Ronnie Lee Rainey, Sr. v. State of Maryland, No. 1938, September Term, 2017, filed May 

4, 2020. Opinion by Thieme, J.

CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION 

CLAUSE — “TESTIMONIAL HEARSAY” — Crawford v. Washington, 541 U.S. 36 

(2004): In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the

Confrontation Clause generally bars the introduction into evidence, at a criminal trial, of 

“testimonial hearsay,” unless the defendant had a prior opportunity to cross-examine the 

declarant, and the declarant was presently unavailable to testify.

CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION 

CLAUSE — “PRIMARY PURPOSE” TEST: Statements are testimonial when the 

circumstances objectively indicate that there is no ongoing emergency, and that the 

“primary purpose” of the interrogation is to establish or prove past events potentially 

relevant to later criminal prosecution. Statements made in the absence of any 

interrogation, moreover, are not necessarily nontestimonial.

CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION 

CLAUSE — “PRIMARY PURPOSE” TEST AS APPLIED TO SCIENTIFIC AND 

FORENSIC REPORTS — Williams v. Illinois, 567 U.S. 50 (2012): The Supreme 

Court is sharply divided as to how Crawford should apply to the admissibility, at a 

criminal trial, of scientific and forensic reports, and of expert testimony derived, in whole 

or in part, from statements contained in such reports. The fractured 4-1-4 decision in 

Williams v. Illinois, 567 U.S. 50 (2012), resulted in three different tests for determining 

whether a scientific or forensic report is “testimonial.”

CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION 

CLAUSE — “PRIMARY PURPOSE” TEST AS APPLIED TO SCIENTIFIC AND 

FORENSIC REPORTS — State v. Norton, 443 Md. 517 (2015): The Court of 

Appeals has interpreted Williams as mandating a two-stage inquiry in determining 

whether scientific and forensic reports are “testimonial”: first, whether the statements at 

issue in such a report satisfy the basic evidentiary purpose test espoused by Justice Kagan 

in her dissenting opinion; and second, if so, whether those statements satisfy either the 

formality test advanced by Justice Thomas, in his concurring opinion, or the targeted 

accusation test proposed by Justice Alito, in his plurality opinion. Only if the statements 

at issue satisfy both prongs are they deemed “testimonial.”

CRIMINAL PROCEDURE — SIXTH AMENDMENT — CONFRONTATION 

CLAUSE — RELATIONSHIP BETWEEN MARYLAND RULE 5-703 AND THE 

CONFRONTATION CLAUSE: Although the language of Rule 5-703 would suggest 

that a trial court may permit an expert witness to testify about testimonial statements of a 

non-testifying witness and, subject to a limiting instruction, disclose those statements to a 
jury, the Confrontation Clause takes precedence where the rule and the Constitution are 

in seeming conflict. Thus, the general rule governing the admissibility of expert 

testimony does not apply if the otherwise inadmissible evidence amounts to “testimonial 

hearsay,” nor is such evidence admissible only for the purpose of evaluating the validity 

and probative value of the expert’s opinion or inference, that is, for a purportedly 

non-hearsay purpose.
Circuit Court for Prince George’s County

Case No. CT-130879-X

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1938

September Term, 2017

ON MOTION FOR RECONSIDERATION

______________________________________

RONNIE LEE RAINEY, SR.

v.

STATE OF MARYLAND

______________________________________

Nazarian,

Arthur,

Thieme, Raymond G., Jr.

 (Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Thieme, J.

______________________________________

Filed: May 4, 2020
In a bifurcated proceeding, Ronnie Lee Rainey, Sr., appellant, pleaded guilty, in 

the Circuit Court for Prince George’s County, to facts constituting the actus reus of 

first-degree murder and related offenses,

1 but elected a jury trial on the issue of criminal 

responsibility. Thereafter, a jury found that, at the time of the offenses, Rainey was 

criminally responsible for them. After the court imposed a sentence of life imprisonment 

plus additional terms for the related offenses,2 Rainey noted this appeal, raising the 

following question:

Were Rainey’s constitutional rights violated when the circuit 

court permitted the State to introduce into evidence 

testimonial statements in the form of psychological test 

results of a non-testifying expert, through the testimony of 

another expert who did not perform the relevant 

psychological testing, and where Rainey had no opportunity 

to confront the non-testifying expert?

 

1 Rainey pleaded guilty to having committed the actus reus of every crime charged 

in a 14-count indictment. That indictment charged him with first- and second-degree 

murder of his wife, Lisa Rainey, as well as his stepdaughter, Arialle Shelton; attempted 

first- and second-degree murder, and first- and second-degree assault, of his son, Ronnie 

Lee Rainey, Jr.; first- and second-degree assault of Ms. Shelton’s friend, Kevin James; 

and four counts of use of a handgun in the commission of a crime of violence, one for 

each victim. 

2 The court imposed three concurrent life sentences for the first-degree murder of 

Lisa Rainey and Arialle Shelton, and the attempted first-degree murder of Ronnie Lee 

Rainey, Jr. In addition, it imposed a concurrent term of 25 years for the first-degree 

assault of Kevin James; as well as four concurrent terms of 20 years each for use of a 

handgun in the commission of a crime of violence. Remaining lesser included offenses 

were merged. 
2

Although we conclude that the circuit court erred in admitting into evidence the 

testimonial statements of a non-testifying expert, the resulting error was harmless, and we 

therefore affirm.

BACKGROUND

Rainey and his wife, Lisa Renee Rainey, were having marital difficulties. On 

Sunday, May 12, 2013, following a domestic dispute, Lisa Rainey, accompanied by her

children, Arialle Shelton (Rainey’s stepdaughter) and Ronnie Lee Rainey, Jr. (Rainey’s 

son, hereafter “R.J.”), left the family home in Laurel, Maryland and sought refuge in a

nearby hotel. 

The next morning, Rainey sent a text message to Lisa, informing her that he was 

leaving the family home. Believing that Rainey was not there, Lisa and her children 

returned home to pick up clothes for R.J. and to check on the family dog. As a 

precaution, Arialle called her friend, Kevin James, and asked him to meet them at the 

family home and verify that Rainey was not there.3 

James arrived first and, upon observing that Rainey’s car was not parked in front 

of the home, informed Arialle, by phone, that it was safe to proceed. He had second 

thoughts, however, and went to the back of the home, where he saw Rainey’s vehicle. 

