Case Update: Muldrow v. State.

By Carrie Williams

On December 6, 2023, the Appellate Court of Maryland held that a trial court: 1) must voir dire the jury regarding bias against sexual orientation where it is likely to be an issue in the case; and 2) that a trial court must consider whether expert testimony is admissible under Daubert even where the testimony involves a “widely accepted” methodology. See Albert M. Muldrow, Jr. v. Maryland, _____ Md. App. ____, No. 1898, Sept. Term, 2021 (filed Dec. 6, 2023) (Getty, J.).

Albert Muldrow was convicted of the murder of Martino Duffin. The evidence against Muldrow included surveillance video that showed Muldrow leaving Duffin’s apartment building near the time of the murder, a serologist’s phenolphthalein test that indicated “possible blood” on Muldrow’s shoes and Duffin’s DNA on those same shoes. Muldrow’s statement to police was also played for the jury. He told the police that he met Duffin on a chat line and had gone to his apartment and had sex with him in a “one-night stand.” Muldrow denied killing Duffin and said Duffin was alive when he left the apartment.

On appeal, Muldrow raised several issues including the court’s refusal to ask voir dire questions aimed at ferreting out bias against gay men and refusing to hold a Daubert hearing on the admissibility of the phenolphthalein test. The Appellate Court of Maryland held that the court erred in refusing to ask whether any potential jurors harbored bias against gay men and erred in refusing to rule on whether the serologist’s methodology in performing the phenolphthalein test was reliable. The court did not address the remaining issues.

Voir Dire

During voir dire, the court denied Muldrow’s request to inquire whether any potential jurors were prejudiced against gay men or had strong negative feelings about sexual encounters between men. After reviewing case law from across the country addressing this issue, the Appellate Court held that “where the evidence presented may arouse bias against homosexuality among the jurors, and the court is aware of this possibility, it must inquire with the jury pool about such bias.” Where the case does not implicate the sexual orientation of a defendant or witness, however, there’s no need to ask about potential bias on that basis. Because the evidence in this case included a recording of Muldrow’s interrogation, in which Muldrow discussed the details of his “one night stand” with the victim, the Court held that this case was one where a juror’s potential bias against gay men was relevant. The trial court was aware of the evidence to be admitted, so it was an abuse of discretion not to ask voir dire questions designed to weed out jurors who are biased against gay men, the Court held.

The Court did not conduct a harmless error analysis on the voir dire issue because “there is no way to guarantee” that Muldrow was convicted by an unbiased jury. Accordingly, it was impossible for the State to prove beyond a reasonable doubt that the error did not affect the verdict.

Daubert Motion

Prior to trial, Muldrow moved to exclude the serologist’s testimony about the phenolphthalein test and the results. The State opposed, claiming that the test, which has been used since the early 1900s, was widely accepted and the serologist’s testimony was, therefore, admissible. The circuit court denied Muldrow’s motion without a hearing.

The Appellate Court “assumed without deciding” that the phenolphthalein test was “valid and accepted” within the scientific community. Unlike the Frye/Reed test, however, under Daubert that is not the end of the inquiry. The Court reiterated that “even ‘widely accepted’ methodologies can be performed in a manner that render them unreliable.” Thus, the circuit court must “carefully consider” the Daubert factors when determining reliability and admissibility of any challenged expert testimony, even one that involves a widely accepted and valid methodology. While a hearing is not required, the Court said, one might be “especially useful or necessary” when a party raises a “genuine dispute” over whether an otherwise reliable methodology was performed in an unreliable way,           

The Court made clear that it was not offering an opinion on whether the phenolphthalein test evidence should be admitted at Muldrow’s new trial. But, the court said, if on remand Muldrow raised “a genuine argument that the State’s phenolphthalein test was performed in a manner that could render its conclusions unreliable,” the circuit court should hold a Daubert hearing to determine admissibility.