370 Md. 191, 803 A.2d 1034 (Maryland Court of Appeals 2002)

RAKER, Judge.

The primary question we address in this appeal is whether the trial court abused its discretion in permitting the State to use statistical data and a product rule computation to prove the improbability of two Sudden Infant Death Syndrome ("SIDS") deaths in a single family. . . .(1)

Garrett Eldred Wilson, petitioner, was convicted by a jury in the Circuit Court for Montgomery County of first degree premeditated murder of his infant son, Garrett Michael Wilson. He was sentenced to a term of imprisonment of life without the possibility of parole. The Court of Special Appeals affirmed his conviction. . .
. . . .


On February 25, 1981, Deborah Oliver Fennell, then petitioner's wife, gave birth to a daughter, Brandi Jean Wilson. After Brandi's birth, petitioner purchased two life insurance policies, worth a total of $40,000, on Brandi's life. Petitioner was the primary beneficiary of these policies, Ms. Fennell the contingent beneficiary.

On April 30, 1981, Brandi died. After an autopsy, her death was labeled as a SIDS death.

On March 22, 1987, Mary Anastasi, petitioner's wife as of March 1986, gave birth to a son, Garrett Michael Wilson. After Garrett's birth, petitioner purchased two life insurance policies, worth a total of $150,000, on his son's life. As with his daughter Brandi's insurance policies, petitioner was the primary beneficiary and his wife the contingent beneficiary. On August 13, 1987, Garrett died. After an autopsy, his death was also attributed to SIDS.

On May 28, 1998, the Grand Jury for Montgomery County indicted petitioner for the murder of Garrett Michael Wilson. Wilson proceeded to trial before a jury in the Circuit Court for Montgomery County.

At trial, Ms. Fennell testified that the night Brandi died was the first and only night that petitioner took care of the child. Soon after Brandi's death, petitioner filed claims with the two insurance companies from which he had purchased the policies on Brandi's life, and he collected the insurance proceeds. Like Ms. Fennell, Ms. Anastasi testified that the night of Garrett's death was the first night that petitioner alone took care of their baby. Petitioner collected the money from insurance policies he had taken out on Garrett's life soon after the infant's death.

. . . .

Two of the experts, Dr. Kokes and Dr. Norton, also relied on statistics, utilizing the product rule, (2) as a basis for their opinion and in calculating the probability that Garrett had not died of SIDS. Dr. Kokes testified that "[t]he death rate from Sudden Infant Death Syndrome back in 1987 was somewhere between 1 to 2 deaths for every 1,000 live births."(3) He also noted that Garret had cerebral swelling, a condition that effects less than one percent of children who die from SIDS. Employing the product rule, Dr. Kokes multiplied the probability of a child's dying of SIDS and the probability of a SIDS death involving cerebral swelling. He concluded that the "the mathematical possibility of having a SIDS death occurring with cerebral swelling would be 1 in 100,000 live births." Dr. Kokes then took into account the fact that Garrett was the second child in the family to die of SIDS. He multiplied the probability of Garrett's dying from SIDS, 1 in 100,000, by the probability of Brandi's dying of SIDS, 1 in 1,000. He concluded that the probability that Garrett died from SIDS was 1 in 100,000,000.

Dr. Norton also testified as to the probability that Garrett died of SIDS. Dr. Norton relied on different statistics that indicated that SIDS occurs in 1 infant out of every 2,000 live births.(4) Dr. Norton employed the product rule and concluded that the probability of two SIDS deaths occurring in one family is 1 in 2,000 multiplied by 1 in 2,000, or 1 in 4,000,000.

Petitioner moved in limine to exclude the expert testimony regarding the probability that a single family would suffer two SIDS deaths as well as the evidence that he was involved in Brandi's death. The trial judge denied both motions.
. . . .


. . . . Approximately fifty years ago, the medical community began a search to understand and prevent SIDS. . . . . Today, understanding of the etiology of SIDS still is incomplete. SIDS remains a "diagnosis of exclusion," meaning that a "diagnosis of SIDS reflects the clear admission by medical professionals that an infant's death remains completely unexplained." . . . .

Medical studies consistently have identified the following risk factors for SIDS: prone sleep position, sleeping on a soft surface, maternal smoking during pregnancy, overheating, late or no prenatal care, young maternal age, prematurity and/or low birth weight, and male sex. . . . . African Americans and American Indians have consistently higher rates, two to three times the national average. Because the cause of SIDS remains unknown, none of those risk factors are of help in calculating the probability that a child will die of SIDS. . . .