James then ran towards Arialle and the other family members and warned them that 

“[s]omething [was] wrong” and that they should return to their vehicle, but his warning 

was too late—by then, Rainey had emerged from the house, brandishing a handgun. 

 

3

James was a police officer “working with the warrant unit.” He was not involved 

in the investigation of this case.
3

Rainey pointed the weapon at James while ordering the others to come inside the house. 

Rainey’s family members attempted to return to Arialle’s car, but Rainey turned and

pointed his gun at them and repeated his order that they come inside. Meanwhile, James

escaped by climbing over a fence.

Lisa, Arialle, and R.J. complied with Rainey’s order and entered the house. Once 

they were inside, Rainey ordered them into the living room. Lisa and Arialle sat down on 

a couch, and R.J. stood behind them. Rainey and Lisa then engaged in a “conversation” 

about the events of the preceding day. According to R.J., Rainey asked how was he 

“supposed to feel comfortable,” and Lisa explained why she had left and not immediately 

returned. Then, the “back and forth” concluded, and Rainey declared, “Before I lose 

y’all, I would rather just take y’all,” whereupon he shot and killed Lisa and Arialle and 

shot at R.J. but missed, striking his cap instead. R.J. fled out the back door and ran to a 

neighbor’s house. 

Just before 10:00 a.m. that morning, a Prince George’s County 911 dispatcher 

received a call, placed by Rainey, informing the dispatcher that he had just shot his wife 

and his stepdaughter and had attempted to shoot his son at their home. Rainey further 

told the dispatcher that he intended to shoot himself. 

Prince George’s County Police Officers responded to that call and created a 

perimeter around Rainey’s home. Rainey eventually surrendered, whereupon police 

officers entered the home and found Lisa Rainey and Arialle Shelton, in the living room, 

both deceased, with gunshot wounds to the head. 
4

Rainey was arrested and transported to the Criminal Investigation Division of the 

Prince George’s County Police Department. During that trip, he admitted that he had 

killed his wife and stepdaughter. Upon arriving at the police station, he was administered 

Miranda4advisements, and he thereafter gave a recorded statement, once again admitting 

that he had killed Lisa and Arialle. The police recovered Rainey’s cell phone and 

discovered a 28-minute-long message that Rainey had recorded the previous evening, 

stating that he would take Lisa and himself “out” before he would allow her to leave him. 

On June 4, 2013, an indictment was returned, in the Circuit Court for Prince 

George’s County, charging Rainey with first- and second-degree murder of both Lisa 

Rainey and Arialle Shelton; attempted first- and second-degree murder, and first- and 

second-degree assault, of Ronnie Lee Rainey, Jr.; first- and second-degree assault of 

Kevin James; and four counts of use of a handgun in the commission of a crime of 

violence, one for each victim. Ten days later, Rainey, through counsel, filed a motion 

seeking permission to be examined by a defense expert, Thomas Hyde, M.D., to 

determine whether he was competent to stand trial. That motion was granted, and, after 

Rainey had been examined by both Dr. Hyde and a State expert, a hearing was held, in 

February 2014, to determine whether he was competent to stand trial. The circuit court 

found that he was not and ordered that Rainey be committed to the Clifton T. Perkins 

Hospital Center. 

 

4 Miranda v. Arizona, 384 U.S. 436 (1966).
5

While at Perkins, Rainey “was referred for a psychological evaluation” to include 

“diagnostic clarification, personality functioning, and the presence or absence of 

psychotic symptoms and cognitive disabilities.” During that evaluation, Rainey was 

given several psychological tests: a “Structured Inventory of Malingered 

Symptomatology” (“SIMS”); a “Structured Interview of Reported Symptoms, 2nd 

Edition” (“SIRS-2”); a “Test of Memory Malingering” (“TOMM”); and a “Personality 

Assessment Inventory” (“PAI”). A report was prepared, dated November 20, 2014 and

signed by two psychologists, Aryeh Kanal, Psy.D., a psychology associate doctorate, and 

G.S. Marshall Cowan, III, Psy.D., the supervising psychologist. According to the report

(hereafter “Kanal report”), Rainey’s scores “varied” on tests of malingering, but, in the 

opinion of the authors, “it would appear that Mr. Rainey’s reported symptoms are in fact 

feigned or exaggerated, but that he is not likely to exaggerate psychotic or unusual 

symptoms in other domains of functioning.” 

Eventually, Rainey was found competent to stand trial. Then, in September 2015, 

Rainey, through counsel, filed a written plea of not criminally responsible. He ultimately 

reached a plea agreement, whereby he would plead to having committed the actus reus of 

every offense charged in the indictment, while reserving the issue of his criminal 

responsibility for a jury trial. 

In 2017, a five-day trial was held on the issue of criminal responsibility. The 

defense called two witnesses: Paul Smith, Rainey’s neighbor at the time of the killings; 

and Dr. Hyde, Rainey’s medical expert.
6

Smith, who lived across the street from Rainey, testified that, on May 11, 2013, 

two days before the killings, he had observed Rainey walking his dog. Shortly thereafter, 

he heard a “loud noise,” which he recognized was a lightning strike. Smith went outside 

to investigate whether there had been any damage to his property and discovered that a 

tree in his yard had been struck by lightning. Rainey was outside when Smith ventured 

out, and Smith spoke with him “briefly.” Although he did not notice “anything wrong 

with” Rainey, Smith testified that Rainey “might have mentioned that he was struck, but 

he [couldn’t] recall.” 

Dr. Hyde, a neuroscientist and behavioral neurologist, who was admitted as an 

expert “in the field of neurology and psychiatry for the purpose of testifying as to 

criminality,” testified that he had examined Rainey four separate times over a two-year 

period. In addition to those examinations, he had further examined the materials 

provided by the State in discovery, including various recordings and videos, as well as 

notes and reports, and he had also interviewed Rainey’s former wife, Patricia Rainey. 

