WOOD, Circuit Judge.
Gloria Swanson sued Citibank, Andre Lanier, and Lanier's employer, PCI Appraisal Services, because she believed that all three had discriminated against her on the basis of her race (African-American) when Citibank turned down her application for a home-equity loan. Swanson also named her husband, Charles Routen, as a co-plaintiff and a co-appellant but since Swanson is proceeding pro se, she may not represent her husband. See FED.R.CIV.P. 11(a); Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007). We have therefore dismissed Routen as a party on appeal; we proceed solely with respect to Swanson's part of the case. She was unsuccessful in the district court, which dismissed in response to the defendants' motion under FED.R.CIV.P. 12(b)(6).
Swanson based her complaint on the following set of events, which we accept as true for purposes of this appeal. Hemi Group, LLC v. City of New York, N.Y., ___ U.S. ___, 130 S.Ct. 983, 986-87, ___ L.Ed.2d ___ (2010). In February 2009 Citibank announced a plan to make loans using funds that it had received from the federal government's Troubled Assets Relief Program. Encouraged by this prospect, Swanson went to a Citibank branch to apply for a home-equity loan. A representative named Skertich told Swanson that she could not apply alone, because she owned her home jointly with her husband; he had to be present as well. Swanson was skeptical, suspecting that Skertich's demand was a ploy to discourage loan applications from African-Americans. She therefore asked to speak to a manager. When the manager joined the group, Swanson disclosed to both Skertich and the manager that Washington Mutual Bank previously had denied her a home-equity loan. The manager warned Swanson that, although she did not want to discourage Swanson from applying for the loan, Citibank's loan criteria were more stringent than those of other banks.
Still interested, Swanson took a loan application home and returned the next day with the necessary information. She was again assisted by Skertich, who entered the information that Swanson had furnished into the computer. When he reached a question regarding race, Skertich told Swanson that she was not required to respond. At some point during this exchange, Skertich pointed to a photograph on his desk and commented that his wife and son were part African-American.
A few days later Citibank conditionally approved Swanson for a home-equity loan of $50,000. It hired Andre Lanier, who worked for PCI Appraisal Services, to visit Swanson's home for an onsite appraisal. Although Swanson had estimated in her loan application that her house was worth $270,000, Lanier appraised it at only $170,000. The difference was critical: Citibank turned down the loan and explained that its conditional approval had been based on the higher valuation. Two months later Swanson paid for and obtained an appraisal from Midwest Valuations, which thought her home was worth $240,000.
Swanson saw coordinated action in this chain of events, and so she filed a complaint (later amended) charging that Citibank, Lanier, and PCI disfavor providing home-equity loans to African-Americans, and so they deliberately lowered the appraised value of her home far below its actual market value, so that they would have an excuse to deny her the loan. She charges that in so doing, they violated the Fair Housing Act, 42 U.S.C. § 3605, and the Equal Credit Opportunity Act, 15 U.S.C. § 1691(a)(1). The district court granted the defendants' motions to dismiss both theories. It relied heavily on Latimore v. Citibank Fed. Savings Bank, 151 F.3d 712 (7th Cir. 1998), a case in which this court described the evidence required to defeat a defense motion for summary judgment on a credit discrimination claim. Initially, the court liberally construed Swanson's complaint to include a commonlaw fraud claim and declined to dismiss that aspect of the case. Later, however, the defendants moved to dismiss the fraud claim as well, and the district court granted the motion on the grounds that the statements on which Swanson relied were too indefinite and her reliance was unreasonable. This appeal followed.
Before turning to the particulars of Swanson's case, a brief review of the standards that apply to dismissals for failure to state a claim is in order. It is by now well established that a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law. Cf. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), disapproved by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("after puzzling the profession for 50 years, this famous observation [the `no set of facts' language] has earned its retirement"). The question with which courts are still struggling is how much higher the Supreme Court meant to set the bar, when it decided not only Twombly, but also Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This is not an easy question to answer, as the thoughtful dissent from this opinion demonstrates. On the one hand, the Supreme Court has adopted a "plausibility" standard, but on the other hand, it has insisted that it is not requiring fact pleading, nor is it adopting a single pleading standard to replace Rule 8, Rule 9, and specialized regimes like the one in the Private Securities Litigation Reform Act ("PSLRA"), 15 U.S.C. § 78u-4(b)(2).
Critically, in none of the three recent decisions — Twombly, Erickson, or Iqbal — did the Court cast any doubt on the validity of Rule 8 of the Federal Rules of Civil Procedure. To the contrary: at all times it has said that it is interpreting Rule 8, not tossing it out the window. It is there-fore useful to begin with a look at the language of the rule:
(a) Claim for Relief. A pleading that states a claim for relief must contain:
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(2) a short and plain statement of the claim showing that the pleader is entitled to relief. . . .
FED.R.CIV.P. 8(a)(2). As one respected treatise put it in 2004,
all that is necessary is that the claim for relief be stated with brevity, conciseness, and clarity. . . . [T]his portion of Rule 8 indicates that a basic objective of the rules is to avoid civil cases turning on technicalities and to require that the pleading discharge the function of giving the opposing party fair notice of the nature and basis or grounds of the pleader's claim and a general indication of the type of litigation that is involved. . . .
