Muscolino v. State, No. 2515

CourtMaryland Court of Special Appeals
Writing for the CourtOpinion by Meredith, J.
Docket NumberNo. 2515
Decision Date15 December 2020


No. 2515


September Term, 2017
December 15, 2020

Circuit Court for Harford County
Case No. 12-K-16-1333


Meredith,* Berger, Moylan, Charles E. (Senior Judge, Specially Assigned), JJ.

Opinion by Meredith, J.

*Meredith, Timothy E., J., now retired, participated in the hearing of this case while an active member of this Court, and after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the preparation of this opinion.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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Following a nine-day jury trial in the Circuit Court for Harford County, Ricardo Muscolino, appellant, was convicted of the second-degree murder of his wife, Lara Muscolino, and of a handgun charge related to that crime. He was sentenced to a total of fifty years in prison. In this appeal, Muscolino contends that the trial court erred in denying his pretrial motion to suppress footage from a surveillance camera; erred and abused its discretion in the course of the jury-selection process; and erred in permitting the medical examiner to testify that it was "possible" that three of Mrs. Muscolino's bullet wounds were caused by the same bullet. Mr. Muscolino presents four questions (which we have reordered chronologically):

1. Did the lower court err in denying Mr. Muscolino's motion to suppress [a video recording from a home security camera]?

2. Did the trial court err in refusing to ask a voir dire question regarding bias based on the race of defense counsel?

3. Did the lower court err in placing limitations on the jury selection process that impeded Mr. Muscolino's right to a fair and impartial jury, to due process and to the effective assistance of counsel such that a mistrial should have been granted?

4. Did the lower court err in permitting improper testimony by the medical examiner?

For the reasons that follow, we shall affirm the judgments of the circuit court.


Sometime before 11:30 p.m. on August 31, 2016, Lara Muscolino was shot and fatally wounded while lying in her bed at her home on Windswept Court in Fallston, Maryland. Following the shooting—the sounds of which were recorded by a Nest

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surveillance camera in the Muscolinos' living room—Mr. Muscolino left the house and, within minutes, presented himself at a nearby police station, requesting that he be placed in handcuffs and announcing to officers that he was "involved in the incident" on Windswept Court that had just been called in to 911. Paramedics and police responded to the Muscolinos' home and transported Lara Muscolino to Bayview Hospital, where she died the next morning.

About a week after the murder, appellant's 15-year-old daughter (hereafter "Daughter") told her foster father, Matthew Kreager, that there was a "Nest Drop Cam" surveillance camera located in the living room of the Muscolinos' home. Police had not discovered this camera during their initial search on the night of the murder. Because the surveillance video recorded by that camera was automatically saved on the internet, Daughter was able to access the recording online by logging in to her mother's account. Mr. Kreager notified Harford County Sheriff's Office investigators of the existence of the recording device and gave them the log-in information he had been provided by Daughter. Detective Seth Culver, the lead detective on the case, and Detective Michael Wilsynski viewed and recorded (on a cell phone) the surveillance video the Nest camera had recorded at the time of Lara Muscolino's shooting. The video recording showed appellant entering the house on the night of the shooting, and going up the stairs toward the bedrooms. Five gunshots are heard on the recording, and then appellant is seen coming back downstairs and exiting the house. After viewing the recording online, the

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detectives sought and obtained a search warrant to get a copy of that video recording from the Nest company.

Appellant was charged with first-degree murder and use of a handgun in the commission of a crime of violence. He filed a motion to suppress the surveillance video recording of the shooting, and the court denied the motion. In the first issue on appeal, appellant argues that "no reasonable person would have understood that either [Mr.] Kreager or [Daughter] had actual authority to consent to a search of the video," and that the inevitable discovery doctrine is not applicable here.

Trial began with jury selection on October 23, 2017. Appellant, who is white, was represented by a team of four attorneys, three of whom were African-American. Prior to the commencement of jury selection, appellant asked the court to ask the venire: "[W]ould any juror let the race or have any serious, strong feelings about the race of the defense lawyers in this case?" The court declined to ask the requested question, and that ruling is the subject of the second issue on appeal.