After considering that information, Dr. Hyde opined that Rainey suffered from a 

traumatic brain injury induced by the lightning strike that had occurred two days before 

the killings. Consequently, in Dr. Hyde’s opinion, Rainey was not criminally 

responsible. Dr. Hyde further opined that Rainey was not malingering, stating that he 

had found no “evidence of that upon [his] examination of” Rainey. Dr. Hyde conceded, 

however, that his opinion was based largely upon Rainey’s self-reported symptoms and 

that he had observed no “evidence of trauma, deformity or scarring” when examining 

Rainey’s head. 
7

The State presented testimony of Lisa Rainey’s mother, Velma Cook; R.J.; James;

and its psychiatric expert, Annette Hanson, M.D. The testimony of R.J. and James, the 

only survivors of the shootings, was summarized previously; we shall briefly outline the 

testimony of the others as relevant to this appeal.

Ms. Cook testified that, on May 13, 2013, that is, the day of the killings, Rainey 

called her and said, “I am going to kill your daughter and I am going to kill myself.” He 

then hung up. Cook tried to call back but “couldn’t get an answer.” Phone records 

indicated that Rainey had placed that call at 9:55 a.m. and that he placed the ensuing 

“911” call less than a minute later. 

Prior to Dr. Hanson’s testimony, the defense moved in limine to preclude her from 

testifying about the results of the tests described in the Kanal report, on confrontation 

grounds. Then, while defense counsel examined her outside the presence of the jury, Dr. 

Hanson acknowledged, among other things, that she neither performed any of the tests 

described in the Kanal report, nor did she observe the raw data generated from those 

tests; and, furthermore, that, as to two of the three tests administered to Rainey, had she 

been provided with the underlying data, she would not have been qualified to analyze it.

The circuit court, nonetheless, denied the motion in limine, ruling that Dr. Hanson could 

testify about the tests because they were data “of a type reasonably relied upon by experts 
8

in the particular field in forming opinions or inferences upon the subject[.]” Md. Rule 

5-703(a).5

Dr. Hanson thereafter testified before the jury. After being qualified as an expert 

in the area of forensic psychiatry, she testified at length about her ultimate conclusion, 

that Rainey was criminally responsible for the crimes at issue. Among other things, she 

briefly mentioned that Rainey, while confined at Perkins after initially being found not 

competent to stand trial, had been administered three psychological tests to determine 

whether he was malingering and that, according to the Kanal report, two of those three 

tests indicated that he was. 

By far, the greater part of Dr. Hanson’s testimony concerned all the reasons she 

believed that Rainey should be found criminally responsible, including the “very 

unusual” symptoms Rainey reported; that Rainey had not been taking anti-psychotic 

medications until one week prior to being transferred to Perkins, which, she opined, “is 

quite unusual for someone with a serious mental illness”; that, once admitted to Perkins, 

his medication was stopped (because the purpose of his stay there was “to clarify his 

diagnosis”) and that, while “receiving no treatment” whatsoever, he nonetheless “did 

very well there”; that, once Rainey had been diagnosed and his medications resumed, 

none of the medications helped to alleviate any of his reported symptoms; that, during his 

 

5 Effective July 1, 2019, Rule 5-703 was amended to conform more closely to 

Federal Rule of Evidence 703. Rules Order, May 16, 2019 (available at 

https://www.mdcourts.gov/sites/default/files/rules/order/ro200.pdf) (last visited Dec. 10, 

2019). Throughout this opinion, all references to Rule 5-703 are to the version in effect 

at the time of Rainey’s trial.
9

stay at Perkins, Rainey was “very well behaved” and “a model patient,” which is not “an 

easy thing to do at Perkins”; and that, once discharged from Perkins, Rainey was not 

prescribed any medication because he had been “assessed as not having a mental 

disorder.” In addition, Dr. Hanson criticized Dr. Hyde’s methodology and disagreed with 

the conclusions stated in his report, which were favorable to Rainey, noting that Dr. Hyde 

had, according to Dr. Hanson, “relied solely upon” Rainey’s word without considering 

the “information that collaterals provided.” She also downplayed Rainey’s reports that 

he had been suffering from delusional parasitosis because his purported symptoms were 

“inconsistent” with the confirmed cases she had observed in her two decades of work 

with “psychotic killers” and “violent offenders.” 

Finally, Dr. Hanson discussed the statement that Rainey had recorded on his cell 

phone early in the morning of May 13, just eight hours before the shootings, which she 

characterized as a “confession” and “the strongest evidence” of Rainey’s criminal 

responsibility. In that recorded statement, Rainey “talked about his anger at his wife, the 

fact that he had been . . . mistreated over the years by more than one woman,” and that 

“he wasn’t going to take it anymore.” Rainey further stated that he was “leaving [his] 

telephone unlocked for investigators,” a clear signal to Dr. Hanson that Rainey was able 

to “appreciate criminality.” Moreover, in his “911” call, Rainey stated that “he was 

going to kill himself rather than go to court,” again indicating that “he knew that he was 

going to be facing criminal prosecution immediately after the crime.” Then, while 

speaking to police officers afterwards, Rainey “had enough awareness of the criminality 

of his conduct that he offered an alternative explanation for the offense,” stating that “he 
10

didn’t remember shooting at the victims” and that “he was shooting at the shadow of 

someone who he thought was coming into the house.” 

On the fifth day of the proceedings, the case went to the jury. After deliberating 

for less than two hours,6it returned its verdict, finding Rainey criminally responsible for 

the crimes charged. After sentence was imposed, Rainey noted this appeal. 

DISCUSSION

I. Standard of Review

“We review the ultimate question of whether the admission of evidence violated a 

defendant’s constitutional rights without deference to the trial court’s ruling.” Taylor v. 

State, 226 Md. App. 317, 332 (2016) (citing Hailes v. State, 442 Md. 488, 506 (2015)).

II. Legal Framework

A. The Confrontation Clause, “Testimonial Hearsay,” and the “Primary Purpose” 

Test

The Sixth Amendment, applicable to the states through the Fourteenth 

Amendment, guarantees that, in “all criminal prosecutions,” an accused “shall enjoy the 

right . . . to be confronted with the witnesses against him[.]” U.S. Const. Amend. VI. 

How that guarantee is interpreted and enforced has sharply divided the Supreme Court, in 

the years since its seminal decision in Crawford v. Washington, 541 U.S. 36 (2004).

