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Massie v. State5/26/1998
on, and his experience, Kercheval testified, over objection, that the earliest possible time of death was approximately 11:15 in the morning. The Court of Special Appeals sustained admitting this opinion as an application of Maryland Evidence Rule 5-702, dealing with testimony by experts.
In this Court Massie argues that admitting the disputed violated Maryland Evidence Rule 5-701, dealing with opinion testimony by lay witnesses. Because the trial court ruled that Kercheval was not an expert in pathology, Massie concludes that the disputed could not have been admitted under Rule 5-702 and therefore must have been admitted under Rule 5-701. Massie next submits that the disputed opinion was not based on "the perception of the witness." Md. Evid. R. 5-701; see Robinson v. State, 348 Md. 104, 121-27, 702 A.2d 741, 748-52 (1997) (analyzing lay opinion testimony where "'the lay trier of facts lacks the knowledge or skill to draw the proper inferences from the underlying data.'"). Because Kercheval did not personally observe Mrs. Massie at 11:15 a.m. on February 14, 1995, Massie submits that Kercheval's opinion that she might have been dead at that time is inadmissible under Rule 5-701.
The State, on the other hand, submits that Kercheval's opinion was admissible under either Rule 5-701 or 5-702. As we analyze the record, the disputed opinion was admissible under Rule 5-702, dealing with expert testimony, so that we need not decide whether the testimony might also have been admissible under Rule 5-701.
The distinction that the circuit court attempted to make between an opinion on the time of death and an opinion that states the outer and inner limits of a range of time during which death might have occurred is a distinction without any substantial difference. Opinions as to the time of death ordinarily do not purport to be precise, but those opinions almost universally are estimates with varying amounts of leeway. See Wiggins v. State, 324 Md. 551, 570, 597 A.2d 1359, 1368 (1991) ("As the trial court noted, and the record indicates, medical testimony regarding time of death is fraught with uncertainty."). It has been said that "most forensic pathologists argue that the only way to fix an accurate time of death is with a reliable witness who can say exactly when the victim took the last breath." R. Taylor, R. Bux, & D. Kirk, Forensic Pathology in Homicide Cases, 40 Am. Jur. Trials 501, 544 (1990). Although the trial court did not articulate its ultimate analysis as a change of position, as we read the record the trial court changed its mind and essentially concluded that what amounted to an opinion on the time of death was not exclusively a medical question that could be answered, on the facts presented here, only by a licensed physician. In other words, if the trial court's initial ruling was its only permissible exercise of discretion, then the change of position admitting the disputed opinion is a basis for reversal. Conversely, if the changed position of the trial court admitting the opinion was within its discretion, then there is no basis for reversal.
Existing Maryland law gives little guidance on whether a non-physician can opine on the time of death. In New York Life Ins. Co. v. Rogers, 156 Md. 88, 143 A. 651 (1928), the question was whether the insured under a life insurance policy had drowned before the policy was issued. Delivery of the policy occurred on May 21, 1927, and the insured's body was found in the Baltimore Harbor on May 26, 1927. The insurer attempted to establish through the undertaker who had examined the insured's body the probable length of time that the body had been in the water. This Court sustained the trial court's rejection of the proffered
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