Morten v. State

• Decision Date: 04 September 2019
• Docket Number: No. 215, Sept. Term, 2017,215, Sept. Term, 2017
• Citation: 242 Md.App. 537,215 A.3d 846
• Parties: Delvonta MORTEN v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

242 Md.App. 537

215 A.3d 846

Delvonta MORTEN

v.STATE of Maryland

No. 215, Sept. Term, 2017

Court of Special Appeals of Maryland.

September 4, 2019

Argued by: Kiran Iyer (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant.

Argued by: Todd W. Hesel (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee.

Panel: Friedman, Beachley, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.

Moylan, J.

The two contentions raised by the appellant have one thing in common. They each engage the law of evidence. The first is on familiar turf, however, as we look again at two of the firmly rooted exceptions to the Rule Against Hearsay—the Excited Utterance and the Present Sense Impression. The second contention, by contrast, is at the far and unfamiliar cutting edge of the rapidly evolving science of DNA identification, to wit, at the newly developed TrueAllele testing modality. The appellant, Delvonta Morten, was convicted in the Circuit Court for Baltimore City in a jury trial of first-degree murder and various handgun offenses. On this appeal, he raises the two contentions:

1. that three separate instances of inadmissible hearsay evidence were erroneously admitted against him; and

2. that he was erroneously precluded from adequately challenging the DNA test results introduced against him.

Unexceptionable Factual Background

Each of these contentions, as we shall fully develop infra, is a strong and persuasive challenge to the prosecution's case. To illustrate the dispositive significance of the suspect evidence in each of the two challenges, we will initially set out just how lackluster a case this would have been in terms of its legal sufficiency without the infusion of the challenged hearsay and minus the arguably dubious DNA test result. What would have been the quality of the case to which no exception could have been taken? Would it have been legally sufficient to have supported the verdict? If necessity begets admissibility, of course, the State's case would have been a lock.

On September 21, 2015, at shortly after 5:00 p.m., Kevin Cannady was killed by a single gunshot to the back of his neck. The autopsy revealed that the bullet shattered the upper spinal column before lodging in the left cheekbone. The bullet itself was too mangled to permit any ballistic comparisons. The police received the emergency call at 5:11 p.m. and arrived at the scene at 5:15 p.m. The shooting scene was in the 4900 block of Cordelia Avenue immediately north of where it T-intersects with Reisterstown Road. A large crowd had gathered. No one at the scene had been an eyewitness to the shooting.¹ Just at the intersection of Cordelia Avenue and Reisterstown Road, there are located a small grocery store and a car dealership. A surveillance camera from outside the car dealership showed a person wearing a black hoodie and grey pants approaching the victim from behind and shooting him, before running up Cordelia Avenue alongside another person dressed in a burgundy jacket.

Approximately half an hour after the shooting, the police recovered "at the bottom of a tree stump" in the alley behind 4907 Cordelia Avenue, about a block from the shooting scene, a revolver. The firearms inspector was unable to confirm that the bullet taken from Cannady's left cheekbone had been fired from the .38 caliber Smith & Wesson revolver recovered by the police from the alley. They could say, however, that the bullet was a .38 or .357 caliber bullet, which showed "similar class characteristics" with the revolver.

It was two months later that the police first interviewed the appellant. A surveillance video from inside the grocery store showed a number of persons inside the store on September 21, 2015, at about 4:05 p.m. One of them was wearing a black hoodie. At the November 22, 2015, interview, the appellant acknowledged that he was the person in the grocery store wearing the black hoodie. The outdoor surveillance camera also showed a person wearing a black hoodie walking past the store at 5:01 p.m. and turning into Cordelia Avenue at 5:08 p.m.

That was the State's case without the challenged evidence. At that point, there was no firm linkage between the shooting and the revolver found in an alley about a block away. But for wearing a hoodie, there was no linkage between the appellant and the shooting. There was absolutely no linkage between the appellant and the revolver found in a backyard in the alley. The appellant would have walked.

Hearsay To The Rescue, Ostensibly

The bare bones of the State's legally insufficient case, however, were soon fleshed out by three rapid-fire infusions of hearsay evidence. These came from an unidentified female caller as anonymous calls to 911 at 5:35 p.m., at 5:41 p.m., and at 5:49 p.m. in the near aftermath of the shooting.