In Crawford, the Supreme Court sought to reconnect the application of the 

Confrontation Clause to its original meaning and held that, regardless of hearsay rules, 

 

6 This is a generous estimate. The jury recessed for lunch at 12:14 p.m. and 

reconvened at 2:08 p.m., by which time it had already reached a verdict. 
11

the Confrontation Clause generally bars the introduction into evidence, at a criminal trial, 

of “testimonial hearsay,” unless the defendant had a prior opportunity to cross-examine

the declarant, and the declarant was presently unavailable to testify. 541 U.S. at 54. The 

statement at issue in Crawford, which was recorded during a police interrogation of 

Crawford’s wife (who was unavailable to testify because of the spousal privilege) and 

played back at his trial, was indisputably a “testimonial” statement, and the Crawford

Court thus had no occasion to offer a precise definition of that term. Id. at 68. The Court 

did, however, set forth what it called a “core class” of such statements, namely, 

affidavits, depositions, prior testimony, and confessions. Id. at 51-52.

Two years later, in two consolidated cases, Davis v. Washington and Hammon v. 

Indiana, 547 U.S. 813 (2006), the Court further refined the definition of “testimonial” 

statement by articulating what it called the “primary purpose” test:

[Statements] are testimonial when the circumstances 

objectively indicate that there is no . . . ongoing emergency, 

and that the primary purpose of the interrogation is to 

establish or prove past events potentially relevant to later 

criminal prosecution.

Id. at 822. In contrast,

[s]tatements are nontestimonial when made in the course of 

police interrogation under circumstances objectively 

indicating that the primary purpose of the interrogation is to 

enable police assistance to meet an ongoing emergency.

Id. But, cautioned the Court, its holding referred to “interrogations” because the 

statements at issue in those cases were “the products of interrogations,” and it did not 
12

mean to suggest “that statements made in the absence of any interrogation are necessarily 

nontestimonial.” Id. at 822 n.1.

B. Application of the “Primary Purpose” Test to Scientific or Forensic Reports

How the “primary purpose” test applies to scientific or forensic reports has been 

the subject of three Supreme Court decisions rendered since Davis and Hammon:

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), Bullcoming v. New Mexico, 564 

U.S. 647 (2011), and Williams v. Illinois, 567 U.S. 50 (2012). We now briefly 

summarize the holdings in those cases.

In Melendez-Diaz v. Massachusetts, 557 U.S. 305, the Court held, in a 5-4 

decision, that “certificates of analysis,” sworn to before a notary public, which attested to 

the weight and chemical composition of purported drugs seized from Melendez-Diaz, id.

at 308, fell within the “core class of testimonial statements.” Id. at 310. Accordingly, it 

concluded that such certificates could not be introduced into evidence at 

Melendez-Diaz’s criminal trial without the testimony of the analysts who had performed 

the tests. Id. at 311.

Two years later, in Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court

held, again in a 5-4 decision, that an unnotarized “Report of Blood Alcohol Analysis,” 

which attested to the blood alcohol content measured in Bullcoming’s blood sample, as 

well as its chain of custody, and which certified that the analyst had followed the 

“established procedure” for handing and testing that sample, id. at 653, was nonetheless a 

“testimonial” statement, despite being “unsworn.” Id. at 664-65. Furthermore, because,

at Bullcoming’s criminal trial, the State introduced the report, not through the testimony 
13

of the analyst who had performed the test, but instead, through the testimony of a 

“surrogate” analyst, who had neither signed the certification nor performed or observed

the test that it reported, id. at 652, the Supreme Court held that the Confrontation Clause 

had been violated. Id. at 659-61.

But, in Williams v. Illinois, 567 U.S. 50 (2012), the most recent of those decisions, 

the Court made an abrupt departure from Melendez-Diaz and Bullcoming and upheld a 

rape conviction, where an expert witness had been permitted to testify at Williams’s trial

that his DNA had been detected through forensic testing of a rape kit obtained from the 

victim, despite the fact that the witness had neither performed the testing herself nor even 

been employed by the facility, Cellmark Diagnostics Laboratory, which had. The 

fractured 4-1-4 decision in Williams resulted in three different tests for determining 

whether a scientific or forensic report is “testimonial.”

A plurality of four justices, the dissenters in Melendez-Diaz and Bullcoming, 

joined an opinion by Justice Alito, announcing the judgment of the Court, which stated 

that, to implicate the Confrontation Clause, not only must a statement, such as a forensic 

laboratory report, have been prepared for the “primary purpose of creating an 

out-of-court substitute for trial testimony,” Williams, 567 U.S. at 84 (Alito, J., plurality 

opinion) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)),

7 but it must have “had 

 

7 The quoted passage from Bryant emphasized that “there may be other

circumstances, aside from ongoing emergencies, when a statement is not procured with a 

primary purpose of creating an out-of-court substitute for trial testimony.” Michigan v. 

Bryant, 562 U.S. 344, 358 (2011).
14

the primary purpose of accusing a targeted individual.” Id. at 83. According to the 

plurality, the Cellmark report did not satisfy that test since, at the time the report had been

prepared, there was no known suspect in the case. Id. at 85-86. Rather, insisted the 

plurality, the primary purpose of the Cellmark report “was to catch a dangerous rapist 

still at large,” and that report therefore did not qualify as a “testimonial” statement. Id. at 

84.8

The fifth concurring justice, Justice Thomas, voted with the Alito plurality but 

disagreed entirely with its rationale. Id. at 104 (Thomas, J., concurring in the judgment) 

(“As I explain below, I share the dissent’s view of the plurality’s flawed analysis.”). 

Justice Thomas rejected Justice Alito’s “targeted” “primary purpose” test, id. at 114-118, 

asserting that it “lacks any grounding in constitutional text, in history, or in logic.” Id. at 

114. In its place, Justice Thomas proposed his own idiosyncratic test, to which no other 

justice ascribed, namely, that to qualify as “testimonial,” an out-of-court statement must 

bear “indicia of solemnity.” Id. at 111. Applying that test, Justice Thomas concluded 

that the Cellmark report, though signed by two “reviewers,” id. at 111, was “neither a 

sworn nor a certified declaration of fact.” Id. Therefore, according to Justice Thomas, 

the Cellmark report “lacked the requisite ‘formality and solemnity’ to be considered 

‘testimonial’ for purposes of the Confrontation Clause.” Id. at 104 (citation omitted).

