Phillips v. State
163 A.3d 230
| Md. Ct. Spec. App. | 2017Background
- Appellant Bashunn Phillips was indicted for first-degree murder and related firearm offenses for a December 10, 2013 homicide; the State sought to introduce an RF signal propagation map based on an FBI "drive test" conducted in October 2014 to locate Phillips’s phone.
- Phillips moved in limine (Aug. 2015) to exclude the drive-test map and related expert testimony, arguing the methodology is novel and not generally accepted under Maryland’s Frye–Reed standard; he conceded traditional historical cell-site "ping" evidence is admissible.
- The trial court held a multi‑day Frye–Reed hearing (Sept.–Oct. 2015) and, in a written opinion (Feb. 12, 2016), excluded the drive-test evidence: (1) the methodology was novel and not generally accepted in the relevant digital forensic community; and (2) the State’s experts were not qualified under Maryland Rule 5‑702.
- The State sought in banc review (three-judge panel) under Md. Const. art. IV, § 22 and Maryland Rules 4‑352/2‑551; the in banc panel accepted jurisdiction, reversed the trial court, and allowed the evidence (June 3, 2016).
- Phillips appealed the in banc panel’s decision to the Court of Special Appeals and challenged the panel’s jurisdiction to hear an interlocutory evidentiary ruling; the Court of Special Appeals denied the State’s motion to dismiss Phillips’s appeal, then held the in banc panel lacked jurisdiction because the State had no statutory right to appeal the interlocutory order, vacated the in banc order, and remanded with directions to reinstate the trial court’s exclusion order.
Issues
| Issue | State's Argument | Phillips' Argument | Held |
|---|---|---|---|
| Whether a circuit court in banc panel had jurisdiction to review the trial court’s interlocutory grant of a motion in limine | Art. IV, § 22’s phrase “any point, or question” and Rule 2‑551 permit in banc review distinct from a statutory appeal; the Constitution grants an in banc review right independent of statutory appealability | In banc appeals are coextensive with statutory appellate jurisdiction; State had no statutory right to appeal this interlocutory Frye‑Reed exclusion, so in banc lacked jurisdiction | In banc panel lacked jurisdiction: a party may appeal to an in banc panel only when the order appealed would be appealable to the Court of Special Appeals under applicable statutes; vacated the in banc order and reinstated trial court’s order |
| Whether the trial court correctly treated drive‑test mapping as novel scientific evidence requiring Frye‑Reed scrutiny | Drive tests are widely used by industry and minimally affected by temporal factors; thus are generally accepted and not novel | Drive tests are routine for network engineering but are not generally accepted in the digital forensic community as predictive of past RF conditions; temporal and environmental variability undermine reliability | Court did not reach merits because in banc lacked jurisdiction; trial court’s Frye‑Reed analysis therefore stands for now |
| Whether the trial court erred in finding the State’s experts unqualified under Md. Rule 5‑702 | State’s experts (FBI agent and T‑Mobile engineer) were qualified in historical cell‑site analysis and RF engineering and could aid the trier of fact | Defense expert disputed their qualifications in digital forensic science and the sufficiency of the factual basis for extrapolating a past location from a later drive test | Court did not reach merits; trial court’s qualification ruling is reinstated pending further trial proceedings |
| Proper procedural remedy when an in banc panel hears an order that was not appealable to it | In banc decision is final and appealable; where panel exercises jurisdiction it may decide merits | If in banc lacked jurisdiction the higher court should vacate the panel’s order and remand to reinstate the trial court’s order | Court vacated the in banc panel’s order, instructed the in banc panel to reinstate the trial court’s February 12, 2016 order, dismiss the State’s appeal, and remand to the trial court |
Key Cases Cited
- Buck v. Folkers, 269 Md. 185 (1973) (in banc decision is final and appealable; appellate timing rules apply)
- Estep v. Estep, 285 Md. 416 (1979) (court in banc acts as appellate tribunal; only final or otherwise appealable orders may be taken in banc)
- Haberlin v. Board of License Comm’rs, 320 Md. 399 (1990) (in banc is an alternative to appellate review but jurisdiction depends on statutory right to appeal)
- Dean v. State, 302 Md. 493 (1985) (in banc jurisdiction coextensive with Court of Special Appeals appealability; in banc lacked jurisdiction over nonappealable order)
- Dabrowski v. Dondalski, 320 Md. 392 (1990) (in banc orders are final and appealable; timeliness and statutory authorization govern jurisdiction)
- Berg v. Berg, 228 Md. App. 266 (2016) (recognized in banc review of certain post‑trial motions but did not expand in banc jurisdiction beyond statutory appealability)
- Wilson v. State, 370 Md. 191 (2002) (explaining Maryland’s Frye–Reed general‑acceptance requirement for novel scientific expert testimony)