5 CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1215 at 165-173 (3d ed. 2004).
Nothing in the recent trio of cases has undermined these broad principles. As Erickson underscored, "[s]pecific facts are not necessary." 551 U.S. at 93, 127 S.Ct. 2197. The Court was not engaged in a sub rosa campaign to reinstate the old fact-pleading system called for by the Field Code or even more modern codes. We know that because it said so in Erickson: "the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Id. Instead, the Court has called for more careful attention to be given to several key questions: what, exactly, does it take to give the opposing party "fair notice"; how much detail realistically can be given, and should be given, about the nature and basis or grounds of the claim; and in what way is the pleader expected to signal the type of litigation that is being put before the court?
This is the light in which the Court's references in Twombly, repeated in Iqbal, to the pleader's responsibility to "state a claim to relief that is plausible on its face" must be understood. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Iqbal, 129 S.Ct. at 1949. "Plausibility" in this context does not imply that the district court should decide whose version to believe, or which version is more likely than not. Indeed, the Court expressly distanced itself from the latter approach in Iqbal, "the plausibility standard is not akin to a probability requirement." 129 S.Ct. at 1949 (quotation marks omitted). As we understand it, the Court is saying instead that the plaintiff must give enough details about the subject-matter of the case to present a story that holds together. In other words, the court will ask itself could these things have happened, not did they happen. For cases governed only by Rule 8, it is not necessary to stack up inferences side by side and allow the case to go forward only if the plaintiffs inferences seem more compelling than the opposing inferences. Compare Makor Issues Rights, Ltd. v. Tellabs Inc., 513 F.3d 702, 705 (7th Cir. 2008) (applying PSLRA standards).
The Supreme Court's explicit decision to reaffirm the validity of Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), which was cited with approval in Twombly, 550 U.S. at 556, 127 S.Ct. 1955, indicates that in many straightforward cases, it will not be any more difficult today for a plaintiff to meet that burden than it was before the Court's recent decisions. A plaintiff who believes that she has been passed over for a promotion because of her sex will be able to plead that she was employed by Company X, that a promotion was offered, that she applied and was qualified for it, and that the job went to someone else. That is an entirely plausible scenario, whether or not it describes what "really" went on in this plaintiff's case. A more complex case involving financial derivatives, or tax fraud that the parties tried hard to conceal, or antitrust violations, will require more detail, both to give the opposing party notice of what the case is all about and to show how, in the plaintiff's mind at least, the dots should be connected. Finally, as the Supreme Court warned in Iqbal and as we acknowledged later in Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009), "abstract recitations of the elements of a cause of action or conclusory legal statements," 578 F.3d at 581, do nothing to distinguish the particular case that is before the court from every other hypothetically possible case in that field of law. Such statements therefore do not add to the notice that Rule 8 demands.
We realize that one powerful reason that lies behind the Supreme Court's concern about, pleading standards is the cost of the discovery that will follow in any case that survives a motion to dismiss on the pleadings. The costs of discovery are often asymmetric, as the dissent points out, and one way to rein them in would be to make it more difficult to earn the right to engage in discovery. That is just what the Court did, by interring the rule that a complaint could go forward if any set of facts at all could be imagined, consistent with the statements in the complaint, that would permit the pleader to obtain relief. Too much chaff was moving ahead with the wheat. But, in other contexts, the Supreme Court has drawn a careful line between those things that can be accomplished by judicial interpretation and those that should be handled through the procedures set up in the Rules Enabling Act, 28 U.S.C. § 2071 et seq. See Mohawk Indus., Inc. v. Carpenter, ___ U.S. ___, 130 S.Ct. 599, 609, 175 L.Ed.2d 458 (2009). In fact, the Judicial Conference's Advisory Committee on Civil Rules is engaged in an intensive study of pleading rules, discovery practice, and the costs of litigation, as its recent 2010 Civil Litigatiobelieve and I know that the facts that have been given to you support a conclusion that Monti Fleming is responsible for the death of Shawn Edward Powell. But it does not, and it cannot support a conclusion that it was premeditated, willful and deliberate.
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I ask that the fact that the jury instructions and the law in this State that has been given to you in the form of jury instructions, give to you what it is that ultimately your conclusion will be. And it is that there was a death; Monti Fleming was responsible for it, but it was not premeditated, willful or deliberate.
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[T]he facts in this case combined into law will allow you the benefit of making a very difficult decision, but the right decision.
And that is that Monti Fleming is not guilty of premeditated first-degree murder, but he is responsible for the death of Shawn Powell. Whether that's second degree murder or involuntary manslaughter will be within your decision and your domain.
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Although Monti Fleming at the age of fifteen did something that is regretful and terrible and tragic, he didn't willfully with deliberation and premeditation want to kill Shawn Powell, but unfortunately he did. For that he will be convicted of a crime. That crime should not be premeditated first-degree murder. Thank you."