 

8 The plurality further concluded that the Cellmark report had not been admitted 

for its truth and was, therefore, not hearsay. Williams, 567 U.S. at 70-79 (Alito, J., 

plurality opinion). Five justices, however, emphatically disagreed with that conclusion, 

id. at 106-07 (Thomas, J., concurring in the judgment); id. at 126 (Kagan, J., dissenting), 

and it was not part of the Court’s holding. 
15

The four dissenting justices proposed yet a different test for determining whether a 

forensic report is a “testimonial” statement. According to the dissenters, “a statement 

meant to serve as evidence in a potential criminal trial,” such as the Cellmark report, 

should be deemed “testimonial.” Id. at 138 (Kagan, J., dissenting).

Lower courts have struggled to apply Williams in cases where the prosecution 

attempts to introduce scientific or forensic reports into evidence, or, as here, introduces 

their substance through expert testimony. The Supreme Court has provided a rule of 

decision for a case, such as Williams, in which there is no majority opinion:

When a fragmented Court decides a case and no single 

rationale explaining the result enjoys the assent of five 

Justices, the holding of the Court may be viewed as that 

position taken by those Members who concurred in the 

judgments on the narrowest grounds.

Marks v. United States, 430 U.S. 188, 193 (1977) (citation and quotation omitted).

The method prescribed in Marks, however, rests upon the presumption that there is

a common point of agreement among the rationales in support of the judgment. See King 

v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (observing that “Marks is workable—one 

opinion can be meaningfully regarded as ‘narrower’ than another—only when one 

opinion is a logical subset of other, broader opinions”). Arguably, in Williams, that 

presumption does not obtain, leading several lower courts to conclude that Marks does 

not yield a holding when applied to Williams and that therefore Williams has no

precedential value beyond its facts. See, e.g., United States v. Duron-Caldera, 737 F.3d 

988, 994 n.4 (5th Cir. 2013); United States v. James, 712 F.3d 79, 95 (2d Cir. 2013);

State v. Watson, 185 A.3d 845, 855-56 (N.H. 2018); State v. Stanfield, 347 P.3d 175, 184 
16

(Idaho 2015); State v. Michaels, 95 A.3d 648, 665-66 (N.J. 2014); State v. Kennedy, 735 

S.E.2d 905, 919-20 (W.Va. 2012). Departing from the reasoning of those courts, the 

Court of Appeals has, nonetheless, attempted to apply Marks to divine a rule of decision 

from the opinions in Williams which, together, resulted in the judgment, and we turn to 

its most recent exposition on the matter, State v. Norton, 443 Md. 517 (2015).

In Norton, the Court of Appeals looked to a then-recent decision of the District of 

Columbia Court of Appeals, Young v. United States, 63 A.3d 1033 (D.C. 2013), which

had considered Marks’s applicability to Williams. The Young Court observed that, 

although there was no commonality between the tests articulated by Justices Alito and 

Thomas, each test could be regarded as a narrowing of the test advanced by Justice 

Kagan in her dissenting opinion. Young, 63 A.3d at 1043. That insight led the Young

Court to conclude that, under Williams, a forensic report should be deemed testimonial if 

it satisfies “the basic ‘evidentiary purpose’ test espoused by Justice Kagan” and,

additionally, either Justice Alito’s “targeted accusation test” or Justice Thomas’s 

“formality criterion.” Id. at 1043-44. The Court of Appeals adopted Young’s test,

Norton, 443 Md. at 546-48, and we therefore are bound to apply that test to the reports at 

issue in the instant case.

C. An Antecedent Question: The Relationship Between Maryland Rule 5-703 and 

the Confrontation Clause

Before a court applies the foregoing analysis to determine whether a scientific or 

forensic report is “testimonial,” it must first answer a predicate question—whether the 

report is hearsay. That is because the Confrontation Clause applies only to “testimonial 
17

hearsay.” Davis, 547 U.S. at 824. If, as in the instant case, the prosecution does not call 

the author of the report to testify, the question then becomes whether the report is being 

offered for its truth because, if so, it constitutes hearsay. Md. Rule 5-801(c).

Maryland Rule 5-703, the rule governing expert testimony, seemingly offers the 

State a way to circumvent this problem. That rule permits an expert to base her 

testimony on facts that are otherwise inadmissible, if those facts are “of a type reasonably 

relied upon by experts in the particular field in forming opinions or inferences upon the 

subject[.]” Md. Rule 5-703(a).

9

 Moreover, in the court’s discretion, such facts may be 

disclosed to the jury, if “determined to be trustworthy, necessary to illuminate testimony, 

and unprivileged[.]” Md. Rule 5-703(b). However, “[u]pon request, the court shall 

 

9 At the time of Rainey’s trial, Rule 5-703 provided as follows:

(a) In General. The facts or data in the particular case upon 

which an expert bases an opinion or inference may be those 

perceived by or made known to the expert at or before the 

hearing. If of a type reasonably relied upon by experts in the 

particular field in forming opinions or inferences upon the 

subject, the facts or data need not be admissible in evidence.

(b) Disclosure to Jury. If determined to be trustworthy, 

necessary to illuminate testimony, and unprivileged, facts or 

data reasonably relied upon by an expert pursuant to section 

(a) may, in the discretion of the court, be disclosed to the jury 

even if those facts and data are not admissible in evidence. 

Upon request, the court shall instruct the jury to use those 

facts and data only for the purpose of evaluating the validity 

and probative value of the expert’s opinion or inference.

(c) Right to Challenge Expert. This Rule does not limit the 

right of an opposing party to cross-examine an expert witness 

or to test the basis of the expert’s opinion or inference.
18

instruct the jury to use those facts and data only for the purpose of evaluating the validity 

and probative value of the expert’s opinion or inference.” Md. Rule 5-703(b).

A literal reading of the rule would suggest that a trial court may permit an expert 

to testify about testimonial statements of a non-testifying witness and, subject to a 

limiting instruction, disclose those statements to a jury. But plainly, no rule or statute can 

override a constitutional command, and, as we shall explain, both the Court of Appeals 

and the Supreme Court have so held. Thus, the general rule stated in part (a) does not 

apply if the otherwise inadmissible evidence amounts to “testimonial hearsay,” nor does

part (b) of the rule, which admits otherwise inadmissible evidence “only for the purpose 

of evaluating the validity and probative value of the expert’s opinion or inference,” that 

is, for a purportedly non-hearsay purpose, exempt such expert testimony from the ambit 

of the Confrontation Clause. 

