Miller v. State

• Decision Date: 20 September 2011
• Docket Number: Sept. Term,2009.,No. 77,77
• Citation: 28 A.3d 675,421 Md. 609
• Parties: Anthony Jerome MILLERv.STATE of Maryland.
• Court: Maryland Court of Appeals

421 Md. 609

28 A.3d 675

Anthony Jerome MILLER

v.STATE of Maryland.

No. 77

Sept. Term

2009.

Court of Appeals of Maryland.

Sept. 20, 2011.

Michael R. Malloy, Assistant Public Defender (Elizabeth L. Julian, Acting Public Defender, Baltimore, MD), on brief, for Petitioner/Cross–Respondent.Cathleen C. Brockmeyer, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent/Cross–Petitioner.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.MURPHY, J.

In the Circuit Court for Baltimore City, a jury convicted Anthony Jerome Miller, Petitioner, of two counts of second degree murder. The State's evidence was sufficient to establish that he had committed those offenses on April 11, 2003. After Petitioner's convictions were affirmed by the Court of Special Appeals in an unreported opinion, he filed a petition for writ a of certiorari in which he presented this Court with the following question:

Did the lower courts err by ruling admissible a handwriting expert's testimony that petitioner might have written the victim's signature on an important questioned document and that, based on his comparison of documents while on the stand testifying, the “general appearance” of the handwriting on the questioned document did not match the victim's handwriting?

We granted the Petition. 409 Md. 413, 975 A.2d 875 (2009). For the reasons that follow, we hold that neither the Circuit Court nor the Court of Special Appeals erred in their conclusions that the handwriting expert's testimony was admissible. We shall therefore affirm the judgment of the Court of Special Appeals.

Background

Petitioner was convicted of murdering Jason Convertino and a second victim (who, in the words of the Court of Special Appeals, “apparently happened to have been visiting Convertino and was in the wrong place at the wrong time”), whose bodies were found in Mr. Convertino's apartment on April 16, 2003. To prove that Petitioner shot them to death five days earlier, the State presented evidence that (1) Petitioner's DNA “matched” the DNA on latex gloves found in close proximity to Mr. Convertino's body; (2) on April 17, 2003, Petitioner pawned Mr. Convertino's laptop computer, (3) on April 9, 2003, Petitioner requested that the travel agency making arrangements for his honeymoon trip to Cancun fax to him an “authorization to charge” form so that the $2,015.98 he owed the agency could be charged to the credit card of an unnamed friend, (4) during the late evening of April 11, 2003 and during the early hours of April 12, 2003, Petitioner placed more than twenty phone calls to one Earl Fowlkes, claiming to be “in trouble,” and requesting that Fowlkes pick him up on the east side of Baltimore; and (5) on April 12, 2003, the travel agency received a fax transmission of the authorization form, purportedly signed by Mr. Convertino on April 10, 2003, that allowed the agency to obtain the funds owed by Petitioner from Mr. Convertino's account. It is the testimony related to the “authorization to charge” that is at issue in the case at bar.

The State's closing argument includes the following discussion of the evidence linking Petitioner to the murders:

... [The Petitioner] kills [Jason Convertino], takes his grandmother's phone, takes his laptop, takes his credit card, and after the man is dead just buys gas with it.

* * *

And how do we know that Jason [Convertino] didn't, out of the courtesy of his heart, give a man who did not invite him to his wedding, a $2,000 honeymoon? How do we know that? Well we heard Robert [Verderamo], the State's expert, testify that this handwriting, he couldn't say for sure but it had a lot in common with the defendant's handwriting. So then I asked him to look at Jason's Chevy Chase Bank account records full of Jason's signature. Remember [exhibits] 44A through 44K I think it was? You have lots and lots of checks from Jason and the signature on these checks looks absolutely nothing like the signature on the travel voucher. So what does he do? He is slick he dates it April 10th because Jason is still alive on April 10th. But he can't get it back to his good friend Terry Robinson on the 11th because he can't get out of Dodge. He is stuck in Fells Point. He calls Earl [Fowlkes] on April 11th, after he's killed the two men and taken everything [he can] find of Jason's .... he's called Earl [Fowlkes] over and over and over and over saying man get me out of here. Come get me, I'm in trouble..... only he can't get out of Dodge. Earl's not coming and so all night he calls, over and over and over and over[.]