Appellant was convicted of first-degree murder, use of a handgun in the commission of a crime of violence, and carrying a handgun. The court sentenced appellant to a term of life imprisonment, with all but fifty years suspended, on the first-degree murder count; a consecutive twenty-year term of incarceration, with all but five years suspended, for the use of a handgun in a violent felony; and a concurrent five-year term of incarceration for wearing and transporting a handgun. The court merged the remaining lesser-included offenses for sentencing purposes. Appellant filed a timely notice of appeal to this Court.
II.
We consider the issues presented by appellant in inverse order, and address first his argument that the trial court erred in not granting his motion for a mistrial when Detective Shaffer stated that she found State witnesses Shade and Starlette Webb "to be credible." Initially, we must address the State's contention that the matter has not been preserved for appellate review, because defense counsel refused the court's offer to provide a limiting or curative instruction.
When the circuit court declined to grant appellant's motion for a mistrial, it did so in the context of the following discussion:
[THE COURT]: So I would deny a mistrial at this time. I'd be happy to give a limiting instruction at this point or —
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[DEFENSE COUNSEL]: Excuse me, Your Honor. I don't think it will adequately address it. But in any event, for the record in the future, I'm not asking for [a] limiting instruction because I had requested, as well as the State, a credibility of witnesses instruction be presented. So, therefore, rather than highlight to the jurors at this time to a limiting instruction, I think the same information will be conveyed at a later time, and I'm not attempting to waive the issue I'm raising. Obviously, the court has denied a mistrial. The court has inquired whether or not I'd like a limiting instruction. I think a limiting instruction would only alert the jurors as to the information that I have moved for mistrial on, and in the event the appellate court believes that by not asking for a limited instruction, I've actually waived the issue and sort of eliminated my request for a mistrial, I want the record to adequately reflect that I
believe that the credibility of witness instruction . . . will be the same . . . information —
[THE COURT]: That will be given at the end.
[DEFENSE COUNSEL]: And so therefore, rather than having a limiting instruction at this time, the credibility of witness instruction will address my concerns rather than ask for a limiting instruction at this time.
The State maintains that because defense counsel strategically declined a "curative instruction," the issue is not preserved for appellate review. The State's view as to curative instructions and waiver is wrong. We hold that the issue is preserved for appellate review.
The Court of Appeals has addressed a parallel situation, and held that an objection to the admissibility of the contested evidence was not waived. The Court reasoned as follows:
"[W]e must consider the State's contention that the defendant waived the right to raise the issue of other crimes evidence because defense counsel refused the trial judge's offers to give a limiting instruction. The State argues that for strategic reasons defense counsel chose to `transform an adverse ruling that could have been given a limited effect into a general defeat in hopes of turning it to his advantage at triar or on appeal.'
We fail to see, however, how this decision not to accept the instruction constitutes a waiver. It was clear to defense counsel that the proposed instruction could have had the undesirable effect of highlighting the purposes suggested by the trial judge: intent, knowledge, common scheme, or explanation for not having pled guilty."
Terry v. State, 332 Md. 329, 333-34, 631 A.2d 424, 426 (1993) (emphasis added). A defendant is not required, as a matter of law, to agree to a limiting instruction at the risk of waiving an issue for appellate review. A trial court may, and sometimes should, give a curative instruction on its own. Each case will be reviewed on its own merit, but counsel's tactical decision to minimize the damage by avoiding emphasis of the statement will not be considered a waiver of the issue.
We turn now to the merits of the question whether the trial court abused its discretion in declining to grant a mistrial based on Det. Shaffer's statement that she found the Webb sisters to be "credible." A trial court may grant a mistrial where such a measure is "necessary to serve the ends of justice." Jones v. State, 310 Md. 569, 587, 530 A.2d 743, 752 (1987). The defendant bears the burden of showing that the prejudice arising from the trial court's error demands the declaration of a mistrial. Hunt v. State, 312 Md. 494, 503, 540 A.2d 1125, 1129 (1988). This Court reviews a trial court's decision to decline to grant a mistrial under an abuse of discretion standard. See Walker v. State, 373 Md. 360, 378, 818 A.2d 1078, 1088-89 (2003).
Appellant claims that the trial court erred in declining to grant a mistrial based upon Det. Shaffer's "bolstering" of two other State's witnesses, Shade and Starlette Webb, because her statement that she found the sisters to be "credible" invaded the exclusive role of the jury to determine the credibility of witnesses. Appellant argues that this experienced detective must have known better than to inject her own opinion as to witness credibility, and that it was probably a purposeful statement calculated to influence the jury.
The State argues that the detective's response was an appropriate one in light of the question asked, and that her statements were not calculated to "bolster" improperly the credibility of Shade and Starlette Webb. Therefore, the State argues, the trial court did not abuse its discretion in declining to grant a mistrial.