In a pre-Williams decision, Derr v. State, 422 Md. 211 (2011) (“Derr I”), vacated, 

567 U.S. 948 (2012), overruled by 434 Md. 88 (2013) (“Derr II”), cert. denied, 573 U.S. 

903 (2014), the Court of Appeals addressed this very question and held that, “because of 

the Confrontation Clause, an expert may not render as true the testimonial statements or 

opinions of others through his or her testimony.” Id. at 243. When it reconsidered Derr’s 

appeal following remand from the Supreme Court, the Court of Appeals had no need to 

reconsider that part of its holding in Derr I, because, applying its interpretation of 
19

Williams,

10 it held that the forensic reports at issue were not “testimonial.” Derr II, 434 

Md. at 117-20.

Furthermore, in Williams itself, a majority of the Supreme Court rejected the 

notion that an analogous state-law rule, Illinois Rule of Evidence 703, would permit an 

expert to offer such “basis testimony” without regard for the Confrontation Clause. In his 

opinion concurring in the judgment, Justice Thomas observed that “concepts central to 

the application of the Confrontation Clause are ultimately matters of federal 

constitutional law that are not dictated by state or federal evidentiary rules,” Williams, 

567 U.S. at 105 (Thomas, J., concurring in the judgment) (citation omitted), and he 

concluded that “[t]here is no meaningful distinction between disclosing an out-of-court 

statement so that the factfinder may evaluate the expert’s opinion and disclosing that 

statement for its truth.” Id. at 106. Likewise, Justice Kagan, in an opinion joined by 

three other justices, declared that “when a witness, expert or otherwise, repeats an 

out-of-court statement as the basis for a conclusion,” such a “statement’s utility is then 

dependent on its truth,” and it follows that the prosecution cannot “rely on [the testifying 

expert’s] status . . . to circumvent the Confrontation Clause’s requirements.” Id. at 126 

(Kagan, J., dissenting). Under Marks, these harmonious statements from Justice 

 

10 Derr II applied a different test (based solely upon Justice Thomas’s concurring 

opinion in Williams) to the admissibility of forensic reports than that subsequently

articulated in Norton, but the latter test supersedes the test adopted in Derr II and is the 

test currently applied in Maryland. See Norton, 443 Md. at 545-46 (observing that “no 

other state supreme court nor federal circuit court of appeals” had applied the test adopted 

by the Court of Appeals in Derr II and thus taking the “opportunity to better refine [its]

own analysis”).
20

Thomas’s concurring opinion and Justice Kagan’s dissenting opinion may be regarded as 

a holding of the Court as to this question.11

We therefore conclude that, when Maryland Rule 5-703 and the Confrontation 

Clause are in apparent conflict, the rule must give way to the constitutional requirement. 

Thus, the rule permits an expert to testify about otherwise inadmissible evidence if it is 

“of a type reasonably relied upon by experts in the particular field in forming opinions or 

inferences upon the subject,” Md. Rule 5-703(a), but only if that otherwise inadmissible 

evidence is not “testimonial hearsay.” Moreover, when “basis evidence” is “testimonial,” 

 

11 Because the Supreme Court has only indirectly addressed this issue, lower 

courts are in disagreement as to whether the prosecution may evade the Confrontation 

Clause through use of the rules governing testimony by expert witnesses. Compare 

People v. Sanchez, 374 P.3d 320, 334-35 (Cal. 2016) (concluding that, when “any expert 

relates to the jury case-specific out-of-court statements, and treats the content of those 

statements as true and accurate to support the expert’s opinion, the statements are 

hearsay”); Martin v. State, 60 A.3d 1100, 1107 (Del. 2013) (observing that, in Williams, 

“five U.S. Supreme Court Justices, in concurrence and dissent, found that the underlying

[Cellmark] report was admitted for the truth of the matter asserted”) with State v. Roach, 

95 A.3d 683, 695-96 (N.J. 2014) (holding that an “independent reviewer” may, 

consistently with the Confrontation Clause, “testify based on his or her independent 

review of raw data and conclusions that he or she reports based on that data”); Com. v. 

Greineder, 984 N.E.2d 804, 818 (Mass. 2013) (permitting a “bifurcated approach,” that 

is, admitting an expert’s opinion but “excluding its hearsay basis on direct examination”); 

People v. Williams, 939 N.E.2d 268, 278-80 (Ill. 2010) (holding that expert “testimony 

about Cellmark’s report was not admitted for the truth of the matter asserted” but, “rather, 

to show the underlying facts and data [the expert] used before rendering” her opinion), 

aff’d sub nom. Williams v. Illinois, 567 U.S. 50 (2012). Although we are not bound by 

Derr I, as that decision was vacated in its entirety by the Supreme Court, albeit on 

different grounds, see West v. State, 369 Md. 150, 157-58 (2002), we nonetheless find it 

persuasive, and, moreover, we interpret Williams as precluding such a “prosecutorial 

dodge.” 567 U.S. at 120 (Kagan, J., dissenting).
21

part (b) of the rule does not permit an expert to act as a conduit for such evidence, 

regardless of the text of the rule. 

III. Analysis

During the proceedings below, the circuit court permitted Dr. Hanson to testify, 

over defense objection, about the results of the psychological tests, as described in the 

Kanal report, because such matters were “of a type reasonably relied upon by experts in 

the particular field in forming opinions or inferences upon the subject” under Rule 5-703. 

Neither the psychologist who had administered the psychological tests at issue, nor the 

supervising psychologist, who also had signed the report, was called to testify. As we 

have previously explained, such “basis evidence” could properly be admitted over a 

confrontation objection only if the results of those tests were not “testimonial hearsay,” a 

question we now consider.

A. Application of the Norton Test

In addressing a claimed Confrontation Clause violation based upon the alleged 

admission of testimonial hearsay, we begin by determining whether the out-of-court 

statements at issue constituted hearsay and, if so, whether such hearsay was “testimonial” 

under the test espoused by Norton.