In support of its contention that Petitioner forged the deceased Mr. Convertino's signature on the authorization to charge form, the State presented the testimony and written report of Robert J. Verderamo, a Baltimore City Police Department questioned document expert. The following transpired prior to Mr. Verderamo's testimony:

[DEFENSE COUNSEL]: I'm going to object to this next witness ...

[PROSECUTOR]: If I understand—normally, when I have these handwriting cases, the expert who is—there's no question he's an expert—says in my expert opinion this guy wrote this. This handwriting is his handwriting.

THE COURT: Right

[DEFENSE COUNSEL]: If I understand it, [the prosecutor] will certainly correct me if I am wrong, he's not going to say that. He's going to say it could have been him; it might have been him; maybe it's him; we can't say it's not him.

It seems to me that that is not admissible. That is prejudicial and it's not admissible evidence. The probative value has—it's just not admissible. I think he's going to have to say more—and I don't think he can—than it could have been him; we can't exclude him as the writer. That's the basis for my objection, sir.

* * *

THE COURT: [Defense Counsel], you'll have the opportunity to cross examine this witness and to question him in any respect you wish about the extent of his opinion and how far it goes, which would be true of any expert.

[DEFENSE COUNSEL]: But you wouldn't even let ... an expert in another field testify unless he could say within a reasonable degree of certainty, scientific or medical certainty depending on the context, this was this. You wouldn't, I don't think, allow an expert to testify that it could have been, it might have been, I can't say it's not him.

THE COURT: Well that is to the ultimate issue, I think.

In respect to a handwriting expert, I'm presuming that he can get on the stand and explain how he goes about making his analysis and why he can reach the conclusion and I can't exclude that this was his handwriting. That's probative, as far as that may go. It may not go very far, or it may, depending on—I don't know how the testimony is going to come out.

I think that, on balance (inaudible) the jury, so I'm going to permit the State to put [Mr. Verderamo] on.

The record shows that the following transpired during Mr. Verderamo's direct examination:

[DEFENSE COUNSEL]: We stipulate to—if you would like to accept it—to Mr. Verderamo's expertise.

[PROSECUTOR]: Okay, Your Honor, I'll offer Mr. Verderamo as an expert in the field of handwriting analysis and identification.

THE COURT: Very well. Base on the Stipulation of Counsel, I will find, and do find, that Mr. Verderamo is qualified as an expert to testify on the issue of handwriting analysis and identification.

* * *

Q: Now, with regard to the case involving the murder investigation into the death of Jason Convertino and

[the second

victim] ... Were you involved in any manner in this investigation.

A: Yes, I was.

Q: What was your role?

A: I had a request to do a comparison between a copy of a travel authorization sheet, or a credit card authorization sheet. That was the question[ed] document that I mentioned. I also had submitted to me index cards with the knowing writing of the suspect. I looked at both sets of documents and did my comparison.

* * *

Q: I'm going to show you what have been marked for identification purposes only, as State's Exhibit 40, 41, 42 ... Can you tell us what, if anything, you did with regard to this document? Just briefly.

A: This would be the questioned document. It's labeled as Q, meaning questioned, Q–1 on my report. This is the document I used for compar—this is the actual document that I used for comparing to the index cards.

Q: Is that the document that says, “Travel Concepts” with Jason Convertino's name and credit card information on it?

A: That's correct. I have that listed as “One Travel Concepts Authorization to Charge Form.”

Q: Okay and that's already in evidence. Let's show you what's been marked, for identification purposes only, as State's exhibit 40. What are we looking at here?

A: This is the actual report, outlining exactly the results of my examination.

Q: What is State's 41 for identification purposes?

A: There are 113 index cards that were indicated to me as the known handwriting of [Petitioner]. They have different writings on them, each one of the index cards.

I looked at these as the known writing and used that to make a comparison with the travel authorization sheet.

* * *

Q: Now, will you please tell us what you did?

A: Well, first thing I did was, I first looked at the questioned document. In doing a handwriting comparison, handwriting is a mental and muscular coordinated process. It's a habit and it's identifiable because it's a habit, and you repeat the characteristics.

I'm looking for these repetitive characteristics that are identified to a particular individuals writing.

The type of characteristics I'm looking for are, like, the size of the writing; the spacing between the letters; the pen movements; underhand connecting strokes; overhand connecting strokes; proportion of the letters, how tall the “T” is to an “A” or maybe how high up on the cross bar the “T” is compared to the staff of the “T”; or how big one letter is compared to another letter. I'm also looking for...