The detective's comment arose in the context of defense counsel probing the detective's reason for showing a single photograph, instead of a photographic array, to Shade and Starlette Webb. Her reason for showing a single photo was that she believed the witnesses knew appellant prior to the shooting incident. Counsel asked her the following question, eliciting the following response:
[DEFENSE COUNSEL]: And because they say [that they know the suspect], you just assume that they do, correct?
[DET. SHAFFER]: I found them to be credible.
Defense counsel objected immediately, arguing that Det. Shaffer's statement "bolstered" the credibility of Shade and Starlette Webb. The following discussion transpired:
[DEFENSE COUNSEL]: Your Honor, I'm going to' move for a mistrial based on this witness's response, which was an effort . . . it only required a yes or no answer. It didn't require a "I found her to be credible." And so as a result of her making an unsolicited effort to try to bolster the testimony of the State's witnesses, I'm moving for a mistrial, Your Honor.
[PROSECUTOR]: Certainly, the State would be opposed to that request, Your Honor. I would point out that the line of questioning was limited to the — as Detective Shaffer points out, the historical knowledge of the Defendant. She did not comment on the credibility of the witnesses as to the event that occurred.
[THE COURT]: Let me make sure — you're saying your basis is because of her comment that she found her to be a credible witness.
[DEFENSE COUNSEL]: She says the witnesses are credible.
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[THE COURT]: I mean, that certainly is I think permissible, putting it in context of what was being asked, I think that's an explanation that I think it can be cleared up. I'll give you the opportunity to clear it up. You can renew it if you feel it isn't done appropriately.
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[DEFENSE COUNSEL]: It's inconsistent with my request for a mistrial and, and ultimately the Court — I guess I first, would ask the Court to rule on my request for a mistrial.
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[PROSECUTOR]: Your Honor, I don't think that in any way it could be misconstrued that Detective Shaffer is vouching for the credibility of the information that was
provided to the jury during the course of this trial. Certainly, she didn't hear it and she wasn't in the courtroom. . . .
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[THE COURT]: I certainly agree. I mean, it was a response. Your question was basically don't . . . you typically think — if someone is going to be confused, you use a photo array and not show them [only] one [photo], and she's saying I didn't do it because of historic knowledge and I found her even to be credible. She may have used the word "witness" but I took it in the context of her response to the question as to why she didn't use the photo array.
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[THE COURT]: So I would deny a mistrial at this time. I'd be happy to give a limiting instruction at this point. . . .
The detective's response was an appropriate answer to the question propounded by defense counsel, and it does not appear to have been said with the intent to bolster the testimony of the Webb sisters. The detective explained why she showed the sisters only a single photo — because the sisters told her that they knew appellant, and the sisters' statements that they knew him were "credible" to her. Counsel asked her a question, and he received her answer. Counsel's predicament is the classic example of the old saying, "don't ask a question to which you do not know the answer." The trial court did not abuse its discretion in refusing to grant a mistrial.
III.
In appellant's view, the central issue in this case is the toolmark identification evidence. Such evidence is relevant, ordinarily, to connect a weapon, bullets and shell casings to a particular individual. The probative value of that evidence in this case is to establish that appellant was the person who fired the gun from which the fatal bullets were shot. The problem is that criminal agency was not a significant issue in the case, and any error related to the firearm toolmark testimony, if there was error, was harmless beyond a reasonable doubt.
Especially in light of defense counsel's closing argument, the criminal agency of appellant was no more than a technical issue, at best, in this case. The only issue the jury had to consider seriously, based on appellant's counsel's closing argument, was appellant's intent in firing the weapon, and not whether he in fact fired the gun. After a consideration of all of the evidence presented in the case, we hold that even assuming arguendo that the trial court erred in either admitting the expert testimony, or in limiting the cross-examination of the experts, any such error was harmless beyond a reasonable doubt.
Where a trial court errs by admitting inadmissible evidence, the error may, but will not necessarily, result in a reversal of a resulting conviction. See Moore v. State, 413 Md. 635, 666, 989 A.3d 1150, 1167 (2010) (stating that "not every error committed during a trial is reversible error."). The Court of Appeals set forth the standard for making this determination as follows:
"[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed `harmless' and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict."
Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976);
See also Parker v. State, 408 Md. 428, 446, 970 A.2d 320, 331 (2009). In other words, "[t]o say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record."
Bellamy v. State, 403 Md. 308, 332, 941 A.2d 1107, 1121 (2008).
Although providing a full opportunity for cross-examination is the principal means of implementing a criminal defendant's constitutional right of confrontation, errors in defining the scope of cross-examination are subject to harmless error review. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986) (stating that "the correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt."); Owens v. State, 161 Md. App. 91, 111-12, 867 A.2d 334, 345-46 (2005) (stating that "if the examination was erroneously restricted, we then apply a harmless error standard of review.").
The firearm toolmark identification testimony in this case was icing on the State's cake, and without that evidence, the jury would have had no problem concluding that appellant fired the fatal shots that killed Shawn Powell. As to the limitation on cross-examination of the experts, the best appellant could have achieved by cross-examining the State's witnesses about the CMS method was to show that there are valid concerns about the subjectivity of traditional firearms identification evidence, and that there is an emerging, but not generally accepted branch of the discipline that aspires to greater objectivity.
