Circuit Court for Prince George’s County
Case No. CT12-1375X
IN THE COURT OF APPEALS
OF MARYLAND
No. 34
September Term, 2020
KOBINA EBO ABRUQUAH
v.
STATE OF MARYLAND
Barbera, C.J.,
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
PER CURIAM ORDER
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2020-10-27 13:35-04:00
Watts and Hotten, JJ., dissent.
Suzanne C. Johnson, Clerk
Filed: October 27, 2020
KOBINA EBO ABRUQUAH * IN THE
* COURT OF APPEALS
* OF MARYLAND
v.
* COA-REG-0034-2020
* No. 34
STATE OF MARYLAND * September Term, 2020
PER CURIAM ORDER
The Court having considered and granted the petition for a writ of certiorari in the
above-captioned case, it is this 27th day of October, 2020,
ORDERED, by the Court of Appeals of Maryland, that the judgment of the Court
of Special Appeals is vacated and the case is remanded to that Court with direction to
remand the case to the Circuit Court for Prince George’s County, pursuant to Maryland
Rule 8-604(d)(1) without affirming or reversing the judgment of the Circuit Court, in order
for the Circuit Court to consider whether, in light of this Court’s decision in Rochkind v.
Stevenson, No. 47 (September Term, 2019), the Circuit Court would reach a different
conclusion concerning the admission of firearm and toolmark identification testimony
based on the extensive hearing already conducted by the Circuit Court and such further
proceedings, if any, that the Circuit Court deems necessary. Costs to be paid by Petitioner.
/s/ Mary Ellen Barbera
Chief Judge
Circuit Court for Prince George’s County
Case No. CT12-1375X
IN THE COURT OF APPEALS
OF MARYLAND
No. 34
September Term, 2020
______________________________________
KOBINA EBO ABRUQUAH
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
______________________________________
Dissenting Opinion by Watts, J.,
which Hotten, J., joins.
______________________________________
Filed: October 27, 2020
Respectfully, I dissent from the Majority’s decision to grant the petition for a writ
of certiorari, vacate the Court of Special Appeals’s judgment, and remand (“GVR”) for
reconsideration in light of Stanley Rochkind v. Starlena Stevenson, ___ Md. ___, ___ A.3d
___, No. 47, Sept. Term, 2019, 2020 WL 5085877, at *2 (Md. Aug. 28, 2020),
reconsideration denied (Sept. 25, 2020). In short, the GVR that the Majority orders is a
waste of judicial resources because the circuit court has already conducted an extensive
hearing over the course of six days on a motion in limine to exclude firearm or toolmark
identification testimony filed by Petitioner, and the issue concerning the application of
Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993), is not preserved for appellate
review. In this case, Petitioner’s line of attack on the State’s expert opinion was based on
the contention that the method that the expert used to tie him to the murder—firearms
toolmark examination—was no longer generally accepted, i.e., failed to pass muster under
the Frye-Reed1 standard, and Petitioner questioned the reliability of the expert’s
methodology. As the Court of Specials noted, the Circuit Court for Prince George’s
County “declin[ed] to hold a Frye-Reed hearing[,]” Kobina Ebo Abruquah v. State, No.
2176, Sept. Term, 2018,
2020 WL 261722, at *6 (Md. Ct. Spec. App. Jan. 17, 2020), but
nonetheless conducted an extensive evidentiary hearing, see id. at *1-2. During the
hearing, the circuit court heard testimony from expert witnesses for Petitioner and the State
and admitted documents concerning firearms examination into evidence. Following the
hearing, the circuit court issued a written opinion and order denying Petitioner’s motion in
1
See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Reed v. State,
283 Md.
374,
391 A.2d 364 (1978).
part and granting it in part. In the opinion, the circuit court determined that toolmark
examination remains generally accepted and reliable “under the Frye-Reed standard” and
ruled that the expert could give an opinion as to whether bullets recovered from the victim
could be attributed to a gun recovered from Petitioner, but could not state the opinion in
terms of “absolute or scientific certainty[.]”2
In sum, both the circuit court and the Court of Special Appeals determined that the
expert’s testimony was admissible despite Petitioner’s arguments otherwise. As a result of
this Court’s GVR, the circuit court, and potentially the Court of Special Appeals, will need
to spend time and effort determining whether in light of this Court’s decision in Rochkind
it “would reach a different conclusion concerning the admission of firearm and toolmark
identification testimony” and assessing entirely different grounds for possibly excluding
the expert’s testimony than those advanced initially in the circuit court, and ones that
Petitioner never raised as a challenge—namely, whether firearms toolmark examination in
general, or the expert’s testimony about it in particular, satisfies Daubert. The question in
this case that both the circuit court and the Court of Special Appeals addressed is whether
toolmark examination is generally accepted in the relevant scientific community and
whether the methodology used by the expert was reliable. It appears that nothing in the
record in this case indicates that there would be any further basis for a Daubert challenge
to the expert’s testimony or to firearms toolmark examination. The GVR in this case would
2
In the circuit court, Petitioner was convicted of first-degree murder and use of a
handgun in the commission of a crime of violence and sentenced to life imprisonment plus
twenty years.