12

 

12 Under Crawford, “[t]estimonial statements of witnesses absent from trial” are 

admissible “only where the declarant is unavailable, and only where the defendant has 

had a prior opportunity to cross-examine.” 541 U.S. at 59. In the instant case, neither of 

those conditions, the declarant’s unavailability or the defendant’s prior opportunity to 

cross-examine, was established, and thus neither is relevant to our analysis.
22

Initially, we reject the State’s suggestion that, because the Kanal report itself “was 

not admitted at trial,” there was no confrontation issue, since Dr. Hanson, the expert who 

testified about its conclusions, was available for cross-examination. As five justices 

agreed in Williams, “[t]here is no meaningful distinction between disclosing an 

out-of-court statement so that the factfinder may evaluate the expert’s opinion and 

disclosing that statement for its truth.” Id. at 106 (Thomas, J., concurring in the 

judgment); see id. at 126-27 (Kagan, J., dissenting) (rejecting the idea that “‘basis 

evidence’ comes in not for its truth, but only to help the factfinder evaluate an expert’s 

opinion”). In the instant case, as in Williams, Dr. Hanson served as a conduit for the 

results of the malingering tests, and we conclude that those results were introduced, 

through her testimony, for their truth and were therefore hearsay.

We next consider whether the hearsay at issue was “testimonial.” Applying the 

test articulated in Norton, we must determine whether the Kanal report, summarizing the 

results of the malingering tests, was prepared for an evidentiary purpose, and, if so, 

whether it was either “formal” or “targeted.” For ease of exposition, we begin by 

examining whether the Kanal report bears “indicia of solemnity” sufficient to satisfy 

Justice Thomas’s “formality” test, and then consider the “evidentiary purpose” and 

“targeted accusation” tests together.

Although the Kanal report is signed by two psychologists, it is not notarized, nor 

does it certify that the tests were administered according to any specific protocol. In 

these respects, the Kanal report is similar to the Cellmark report in Williams, which, 

likewise, though signed by two “reviewers,” was “neither a sworn nor a certified 
23

declaration of fact” and lacked any “attest[ation] that its statements accurately reflect[ed] 

the DNA testing processes used or the results obtained.” Williams, 567 U.S. at 111 

(Thomas, J., concurring in the judgment). Like the Cellmark report, the report at issue 

here “certifies nothing.” Id. at 112. Accordingly, because the Kanal test report lacks

sufficient “indicia of solemnity,” id., we conclude that it does not satisfy Justice 

Thomas’s “formality criterion,” Young, 63 A.3d at 1044, and is therefore, under that test, 

not “testimonial.”

We next consider whether the Kanal report satisfies Justice Kagan’s “evidentiary 

purpose” test and Justice Alito’s “targeted accusation” test. Because that report does not 

satisfy Justice Thomas’s “formality criterion,” it must satisfy both of the remaining tests 

to qualify as “testimonial.”

In its header, the report indicates that it was prepared under the auspices of the 

Clifton T. Perkins Hospital Center. Perkins is a “Maximum Security facility,” 

established by statute13 as part of the Maryland Department of Health, which “receives 

patients requiring psychiatric evaluation who have been accused of felonies and have 

raised the Not Criminally Responsible (NCR) defense and/or their Competency to Stand 

Trial is in question.” Clifton T. Perkins Hospital Home, available at 

https://health.maryland.gov/perkins/Pages/home.aspx (last visited Dec. 11, 2019). Just 

below the header, the report indicates the subject’s name, date of birth, age, the dates of 

 

13 See Maryland Code (1982, 2009 Repl. Vol.), Health-General Article, § 

10-406(a)(1), which was in effect at the time the Kanal report was issued. The current

version of the statute, in the 2019 replacement Volume, is to similar effect.
24

the assessment, the criminal charges against him, the case number, and the “Current 

Legal Status,” which was, as of the date of the report, incompetent to stand trial (“IST”). 

Then, in its second full paragraph, the report includes a “Non-Confidentiality Statement”:

Mr. Rainey was informed at the outset of each evaluative 

session of the voluntary and non-confidential nature of the 

evaluation. He was informed that all information gathered 

during this evaluation had the potential to be included in 

a report that would be placed in his hospital chart and 

would be available to clinical staff. He understood that 

his chart could be subpoenaed in legal actions. Mr. Rainey 

understood the non-confidentiality of the evaluation and its 

voluntary nature, and agreed to participate.

(Emphasis added.)

On its face, the Kanal report indicates an evidentiary purpose and that it “could be 

subpoenaed in legal actions.” To say, as the State maintains, that the primary purpose of 

this report and of the malingering tests “was to aid in [Rainey’s] diagnosis and treatment, 

not to accuse him of crime[s],” is to ignore reality.14 In determining whether there was an 

evidentiary purpose, we must bear in mind that Rainey’s mental condition was essentially 

the only issue in his criminal trial. A person committed to Perkins is not merely 

undergoing medical or psychiatric treatment; the entire raison d’être of that facility is, in 

the words of its website, to “receive[] patients requiring psychiatric evaluation who have 

been accused of felonies and have raised the Not Criminally Responsible (NCR) defense 

and/or their Competency to Stand Trial is in question.” It goes without saying that the 

medical purpose and the evidentiary purpose of any ensuing treatment received by such a 

 

14 Indeed, one might say, without irony, that the State’s argument embodies a 

classic case of “We’re from the government, and we’re here to help you!”
25

patient substantially overlap. In other words, given the centrality of Rainey’s 

psychological condition to his criminal case, there is no meaningful distinction between

the medical or therapeutic purpose of the Kanal report and its potential evidentiary 

purpose. We conclude that the Kanal report satisfies the Kagan “evidentiary purpose” 

test.

Moreover, not only does this report have an evidentiary purpose, it is a purpose 

that is plainly targeted at the defendant, Ronnie Lee Rainey, Sr. The report expressly lists 

the defendant’s name, the charges alleged, and the case number assigned by the circuit 

court. The report’s conclusion, “that Mr. Rainey’s reported symptoms are in fact feigned 

or exaggerated,” is, in the context of this case, tantamount to an accusation that he indeed 

committed the crimes charges. See Norton, 443 Md. at 548 (observing that a forensic 

document, to be “testimonial” under the Alito test, “must contain a conclusion that 

connects the defendant to the underlying crime”). We hold that the Kanal report satisfies 

the Alito “targeted accusation” test. And, because the Kanal report satisfies both the 

Kagan “evidentiary purpose” test and the Alito “targeted accusation” test, it is therefore 

“testimonial.” Young, 63 A.3d at 1043-44; Norton, 443 Md. at 547.