The State presented three eyewitnesses to the shooting, each of whom positively identified appellant. Two of the three, Shade and Starlette Webb, testified that they knew appellant prior to the shooting incident; the other, Kanise Lewis, identified him from a photographic array three days after the shooting. All three witnesses testified to seeing or hearing appellant hit Shawn Powell in the head with a bottle, and all three testified to witnessing appellant shoot in the direction of Powell, who was by that time walking or running away. Their descriptions of this event are consistent with Shawn Powell's fatal injury, which was a gunshot wound to the back.
The geographic point in the Barnside neighborhood from which the witnesses claimed to have watched appellant shoot at Shawn Powell is located a distance of yards from where Shawn Powell was found dead at 8:00 a.m. the following day. As James Roeder testified, a trail of blood droplets attributed by DNA analysis to Shawn Powell linked the approximate area in which he was seen when he was running from appellant, with the yard where he was found dead.
The testimony of appellant's step-grandfather, Willie Brown, was that appellant brought him a handgun for him to store or sell within three days after the shooting. The recovered .380 caliber handgun was capable of firing .380 caliber rounds, casings for which were located around the area from which appellant fired at Shawn Powell. Appellant's delivery of a gun, three days after the fatal shooting, is additional circumstantial evidence of guilt.
In sum, the State's eyewitness testimony in this case was overwhelming, and defense counsel conceded that appellant fired the weapon and caused Shawn Powell's death. In addition, the weapon was linked to appellant through appellant's step-grandfather. We hold that even assuming error in admitting the firearm testimony or limiting the cross-examination, any error was harmless beyond a reasonable doubt.
IV.
So there is no misunderstanding, even if the admission of the State's firearm expert testimony was not harmless, we would hold that the trial court did not err. We have not been directed to any court in the country which has excluded such testimony.
Appellant argues that the firearms identification expert witness testimony was admitted improperly under Frye-Reed, because the methodology the State used, traditional comparative microscopy, is no longer "generally accepted as reliable" in the field, particularly in light of the advent of the CMS method.
The State argues that the firearms toolmark testimony was admitted properly under Frye-Reed, because the expert witnesses used the method traditionally used in Maryland, by both the Maryland State Police and the forensic laboratories located in Maryland. The State argues further that its reliability has been judicially noticed in Maryland.
The admissibility of expert testimony concerning scientific or forensic evidence is governed in Maryland by the Frye-Reed standard, which provides that scientific techniques can be admissible if they are "generally accepted" in the scientific community. See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (holding that with respect to scientific evidence, "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."). The Frye standard was adopted in Maryland in Reed v. State, 283 Md. 374, 389, 391 A.2d 364, 372 (1978) (discussing the policy considerations behind the "general acceptance" requirement, and concluding that "[f]or the foregoing reasons, we agree with the `general acceptance' rule which the Frye case sets forth."). The Court of Appeals has encapsulated the standard as follows:
"Where the validity and reliability is so broadly and generally accepted within the scientific community, as is the case of ballistics tests, blood tests, and the like, a trial court may take judicial notice of its reliability. Likewise, a court may take judicial notice that certain procedures, widely recognized as bogus or experimental, are unreliable."
Clemons v. State, 392 Md. 339, 363-64, 896 A.2d 1059, 1073 (2006). This Court reviews de novo the admission of expert evidence under
Frye-Reed. See id. at 359,
896 A.2d at 1071;
Wilson v. State, 370 Md. 191, 201 n. 5,
803 A.2d 1034, 1040 (2002).
Firearms toolmark identification is the practice of investigating whether a bullet, cartridge case or other ammunition component or fragment can be traced to a particular suspect weapon. The "leading proponent" of the evidentiary use of firearm toolmark examination, and of the traditional comparative matching method in particular, is an organization called the Association of Firearm and Toolmark Examiners (hereinafter "AFTE"). See United States v. Willock, 696 F.Supp.2d 536, 553 n. 7 (D.Md. 2010).
This discipline is widely referred to as "ballistics," but this term has been described as a misnomer:
"Although this subject is popularly known as "ballistics," that term is not correct. Ballistics is the study of the motion of a projectile. Interior ballistics concerns the study of the projectile within the firearm; and terminal (wound) ballistics concerns the study of the effects of the projectile on the target. Firearms identification does not directly involve ballistics."
P. GIANNELLI E. IMWINKELRIED, SCIENTIFIC EVIDENCE § 14.01, at 707 (4th ed. 2007).
In United States v. Willock, 696 F.Supp.2d 536 (D.Md. 2010), the United States District Court for the District of Maryland adopted in full a Report and Recommendation issued by Chief Magistrate Judge for the United States District Court for the District of Maryland Paul W. Grimm, as to the admissibility of firearms toolmark evidence in the complex, multiple-defendant criminal case pending before the district court. All citations to Willock refer to Judge Grimm's Report and Recommendation as adopted in that case.