Appellant retained a jury consultant to assist with his defense in this case. The court refused to allow the jury consultant to participate in jury selection to a degree acceptable to appellant, and this is the subject of the third issue on appeal.

Finally, appellant complains that the court erred in permitting the medical examiner, Dr. Melissa Brassell, to testify that it was "possible" that "wound paths of the left hand, left shoulder and left side of the neck are due to a single bullet pathway." Appellant objected at trial, and argued that, because Dr. Brassell used the word

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"possible," and did not use the words "to a reasonable degree of medical certainty," it was error to admit her opinion about the single bullet pathway. Appellant further asserts that his mistrial request based upon the admission of this testimony should have been granted.


I. Motion to Suppress

The standard for appellate review of a trial court's ruling on a motion to suppress evidence was summarized as follows by the Court of Appeals in McFarlin v. State, 409 Md. 391 (2009):

["]In reviewing a circuit court's grant or denial of a motion to suppress evidence, we ordinarily consider only the evidence contained in the record of the suppression hearing. The factual findings of the suppression court and its conclusions regarding the credibility of testimony are accepted unless clearly erroneous. We review the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party. We undertake our own constitutional appraisal of the record by reviewing the law and applying it to the facts of the present case.["]

Id. at 403 (quoting Rush v. State, 403 Md. 68, 82-83 (2008) (citations and internal quotation marks omitted in McFarlin)); accord Peters v. State, 224 Md. App. 306, 325 (2015).

In this case, appellant moved to suppress the surveillance video downloaded from the Nest Drop Cam that was located in the appellant's living room. This camera was not discovered when the house was searched by police on the night of the shooting, but it was seized when police returned to search the house pursuant to a second warrant on

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September 9. The testimony at the suppression hearing disclosed the following information.

About a week after the murder, Daughter became suspicious that a person who had access to the home was stealing from the then-unoccupied house. Daughter knew of the operable security camera in the living room, and logged into the Nest website using Lara's e-mail address. Daughter testified that she discovered that Lara's e-mail address was also her username on the Nest website, and that, once Daughter logged in with that username, she could prompt Nest to e-mail her a link (using Lara's e-mail address) to reset the password. As it turned out, Lara's e-mail password was the same password that the family used to log in to iTunes. So Daughter was able to access Lara's e-mail and then change the password for Nest to one that provided Daughter access to the Nest surveillance recordings saved on the Nest website. Daughter told her custodial foster parent, Mr. Kreager, about the surveillance camera and her ability to access the recordings on the internet, and Mr. Kreager persuaded her to provide that information to him, which he then provided to the police. Daughter testified at the suppression hearing:

[APPELLANT'S COUNSEL]: Okay. And how did you get on the Nest account?

[DAUGHTER]: Well, I had the username and password at that point. So I just logged in.

Q. And what did you do next?

A. Um, I started going back to see if I could find any evidence of [suspected person] stealing.

Q. And what happened next?

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A. Um, so I went on. I went back -- so, right. On the timeline I described earlier there's, like, these little, like, circles and those circles represent, like, movement that the camera picks up. So I was going through the circles and I could see my [suspected person] walking around. So I was looking for any, like, if I could see her walking out with stuff.

Q. Let me see if I can clarify that a little bit by asking a couple more questions. The little circle that points you to a portion of the tape shows what?

A. Movement.

Q. So the camera is motion sensitive?

A. Um, yeah, I guess so.

Q. And so you were looking for movement for what reason?

A. Because I'd rather not waste my time going through, like, all of it. I just wanted to see the movement part.

Q. Okay. So you just went from movement indicator to movement indicator?

A. Mm-hm.

Q. Did you see your [suspected person] walking around in any part of the house?

A. Yes.

Q. And was this after your mother's death?

A. Yes.

Q. And what did you see your [suspected person] doing?

A. Um, walking around. At one point she was looking in, like, the plants.

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