It follows that the circuit court erred in permitting Dr. Hanson to testify about the 

conclusions reached in that report, since neither of its signatories, Dr. Kanal nor Dr. 

Cowan, was called to testify.15 We therefore must determine whether that error was 

 

15 This might be a different case if Dr. Hanson had offered a truly independent 

conclusion regarding the test results from the Kanal report, and, indeed, as she otherwise 

did in the remainder of her testimony. Although “an expert’s use of testimonial hearsay 

(continued)
26

harmless. Delaware v. Van Arsdall, 475 U.S. 673, 680-84 (1986) (holding that violations 

of the Confrontation Clause are amenable to Chapman harmless error16 analysis).

B. Harmless Error

Harmless error review is the standard “most favorable to the defendant short of an 

automatic reversal.” Bellamy v. State, 403 Md. 308, 333 (2008). That standard must be 

applied “in a manner that does not encroach upon the jury’s judgment.” Dionas v. State, 

436 Md. 97, 109 (2013) (citing Bellamy, 403 Md. at 332). “[H]armless error factors must 

be considered with a focus on the effect of erroneously admitted, or excluded, evidence 

on the jury.” Id. Among the factors that should be considered are “the nature, and the 

effect, of the purported error upon the jury,” id. at 110; “the jury’s behavior during 

deliberations,” including the length of those deliberations, id.; and the strength of the 

State’s case, “from the perspective of the jury.” Id. at 116.

 

(continued)

is a matter of degree,” and the Confrontation Clause may not always forbid an expert 

witness from testifying “merely because” her opinions “were in some part informed by 

their exposure to otherwise inadmissible evidence,” it does bar testimony where an expert 

witness “is used as little more than a conduit or transmitter for testimonial hearsay, rather 

than as a true expert whose considered opinion sheds light on some specialized factual 

situation.” United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (citation 

omitted).

16 Under federal law, only preserved errors of constitutional dimension are subject 

to the harmless error standard articulated in Chapman v. California, 386 U.S. 18, 24 

(1967), that is, that reversal is mandated unless the State can demonstrate “beyond a

reasonable doubt that the error complained of did not contribute to the verdict obtained.” 

Under Maryland law, all preserved errors, whether “of constitutional significance or 

otherwise,” are subject to the Chapman standard. Dorsey v. State, 276 Md. 638, 659 

(1976).
27

We begin with the observation that Dr. Hanson authored a fifty-six-page report on 

Rainey’s criminal responsibility, in which she relied upon forty-eight sources of 

information in making her own assessment. Those sources included, in Dr. Hanson’s 

words, “collateral interviews with witnesses”; interviews “with the defendant himself”;

interviews with “the defendant’s two sisters” and “his brother”; “medical records” and 

“investigation materials”; “court orders and motions”; and “miscellaneous documents 

such as text and telephone conversations between the defendant and his victims.” 

Because she testified at trial and was available for cross-examination, her own analysis 

was properly admitted without implicating the Confrontation Clause. But, in preparing 

her report, she also relied upon the Kanal report, summarizing the results of three

malingering tests17 that had been administered by a psychologist, Dr. Aryeh Kanal, who 

was not called to testify; moreover, during direct examination, she testified that, “in two 

of those three tests, the assessment was that [Rainey] was malingering his symptoms.” 

As for the erroneously admitted testimony itself, which comprised less than a page 

of the 75-page transcript of Dr. Hanson’s testimony, we note that it was not entirely 

inculpatory. As Dr. Hanson acknowledged, one of the three psychological test results 

 

17 Dr. Kanal’s report summarized the results of four tests, which had been 

administered to Rainey, but only three of those tests, which sought to determine whether 

he had been malingering, are at issue.
28

indicated that Rainey was not malingering.18 That alone, of course, would not be enough 

for us to conclude that the error was harmless. But there was more.

For one thing, Dr. Hanson explained, in considerable detail and based upon 

admissible evidence, why she discounted Rainey’s claimed mental illness. That evidence 

was overwhelming;19 among other things, Rainey thrived at Perkins while receiving no 

anti-psychotic medication, and, upon discharge, he was prescribed no such medication 

because he was deemed not to suffer from a mental illness.

The most important factor, by far, was Rainey’s planning and deliberation of the 

crimes. Dr. Hanson pointed this out in describing Rainey’s recorded “confession,” on his 

cell phone, made eight hours before the shootings. As the sentencing court aptly noted, 

“the one piece of evidence or fact that jumped out” was “the manner in which [Rainey] 

parked his vehicle behind his house.” The court further drew the only reasonable 

inference possible—that Rainey “parked his vehicle out of sight so it would not be seen 

by the victims in this case.” Given this incontrovertible evidence of an ambush, it was 

 

18 We further note that there was no contemporaneous objection at the time Dr. 

Hanson testified about the results of the psychological tests. Moreover, the defense did 

not request a continuing objection when, just prior to Dr. Hanson’s testimony, the court 

denied the defense’s motion in limine seeking to preclude Dr. Hanson from testifying 

about the results of the tests. But the State has not raised preservation, and, given the 

close proximity in time between the denial of the motion in limine and the disputed 

testimony, we assume that the issue is properly before us.

19 In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Supreme Court expressly 

noted that an important factor in determining whether error is harmless is “the overall 

strength of the prosecution’s case.” Id. at 684 (citations omitted).
29

“clear” to the court, and no doubt to the jury as well, that Rainey had “planned” the 

killings and that he therefore was criminally responsible. 

Finally, the jury deliberated for an exceedingly short time before returning its 

verdict, which suggests that it did not think this was at all a close case. See Dionas, 436 

Md. at 110 (noting the significance of the jury’s behavior during deliberation and the 

length of that deliberation). Under these circumstances, we conclude, beyond a 

reasonable doubt, that the confrontation error in this case had no influence on the verdict. 

Accordingly, we affirm the judgment.

JUDGMENT OF THE CIRCUIT COURT 

FOR PRINCE GEORGE’S COUNTY 

AFFIRMED. COSTS ASSESSED TO 

APPELLANT.