The technique of firearms identification the State's witnesses applied in the case at bar is known as comparative microscopic matching. It consists of attempting to identify the "toolmarks" impressed upon the bullet fragments and cartridge casings often recovered from a crime scene, in an effort to determine whether the toolmarks impressed upon the evidence could have been created by a firearm that has been connected to a suspect. Toolmarks can be created by the "lands," or the raised parts in between the grooves of the rifling inside of a gun barrel, which "bite" into the surface of the bullet as it travels through the barrel. GIANNELLI IMWINKELRIED, SCIENTIFIC EVIDENCE § 14.02, at 708. Tool-marks are also created on the cartridge casing by pressurized impact, which is caused by the breech face, firing pin, or the casing ejector. Id. § 14.02, at 717.
Generally, firearm toolmarks can be divided into three types of characteristics: class, subclass, and individual characteristics. See Willock, 696 F.Supp.2d at 557-58. Chief Magistrate Judge Paul W. Grimm summarized the classification of tool-marks for firearms identification analysis purposes, as follows:
"Class characteristics are `family resemblances which will be present in all weapons of the same make and model.' [
United States v. Monteiro, 407 F.Supp.2d 351, 360 (D.Mass. 2006).] Examples of class characteristics include the bullet's weight and caliber; number and width of the lands and grooves in the gun's barrel; and the `twist' (direction of turn, i.e., clockwise or counterclockwise, of the rifling in the barrel).
Diaz, [
2007 WL 485967, at *1] 2007 U.S. Dist. LEXIS 13152, at *2. Class characteristics that cause tool-marks on spent cartridge casings include the `caliber, type of breech face, and type of firing pin.'
Id. A breech face may be `parallel, arched, smooth, granular, or circular,' and a firing pin can leave an impression that is `circular, rectangular, [or] elliptical.'
Id.
Subclass characteristics `are produced incidental to manufacture' and `can arise from a source which changes over time,' and therefore `may be present on a group of guns within a certain make or model, such as those manufactured at a particular time and place.'
Monteiro, 407 F.Supp.2d at 360;
see [NATIONAL RESEARCH COUNCIL, NRC BALLISTIC IMAGING REPORT, p. 31 (National Academies Press 2008)] (defining subclass characteristics as having three characteristics: they are `[p]roduced incidental to manufacture'; (2) `they relate to a small group source,' Le., `a subset of the class to which they belong'; and (3) they `[c]an arise from a source which changes over time'). An example would include imperfections `on a rifling tool that imparts similar toolmarks on a number of barrels before being modified either through use or refinishing.' Ronald G. Nichols,
Defending the Scientific Foundations of the Firearms and Tool Mark Identification Discipline: Responding to Recent Challenges, 52 J. FORENSIC SCI. 586, 587 (2007).
Individual characteristics are `[r]andom imperfections produced during manufacture or caused by accidental damage . . . which are unique to that object and
all others.'
Monteiro, 407 F.Supp.2d at 360. However, non-unique marks may comprise individual characteristics, and wear and tear cause individual characteristics to change over time to some extent. Thus, the toolmarks made on a bullet or cartridge casing include marks imposed by all weapons of the make and model that fired the ammunition (class characteristics), marks common only to a subset of that make and model (subclass characteristics), and marks unique to the weapon that fired the ammunition (individual characteristics).
Id."
Id. (some internal citations omitted). The random imperfections in the bore of the firearm are theoretically unique to each firearm, and "the probability that another firearm would have identical bore imperfections is considered so remote that firearms identification examiners often conclude that a bullet has been fired from a particular firearm and could not have been fired by any other firearm." GIANNELLI IMWINKELRIED, SCIENTIFIC EVIDENCE § 14.03, at 713.
In making the inquiry into the similarity or near-identity of toolmarks, a trained firearm toolmark examiner uses a "comparison microscope" to compare spent ammunition components recovered from a crime scene with ammunition components fired from the candidate firearm. Monteiro, 407 F.Supp.2d at 359. The beliefs which legitimize the examinations have been described as follows:
"The theory underlying firearm toolmark identification rests upon two propositions: (1) class and microscopic marks imparted to objects by different tools will rarely, if ever, display agreement sufficient to lead a qualified examiner to conclude the objects were marked by the same tool and hence a qualified examiner will rarely commit a false positive error (misidentification); and (2) most manufacturing processes involve the transfer of rapidly changing or random microscopic marks onto barrel bores, breech faces, and firing pins, thus providing firearms with distinctly unique toolmarks, which can be identified and matched by a trained examiner."
United States v. Natson, 469 F.Supp.2d 1253, 1260 (M.D.Ga. 2007).