-2-
require the circuit court, and/or the Court of Special Appeals, to readdress matters that have
already been decided and to entertain a Daubert challenge that Petitioner never made, and
that the record does not appear to give a basis for.
Any issue as to whether the circuit court was required to conduct a Daubert hearing,
and/or engage in a Daubert analysis, is not preserved for appellate review because it was
neither “raised in [n]or decided by the [circuit] court[,]”3 Md. R. 8-131(a), and none of the
three questions that Petitioner presented in the petition for a writ of certiorari pertain to
Daubert. Instead, in a footnote in the petition for a writ of certiorari, Petitioner stated that,
if this Court replaced the Frye-Reed standard with the Daubert standard in Rochkind, here,
“it could evaluate the reliability of the methodology using Daubert.” (Citing Savage v.
State, 455 Md. 138, 175 n.1,
166 A.3d 183, 204 n.1 (2017) (Adkins, J., concurring)).
In Rochkind, 2020 WL 5085877, at *18, this Court reasoned that its holding would
apply to “any other cases that [were] pending on direct appeal when [the] opinion [was]
filed, where the relevant question ha[d] been preserved for appellate review.” (Cleaned
up). This Court also stated: “In this context, the ‘relevant question’ is whether a trial court
erred in admitting or excluding expert testimony under Maryland Rule 5-702 or Frye-
Reed.” Rochkind,
2020 WL 5085877, at *18. As explained in the dissent:
3
In his opening brief in the Court of Special Appeals, Petitioner mentioned Daubert
by quoting the following language from Sissoko v. State, 236 Md. App. 676, 707-08,
182
A.3d 874, 892, cert. denied,
460 Md. 1,
188 A.3d 917 (2018): “[O]ur jurisprudence . . . has
‘drift[ed]’ toward the Daubert standard, in that the Court of Appeals 1) has used the Frye-Reed test ‘not only to evaluate scientific methods, but also to assess scientific conclusions’;
and 2) has applied the Frye-Reed test to established, as well as novel, scientific methods.”
(Quoting Savage v. State,
455 Md. 138, 187, 180-81,
166 A.3d 183, 212, 208-09 (2017)
(Adkins, J., concurring)) (second alteration in original).
-3-
In Griffith v. Kentucky, 479 U.S. 314, 322 (1987), the Supreme Court held
that not applying a newly announced constitutional rule to criminal cases
pending on direct appeal is not consistent with basic principles of
constitutional adjudication. In light of the Supreme Court’s holding in
Griffith, in some instances, this Court has given the application of new
holdings to cases that were pending on appeal, where the new holding
involved an issue of constitutional significance in criminal law. See, e.g.,
Hackney v. State, 459 Md. 108, 119,
184 A.3d 414, 421 (2018); State v.
Daughtry, 419 Md. 35, 77 n.26,
18 A.3d 60, 85 n.26 (2011). Neither the
holding in Griffith concerning the application of a newly announced
constitutional rule nor the application of Griffith in Kazadi v. State, 467 Md.
1, 47,
223 A.3d 554, 581 (2020), and Daughtry would apply to a change of
the evidentiary standard for use under Maryland Rule 5-702.
Rochkind, id. at *29 n.6 (Watts, J., dissenting).
Although the Majority determined otherwise—i.e., that its holding in Rochkind
would apply to cases that were pending on appeal where the relevant question is
preserved—this does not mean that the Majority is required to automatically apply its
holding to any such case. The Majority should still exercise discretion in determining
whether to GVR and, in my view, should not do so where the case involves a determination
by the trial court after a thorough and lengthy hearing and an affirmance by the Court of
Special Appeals, where no real issue exists with respect to the application of Daubert.
More troubling, the GVR order issued by this Court vacates the judgment of the Court of
Special Appeals and remands the case to the circuit court “without affirming or reversing
the judgment of the Circuit Court,” and tasks the circuit court with considering whether it
would reach a different decision about the admissibility of the expert testimony in light of
Daubert. This order provides no guidance to the circuit court as to what proceedings to
conduct in order to determine whether it would now change its ruling. For example, is the
circuit court to seek memoranda or input of any kind from the parties, conduct an
-4-
evidentiary or non-evidentiary hearing, or make a decision based on the existing record?
And, after the circuit court determines the manner in which it will proceed, in what form
should its determination be rendered, and will its determination be immediately
appealable? Although the order may sound appropriate and thoughtful, it is an unusual
order with no clear path to be followed. Aside from the obvious problems with the GVR
order, because the issue concerning the applicability of Daubert was not raised at trial, and
the circuit court has already conducted a lengthy and detailed hearing concerning the
admissibility of the expert testimony at issue, the GVR that the Majority orders is
unwarranted.
For the above reasons, respectfully, I dissent.
Judge Hotten authorizes me to state that she joins in this dissent.
-5-
