A Maryland appeals court overturned a first-degree murder conviction Wednesday, saying a damning, anonymous 911 call that described the shooting at a northern Baltimore intersection should not have been admitted into evidence.
The intermediate Court of Special Appeals also said Delvonta Morten’s defense attorney should have been given a greater opportunity to challenge the reliability of the state’s DNA evidence that purportedly linked the defendant to the gun used to kill Kevin Cannady in 2015.
In its reported 3-0 decision, the appellate court said the unknown caller’s after-the-fact account of Cannady’s killing constituted hearsay, which should have been deemed inadmissible in the case because the narrative was neither a reflexive, excited utterance nor a present-sense impression of the harrowing event as it happened.
Rather, the recorded emergency message wrongfully played in court for the jury was a calm retelling of what had allegedly happened about a half hour earlier at the corner of Cordelia Avenue and Reisterstown Road in the late afternoon of Sept. 21, 2015, the court said in vacating the Baltimore City Circuit Court jurors’ verdict that Morten had fired the single, fatal shot into the back of Cannady’s neck.
Morten was sentenced to life in prison plus 35 years.
“The decision to call 911 and make a report to the police was a conscious and reflective choice of a good citizen to help the police solve a crime,” Judge Charles E. Moylan Jr. wrote for the appellate court. “It was not an uncontrolled emotional spasm in response to overpowering excitement.”
Specifically, the Court of Special Appeals noted the caller’s use of the past tense – in recounting how she had “heard a shot and then … saw them running” – rather than the present tense necessary for the reliability of an excited utterance or present-sense impression.
“The very subject matter of the (caller’s message) was not, as a true Excited Utterance is supposed to be, a description of the exciting event and of the declarant’s unreflective response to the emotional trauma of the excitement,” wrote Moylan, a retired judge sitting by special assignment.
“It was a cool and controlled narrative,” he added. “This report was an admirably unexcited utterance.”
The strength of the state’s DNA evidence purportedly linking Morten to the gun came down to a battle of experts at trial: The state presented Thomas Heibert, the Baltimore City Police Department’s DNA analyst, and the defense put forth Charlotte Word, a molecular biologist and immunologist with 25 years’ experience in DNA identification testing.
In its review of the trial, the Court of Special Appeals said the judge had “hamstrung” the defense’s challenge to the test’s reliability by unfairly limiting Word’s testimony and counsel’s closing arguments to the jury.
“Defense counsel could argue reliability, but defense counsel could only argue the limited evidence that Dr. Word had been permitted to offer,” Moylan wrote. “Defense counsel may have been permitted to fire away rhetorically, but the defense arsenal was effectively bereft of ammunition. We hold that the appellant (Morten) was at two or three critical junctions erroneously prohibited from challenging the TrueAllele (DNA) test results that linked him to the ostensible murder weapon.”
The Maryland Attorney General’s Office said in a statement Thursday that it was reviewing the Court of Special Appeals’ decision.
Morten’s appellate attorney, Assistant Maryland Public Defender Kiran Iyer, declined to comment on the ruling.
The police investigation of Cannady’s slaying on a Baltimore street corner in broad daylight was featured in a five-part Baltimore Sun series, “Chasing a Killer,” in December 2015.
Moylan was joined in the opinion by Judges Dan Friedman and Donald E. Beachley.
The Court of Special Appeals rendered its decision in Delvonta Morten v. State of Maryland, No. 215, September Term 2017.