Beyond these commonly accepted risk factors, there is little agreement as to the causes of SIDS. This is particularly true with regard to the role of genetics. Some, including the State, argue that it is generally accepted that there is no genetic defect or condition that can be tied to SIDS. . . .

In contrast, a recent article in the Journal of the American Medical Association presents a study suggesting that SIDS may result from a genetic condition. . . . .This study draws into question the assertion that SIDS deaths within a single family are independent or unrelated events. . . . .

With this background in mind, we now turn to the product rule. The product rule "states that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur." People v. Collins, 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33, 36 (1968) (emphasis in original). See also Armstead, 342 Md. at 69-70, 673 A.2d at 236 (noting that the product rule is a probability principle that establishes that "the probability of two events occurring together is equal to the probability that event one will occur multiplied by the probability that event two will occur."). In Armstead, we explained that "[t]he classic illustration is coin tossing; the probability of finding heads on two successive coin tosses is equal to the probability of heads on the first toss, 50%, times the probability of heads on the second toss, 50%, equaling 25%. We noted that the product rule may be applied only to events that are unrelated to one another, or are independent. We explained:

"In the coin toss example, this means that the outcome of the first coin toss does not affect the outcome of the second coin toss, which is a valid assumption. By comparison, assume we wish to calculate the probability of having both a checking account and a loan from a particular bank. This is an example of non-independent or linked events. We can not calculate the probability of having both a loan and a checking account at the same bank by multiplying together the individual probabilities under the product rule because a person is more likely to obtain a loan from the bank where he maintains a checking account. To illustrate nonindependence as it applies to human characteristics (although not genetic characteristics), assume we wish to determine the probability a man will have both a beard and a moustache. Also assume that the probability of having a beard is 1/20 , and the probability of having a moustache is 1/10 . It would be incorrect to infer that the probability of having both a beard and a moustache, applying the product rule, is 1/200 , because it is likely that these are non-independent events; men who have beards are probably more likely than others to also have moustaches."

[citations omitted].

In the case sub judice, petitioner contends that the product rule should not have been used to calculate the likelihood that both of his children died of SIDS because it is not generally accepted in the medical field that SIDS deaths within a single family are independent. The State argues that the statistical evidence introduced at trial was generally accepted and reliable, and further, that because the risk factors for SIDS are independent, it was appropriate for the experts to utilize the product rule and to multiply the probability of one child dying of SIDS times the probability of a second child also dying of SIDS. The State posits that it is accepted universally that SIDS is not caused by any genetic defect, and that the testimony based on the product rule was therefore permissible. The State relies heavily on the conclusion of the Court of Special Appeals that SIDS deaths are independent events. The Court of Special Appeals reasoned as follows:

"[W]e merely note that appellant's argument that SIDS deaths are interrelated is not totally accurate. It is accurate to assert that the deaths labeled as SIDS deaths may indeed have a connection. The inaccuracy arises once that connection is discovered, because the deaths should no longer be identified as SIDS deaths. We must keep in mind that SIDS is a diagnosis of exclusion that is subject to change if an actual cause is uncovered. The scientific literature has shown that, from what is currently known, SIDS risk factors are not interrelated but are independent. This is particularly true of multiple SIDS deaths in one family, where the likelihood of recurrence is less than one percent."

[Citations omitted]

The State and the Court of Special Appeals cite articles that suggest that there is no genetic component to SIDS. Both fail to acknowledge that most of the articles reflect that it is unknown whether there is a genetic component to SIDS.

. . . .

In light of the widespread disagreement as to the causes of SIDS, we are unable to find general acceptance of the notion that there is no genetic component to SIDS. Unanimity is not required for general acceptance, . . . but it is clear to us that a genuine controversy exists within the relevant scientific community. In sum, there was inadequate proof of the statistical independence of SIDS deaths within a single family. Therefore, based on the current state of medical opinion, the product rule should not be employed in calculating the likelihood of multiple SIDS deaths within a single family. . . .

. . . .

As a fall back position, the State argues harmless error. Two of the State's four expert witnesses testified that the chances of two SIDS deaths in one family were infinitesimal. Dr. Kokes testified that there was one chance in 100,000,000 that two babies of a single family would die of SIDS, where one has brain edema. He characterized these odds as "so low [as] to make it impossible." Dr. Kokes also testified that absent these statistics, his characterization of Garrett's death would have changed. Dr. Norton testified that the chance of SIDS occurring twice in the same family is one in 4,000,000. She also testified that the statistics contributed to her conclusion that Garrett's death was a homicide.