As out-of-court assertions offered, and ultimately received, for the truth of the things asserted, these anonymous calls were self-evidently hearsay. The appellant objected to each. Each was admitted, however, as a well-recognized exception to the Rule Against Hearsay, the first as an Excited Utterance, the second and third as Present Sense Impressions.

Call No. 1 came into 911 at 5:35 p.m., approximately 35 minutes after the shooting. It was accepted as an Excited Utterance. Its substance was as follows:

Operator: What's the emergency?

Caller: I just wanted to report that I saw two guys come down the alley. I heard somebody got shot right here on Reisterstown Road and I saw two guys running up the alley. The alley is on Arcadia. It's right next to 3716[.] And they came down the alley, and it's about the third house to the left. It's two empty yards, and they threw -- they put something down in there. And one guy had on a black hoodie with white on it, like a skeleton design or something, and the other guy had a -- sort of a burgundy jacket, but not a hoodie and --

Operator: Both black males?

Caller: Yes. Young, about 16/17.

Operator: Okay. And you said it's the alleyway near 3716 Arcadia.

Caller: Yeah.

Operator: Okay, I will have someone to check out that location. You're not quite sure if it's a gun or something or you just know that they threw something back in there?

Caller: I just heard a shot and then I saw them running.

(Emphasis supplied).

The second call followed, a bare six minutes later, at 5:41 p.m. This hearsay declaration was accepted as a Present Sense Impression.

Caller: Well I just wanted you to tell the police. They checking the rear[.] [T]hey going the wrong way. It's on Cordelia.

Operator: Okay. So where was the police called?

Caller: Oh, it's -- they were called because of the shooting. It was a shooting around near Reisterstown Road somewhere.

Operator: Okay. You don't know what cross street or which block?

Caller: I think -- no, I don't. It must have been around there about the 4900 block of Reisterstown Road but they looking in the wrong direction.

Operator: Okay. Are they looking for anybody?

Caller: They're looking for a gun.

Operator: Okay ... did you see where anybody put the gun?

Caller: They ... it was two guys. They threw it, more like buried it, in the houses going along the rear. The police done came down the alley, but they turned to the right. It's the rear of the houses on Cordelia.

Operator: Do you know what block of Cordelia?

Caller: Forty-eight and 49. It's right there at the corner of Arcadia and Cordelia.

Operator: Okay Arcadia at Cordelia, correct?

Caller: Yes. It's a big white truck. [T]hey need to come down the alley where the truck is right there parked[.] These -- people looking in the wrong direction[.] She's in the wrong yard.

Operator: And so is that police? It's a police officer?

Caller: The female officer just went in there.

Male Voice: What are you talking about? Which block of Cordelia is it?

Caller: (To another party) Over there. That's the 49.

(Emphasis supplied).

The third and final anonymous call came at 5:49 p.m. It was also admitted as a Present Sense Impression.

Caller: They looking in the wrong direction.[W]ould you tell those police officers .... They just left the alleyway where the gun is.

Operator: Okay. [S]o where were they at?

Caller: They came down the alley on the side of the 3716 Arcadia. That's the alley they should be looking down.

Operator: 3716 Arcadia?

Caller: Yeah, they have a back, but the houses on Cordelia face up that way. The backs face the backs. All I can say is that they left out the alley where the guns, whatever it is they put it down there. They need to come down the alley and look at the empty houses on the left. It's a vacant house with white[b]eige siding.

Operator: So, it's a house with beige siding?

Caller: Yeah, look in that area. That's where the gun is. That's where they put something down there, two guys.

Okay. They're looking in there now. When I see those suspects, I'll call back.

(Emphasis supplied).

Initial Focus

We direct our attention to the first of the anonymous 911 telephone calls, the one admitted into evidence as an ostensible Excited Utterance. This by far was the most important of the three hearsay declarations. It is, indeed, dispositive of this appeal.

This out-of-court assertion narrated a large part of the trial evidence. The declarant either heard a gunshot or "heard somebody got shot" and shortly thereafter "saw two guys running up the alley."² The declarant established that the person in the hoodie and the person in the burgundy jacket were accomplices, as they fled the crime scene together. The declarant gave a description of how the two assailants were dressed, one wearing "a black hoodie with white on it, like a skeleton design or something," and the other wearing "sort of a burgundy jacket, but not a hoodie." This was by far the best description of the assailants. It was the declarant, moreover, who described the fugitives as "black males" and as "[y]oung, about 16/17." It was the declarant who asserted that the fugitives had thrown something (it turned out to be a...