Scott Town Road. The police were called, and the car was removed from the ditch with the help of a neighbor, Joseph Tongue. After the car was removed, the victims remained in the vicinity, and the shooting occurred a short time later.

According to the prosecutor's opening statement, Scott Town Road is populated primarily by families who have lived in the area for generations. The prosecutor noted that many of the residents have developed family-like relationships and generally consider each other cousins, whether or not they're actually related by blood or marriage. Scott Town Road is also known to the police department as an open-air drug market, according to the prosecutor's opening statement:

So this area of Shadyside, this is Scotts Town Road. This is Shadyside Road, and this is the road that cuts through called Nick Road, so there's an intersection at the top of Scotts Town Road and Nick Road. This area is commonly known to the police department as what's called an open-air drug market. Particularly, the Scotts Town Road and the intersection of Nick and Scotts Town Road.

Now ... the locals call this dead-end part of Scotts Town "Down Bottom." They call that entire road "Lane," and this section up here at the intersection of Nick Road and Scotts Town Road is called "Up Top".... What you're going to hear is that on any given day, if you drove Down Bottom, to the end of Scotts Town Road, you could go and buy drugs of any sort, illegal drugs, from somebody down in that area. Or ... you can return Up Top to the intersection of Nick Road and Scotts Town Road and there's a drug house on the corner.

The day before the murders, the police had set up a surveillance pole camera at the top intersection of Nick Road and Scott Town Road. Another house, the Blunts’, has two security cameras. One of the Blunts’ cameras is mounted on the garage and aims down the driveway, and the other is set on the left-hand corner of the house aimed out to the street; both point directly at Scott Town Road. The cameras didn't capture the shootings on video, but they did provide evidence and helped paint the picture of events on the night of the murders.

Among the events captured on video was the car chase, which ultimately ended with one of the cars driving in reverse backing into the ditch. From there, the video showed Ms. McKenzie, Mr. Smith, and Mr. Tongue walking up and down the road trying to figure out how to get the car out of the ditch. Then the police arrived, and Mr. Tongue and Mr. Smith are seen pushing the car underneath the pole cam and out of view, then into Mr. Tongue's grandmother's driveway.

Roughly twenty minutes after the police left Scott Town Road, the Blunts’ cameras captured people running away from the scene of the shooting and a car backing away from the scene. The video then shows an individual walking on the street, carrying what appears to be a shotgun, cutting past the Blunt house and into the woods.

Both the events following the car's removal from the ditch and the identities of the individuals involved were hotly contested. Many of the witnesses were inebriated and struggled to remember the details of the evening.

Mr. Tongue testified that he was raised by his grandmother on the Lane, was friends with Ms. McKenzie, and is Mr. Matthews's cousin. He said that in the hours leading up the shootings he consumed about one pint of vodka, four PCP "dippers," and four Xanax bars. He maintained that he had difficulty remembering anything from the night of the murders after pushing Ms. McKenzie's car into his grandmother's driveway. Throughout Mr. Tongue's testimony, he repeatedly reread his own grand jury testimony to refresh his memory. Before the grand jury, he stated that after pushing the vehicle into the driveway, he told the victims to leave because he saw Mr. Matthews coming from Nick Road holding what appeared to be a long gun. Mr. Tongue repeated this statement to the trial jury, but said he could not identify Mr. Matthews by his face or clothing and had presumed the individual was Mr. Matthews based on his walk.

Mr. Tongue then walked away and heard Mr. Matthews arguing with the victims. After Mr. Tongue was some distance away, he heard gunshots and ran. He looked back after the second gunshot and saw Mr. Matthews standing next to Ms. McKenzie and Mr. Smith lying on the ground. The video also showed Mr. Tongue continuing to run and jumping into the car of his cousin, Kevin Matthews, along with a friend, Rico Hicks, who also was also fleeing the scene.

Kevin¹ dropped off Mr. Tongue and Rico at a neighbor's house, where they slept for an hour or more because, Mr. Tongue testified, they were "drunk" and "high." Mr. Tongue testified that at roughly 4:30 a.m. on June 1st, the two encountered the police when they tried to leave the neighbor's house and the police escorted them to the police station. The police questioned Mr. Tongue at that time, but he did not mention Mr. Matthews.

Later that same day, around 6:30 p.m., the police again questioned Mr. Tongue when they stopped a car in which he and Rico were riding. Mr. Tongue did not mention Mr. Matthews in response to those questions either. About a week later on June 7th, the police took Mr. Tongue to the police station for an unrelated arrest warrant and they again questioned him about the murders. Mr. Tongue testified that the police insinuated to him that they could help him out with his warrant, and they remarked that "inconveniences like this are going to keep happening," and that "things in the area were not going to go back to normal."

Finally, Mr. Tongue testified that on August 17th, the Fugitive Apprehension Squad picked up him and Rico pursuant to a warrant to obtain their DNA. He testified that the police questioned him a fourth time about the murders, and accused him of "not being honest," and said he was "going to be in this" whether he liked it or not. The detectives then showed Mr. Tongue the Blunt house camera footage, and they warned him that he would see Mr. Matthews in it. Mr. Tongue later identified Mr. Matthews as the individual holding the gun, but maintained that he did not see the murders.

On September 22nd, Mr. Tongue testified before a grand jury after meeting with the prosecutor. At that time, he provided his first account of seeing Mr. Matthews with a shotgun standing within five feet of the victims.

Kevin is Mr. Matthews's and Mr. Tongue's first cousin. At trial, he testified that he drove the car into which Mr. Tongue and Rico jumped when fleeing Scott Town Road on the night of the murders. Kevin told detectives that he saw Mr. Matthews Up Top at about 10:30 p.m. on May 31st but didn't see him again the rest of the night. He testified that there was a large amount of drug traffic that night, and that loud, rambunctious activity "does not belong" on the Lane. Kevin could not remember what caused him to drive his car in reverse with Mr. Tongue and Rico inside.

Richard Jackson grew up in the area and traveled to the Lane to do drugs the night of May 31st He testified that he arrived in the evening and was Down Bottom with Mr. Matthews and Rico. He saw the victims arguing with each other as they got into their cars and as Ms. McKenzie chased Mr. Smith into the ditch. Richard followed the chase in his own car, with Rico, then parked on the side of Scott Town Road. He testified that Mr. Matthews...