In Reed, we noted that "[l]ay jurors tend to give considerable weight to 'scientific' evidence when presented by 'experts' with impressive credentials." . . . . The case sub judice was based entirely on circumstantial evidence. In light of the role the statistics, and particularly the product rule, played in the expert's testimony, we are unable "to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict." . . . . The error was not harmless. Accordingly, we find that the trial committed reversible error in admitting the statistical calculations based on the product rule. Inasmuch as the other matters raised on appeal by petitioner may come up again at any new trial, for the guidance of the trial court, we shall comment upon petitioner's remaining contentions.


. . . .

We turn next to petitioner's contention that the trial court erred in admitting evidence of the alleged murder of his infant daughter, Brandi, six years before the alleged murder in this case. The State sought a pre-trial ruling regarding the admissibility of evidence related to Brandi's death. The court considered certain exhibits introduced by the State, facts agreed to by both parties as uncontested and the arguments of counsel. In a memorandum opinion and order, the trial court ruled that the evidence was admissible.

Before this Court, petitioner argues that the evidence of Brandi's death was inadmissible other crimes or bad act evidence under Md. Rule 5-404(b) because it lacked special relevance, there was not clear and convincing evidence of his involvement in Brandi's death, and the probative value of the evidence was outweighed by unfair prejudice. The State argues that the evidence was admissible on several bases--for identity, motive, absence of accident and intent. The State maintains that petitioner's involvement in Brandi's death was established by clear and convincing evidence, and that the probative nature of the evidence outweighed the prejudice.

We shall not address this issue because in light of our ruling as to the expert's reliance on the product rule, it is unclear what the substance of the testimony will be in any future proceeding. The expert testimony on the cause and manner of Brandi's death will bear on the determination of whether her death is viewed properly as a prior bad act and, consequently, whether the admissibility of evidence surrounding her death is subject to Maryland Rule 5-404(b). The expert testimony will also affect if, and how, the evidence of Brandi's death may be used to prove the corpus delicti whether "other crimes evidence" and the like is admissible to prove the corpus delicti.
. . . .

For all the reasons stated herein, the judgment of conviction is reversed.

[Concurring opinion omitted].

________________________ _____________________

If evidence of a prior unusual event can be admitted as proof of the unlikelihood of chance occurrence of two similar unusual events, should expert testimony ever be allowed to assist the jury in understanding the magnitude of the likelihood of such two such occurrences? In Wilson, as in Collins (see p. 93) the appellate court found that the proponent of the testimony had failed to establish independence of the two occurrences by failing to negative a possible genetic susceptibility to SIDS on the part of the defendant's children. Had the court been convinced that there was no genetic link, should the court have admitted the experts' evidence? If such evidence is admitted, how should it be argued to the jury?
The brief discussion at the end of the opinion on the admissibility of evidence of the unexplained death of the defendant's other child hints that the evidence might have been admissible to show the corpus delicti, i.e., that an unlawful death had occurred, but not to show that the defendant was guilty of causing that death. In such a case the court would give a limiting instruction to that effect and the state's attorney would not be permitted to argue that the coincidence implied that the defendant had caused the death. Is this a distinction without a difference?

1 In 1989, the National Institute of Child Health and Human Development published the following definition of Sudden Infant Death Syndrome (SIDS): "The sudden death of an infant under 1 year of age, which remains unexplained after a thorough case investigation, including performance of a complete autopsy, examination of the death scene, and review of the clinical history."

2 We discuss the product rule in Section II. In general terms, the product rule has been defined as follows: that "the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur." . . . .

3 Dr. Kokes testified that this figure was drawn from ARMED FORCES INSTITUTE OF PATHOLOGY, HISTOPATHOLOGY ATLAS FOR SUDDEN INFANT DEATH SYNDROME (1993). He also specified that he was testifying as to statistics on Caucasian children (both Brandi and Garrett were Caucasian) and that the statistics were relevant to the time period when Garrett died.

4 Dr. Norton testified as to the source of her statistics as follows:

"The figure that I use ... is derived from the statistics that are coming out of what I consider to be good medical examiner's offices, where the criteria--where the minimum criteria are adhered to.

So that I know that the child at least has been autopsied; that the child is not of an inappropriate age, you know, 12 months, 15 months, something of that nature; that toxicology of a reasonable nature has been done; that microscopic examination has been done; and that we can be reasonably assured that at least the death does fall within what is supposed to be the rules, as it were, before you can call a death SIDS. So, the information or the statistic that I use is one that is generally accepted as that which is produced by a good medical examiner system."
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