Ultimately, the determination of whether a potential "match" exists is made by a trained examiner using a split-screen microscope to simultaneously compare the toolmarks on the crime scene evidence against the toolmarks produced by a test round fired by the subject firearm. Crucially, this is acknowledged to be a subjective determination. See Monteiro, 407 F.Supp.2d at 355 (quoting ASSOCIATION OF FIREARM AND TOOLMARK EXAMINERS, Theory of Identification as it Relates to Toolmarks, 30 AFTE J. 86, 86 (1998), for the proposition that the AFTE acknowledges that "[c]urrently the interpretation of individualization/identification is subjective in nature."); GIANNELLI IMWINKELRIED, SCIENTIFIC EVIDENCE § 14.03, at 714 (stating that "the examiner's conclusion is essentially a subjective judgment."); see also Willock, 696 F.Supp.2d at 560-61; United States v. Glynn, 578 F.Supp.2d 567, 572 (S.D.N.Y. 2008).
The use of toolmark identification evidence has drawn scrutiny in recent years, and the argument appellant makes before this Court is characteristic of similar challenges occurring throughout the country. See Willock, 696 F.Supp.2d at 551 (noting that Professor Adina Schwartz has "testified at hearings and provided affidavits in numerous cases" concerning the admissibility of toolmark evidence, and citing examples of her participation in cases in California, Massachusetts, New Mexico, and New York). Congress commissioned a study of forensics evidence generally, which was published by the National Research Council in 2009. See NATIONAL RESEARCH COUNCIL, COMMITTEE ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE COMMUNITY, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD (National Academies Press 2009) (hereinafter "NRC Report"). With respect to toolmark analysis, the NRC Report concluded, "[b]ecause not enough is known about the variabilities among individual tools and guns, we are not able to specify how many points of similarity are necessary for a given level of confidence in the result. . . . additional studies should be performed to make the process of individualization more precise and repeatable." Id. at 154.
Although firearms identification testimony has remained widely admissible in the face of recent challenges, courts have expressed their reservation's, sometimes strongly. See, e.g., United States v. Glynn, 578 F.Supp.2d at 574 (stating that "ballistics examination not only lacks the rigor of science but suffers from greater uncertainty than many other kinds of forensic evidence. Yet its methodology has garnered sufficient empirical support as to warrant its admissibility."); United States v. Green, 405 F.Supp.2d 104, 109 (D.Mass. 2005) (stating, "I reluctantly come to the . . . conclusion [that firearm toolmark evidence is admissible] because of my confidence that any other decision will be rejected by appellate courts . . . [but] the more courts admit this type of toolmark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require more.").
The consecutive matching striae method of toolmark analysis can be viewed as either a supplement or an alternative to the traditional method of toolmark examination. Proponents of the CMS technique fault the traditional comparative microscopy technique for the inherent subjectivity of the examiner's ultimate determination. The CMS method, which can be used only on projectile remnants, calls for the examiner to consider the number of consecutive matching striae, or "scratches" appearing on a projectile fragment. The theory provides that a positive "match" determination can be made only when a certain, statistically established number of striae match. See Monteiro, 407 F.Supp.2d at 370 (explaining that "correspondence between one 6-line run of striae or two 3-line runs of striae permits an identification."). The CMS method thus endeavors to inject a greater degree of objective certainty into toolmark and firearm analysis.
While some proponents of CMS cast it as a wholesale improvement upon traditional comparative microscopy, this emergent firearms toolmark analysis method is not free from criticism. For instance, Professor Schwartz, herself a leading proponent of CMS, illuminated the shortcomings of the CMS method in an affidavit filed in the United States District Court for the District of Maryland, in connection with a recent case which challenged the use of firearms identification evidence more generally. Judge Grimm summarized the contents of her affidavit in relevant part as follows:
"25. CMS, though better than the traditional subjective approach to toolmark identification, is nonetheless a `highly imperfect attempt to incorporate statistical empirical data into toolmark identifications.'
26. There are questions regarding whether the CMS criteria were derived from databases that are relevant to and representative of firearm toolmarks.
27. CMS may not be a more objective method of toolmark identification, but rather a way for examiners to describe their subjective observations when comparing striated tool-marks.
28. Some argue that CMS is subjective because it essentially amounts to line-counting."
Willock, 696 F.Supp.2d at 553 (internal citations omitted). The report adopted in
Willock went on to explain as follows:
"CMS analysis has yet to be adopted by a majority of toolmark examiners. . . . `Although CMS is a widely accepted protocol which has been scientifically validated, it is not the predominant standard in the field according to AFTE.'
Id. Further, `[t]o the critics, CMS necessarily involves some subjectivity' because an examiner must `count points of identification and . . . different examiners might count points differently.'
Diaz, [
2007 WL 485967, at *12] 2007 U.S. Dist. LEXIS 13152, [at *37]."
Id. at 561.
Having considered the attributes of traditional microscopy as described above, and having considered the comparative virtues of the CMS method, if the issue was material to the case, we would hold that the trial court did not err in admitting evidence derived through the traditional comparative microscopic pattern matching technique. The Court of Appeals has approved the admissibility of traditional firearms identification evidence under Frye-Reed; indeed, Reed v. State referred to "ballistics" as an example of a discipline for which "the validity and reliability is so broadly and generally accepted" that under the Frye-Reed standard, "a trial court may take judicial notice of its reliability." Reed v. State, 283 Md. at 380, 391 A.2d at 367. Although Reed was decided over thirty years ago, notwithstanding the current debate on the issue, courts have consistently found the traditional method to be generally accepted within the scientific community, and to be reliable.
Our view is consistent with recent federal precedent in courts around the country, as well as in the United States District Court for the District of Maryland. For instance, in United States v. Williams, 506 F.3d 151, 161 (2d Cir. 2007), the United States Court of Appeals for the Second Circuit held that the federal Daubert test was met as to firearms identification evidence even where the trial court denied the defendant's request for a hearing on the matter. The appeals court noted with approval that the trial court had considered another case, United States v. Santiago, 199 F.Supp.2d 101, 111-12 (S.D.N.Y. 2002), which rejected a challenge to the admissibility of firearms identification evidence which characterized such evidence as a "pseudo-science." Id. A recent example from the United States District Court for the District of Maryland is Willock, 696 F.Supp.2d at 571, in which Judge Grimm discussed the limitations of traditional toolmark microscopic matching, but concluded, "I find that, despite its inherent subjectivity, the [Association of Firearm and Toolmark Examiners] theory of firearms-related toolmark identification . . . has been generally accepted within the field of toolmark examiners. . . ." See also United States v. Foster, 300 F.Supp.2d 375, 377 n. 1 (D.Md. 2004) (stating that "ballistics evidence has been accepted in criminal cases for many years, [and that in] the years since Daubert, numerous cases have confirmed the reliability of ballistics identification.").
The admissibility in federal courts of scientific evidence is determined under a different standard than that applied in Maryland courts. The federal test is derived from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 V.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Nonetheless, the Court of Appeals has considered federal Daubert inquiries to be instructive, although certainly not dispositive, for purposes of admissibility in Maryland courts. See, e.g., Blackwell v. Wyeth, 408 Md. 575, 605 n. 19, 971 A.2d 235, 253 (2009), which stated as follows:
"[V]arious federal courts have had occasion to scrutinize the reliability of the analytical framework utilized by an expert in formulating a novel theory of science, and to them we turn, recognizing that they utilized the
Daubert standard rather than
Frye. We explore what they have opined, nevertheless, when they are speaking about reliability."
Judge Grimm noted that "every federal court to have examined the issue in a written opinion (albeit with considerable differences in the amount of detail in the analysis) — [has] concluded that it is sufficiently plausible, relevant, and helpful to the jury to be admitted in some form." Willock, 696 F.Supp.2d at 568.
Appellant submits CMS as an alternative or supplement to the traditional comparative microscopy method, but the existence of an alternative, even one which aspires to improve upon the shortcomings of its forebear, does not undermine the generally accepted nature of the traditional method. Accordingly, in rendering its decision in the case at bar, the trial court noted correctly that the alternative method proposed by appellant was not truly an alternative, but rather an emerging refinement of the same technique. The trial court stated as follows:
"It is enough to state that CMS is not a new technique, nor in conflict with the traditional pattern matching that has been characterized as the discipline from the earliest of times. It is simply an extension. . . ."
Judge Grimm's opinion in Willock, 696 F.Supp.2d 536, relied in part on the unpublished opinion of the Federal District Court for the Northern District of California, United States v. Diaz, No. CR 05-00167 WHA, 2007 WL 485967, 2007 U.S. Dist. LEXIS 13152 (N.D.Cal. Feb. 12, 2007). The Diaz court addressed the issue presented by CMS in the following discussion:
"By arguing in favor of CMS, the defense wants something that is beyond the state of the art. The holy grail of some in the profession is to find some way to impose upon firearms identification a statistical model to present to juries. It would be an improvement if that could be done. But the fact that CMS — the closest the field has come to a probabilistic model — has not been accepted does not mean that the existing system is not reliable."
Id. at *13, 2007 U.S. Dist. LEXIS 13152, at *7. The Diaz court held that the comparative microscopic matching method satisfied Daubert, and declined to require the use of the CMS method as a prerequisite to admissibility. Id.
Moreover, the court noted the testimony during the hearing which suggested that the advent of CMS had not undermined the "generally accepted" nature of traditional comparative microscopy, stating as follows:
"[State expert witness Michael Nickol], himself a CMS proponent, disagreed with some of Schwartz's assessment that the field is in turmoil due to the development of CMS. Nickol[] explained that all firearm examiners start their process by looking for patterns that match under the comparison microscope [P]lus the field was not divided because CMS and traditional pattern matching were not mutually exclusive."
The trial court considered scientific literature as well as the testimony of the State's expert witnesses, and concluded that the comparative microscopic matching technique meets the Frye-Reed standard, stating as follows:
"The court finds here that the State has met its burden of proof of showing that the traditional pattern matching for determining forensic firearm analysis employed by the Maryland State Police is generally accepted in the relevant scientific community and is used almost exclusively in forensic laboratories in Maryland."
Were we to consider on the merits appellant's argument that traditional firearm toolmark pattern comparison no longer is accepted within the scientific community, we would conclude that the trial court did not err in admitting the expert testimony using the traditional comparative microscopy method.
JUDGMENTS OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.