*1 104A.3d Maryland STATE Joseph PAYNE & Bond. William Jason 85, Sept. Term,
No. 2013. Maryland. Appeals Court Dec. *2 Gansler, Pritzlaff, F. Atty. (Douglas Asst. Gen. Page
Sarah Baltimore, MD), brief, on for Petition- Maryland, Gen. of Atty. er/Cross-Respondent. Baltimore, Tetrault, Defender, Public
Joseph Assigned B. MD, brief, Respondent/Cross-Petitioner. for (The Law Donnelly, Assigned
Thomas Public Defender M. LLC, Baltimore, MD), on Donnelly, M. Offices Thomas brief, Respondent/Cross-Petitioner. BARBERA, C.J., HARRELL,
Argued before: GREENE, ADKINS, BATTAGLIA, and IRMA McDONALD (Retired, JJ. Specially Assigned), RAKER S.
BATTAGLIA, J. in Bond Payne and Jason were convicted
Joseph William trial murder and joint degree felony kidnapping, along of first felony. handgun in the with the use of a commission based, testimony of were in on the part, These convictions County the Baltimore Police Detective Brian Edwards of testified, having without Department. Detective Edwards Rule 5- Maryland an under qualified expert been as witness 702,1 Payne’s phone that and Bond’s cell by interpreting from period from Nextel2 for the subpoenaed Sprint records Maryland provides: 1. Rule 5-702 admitted, Expert may by experts. testimony in the
Testimony be otherwise, opinion or if the court determines that the form of an testimony trier evidence or will assist the of fact to understand the to determination, making issue. that court determine a fact in In (1) qualified expert by an shall whether the witness determine education, skill, (2) appropri- knowledge, experience, training, or (3) particular subject, expert testimony and ateness of the support expert to whether factual basis exists testimo- a sufficient ny. Nextel, Sprint Sprint Corporation, and wired now offers wireless consumers, governments. to and communications services businesses 27, 2007, he to determine the August August was able cell calls phone through particular location of towers which map were routed and to the locations of those towers on a plot attorneys in to the and Payne relation crime scene. The objected testimony Bond to Detective arguing, Edwards’s alia, expert. inter that he have as an qualified should been judge objections The trial their that opined overruled testimony only Detective Edwards’s facts that could be related independently verified from the records.
The both judge against trial also admitted into evidence Payne Bond six recorded conversations which not, Bond participant Payne was but was which the suggested night discussions an alibi on the of the murder. After trial judge had determined that a conspiracy conceal the murder Payne existed that and Bond were participants she six conspiracy, generally admitted recordings.
In a reported opinion, Appeals the Court of Special reversed convictions, Payne’s and Bond’s ruling the trial court in admitting erred testimony Detective Edwards’s without his having qualified expert been as an Payne witness. & Bond State, (2013). 211 Md.App. 65 A.3d 160-61 Thus, a trial new was ordered for both defendants. Concern re-trial, ing an likely upon issue to arise the intermediate appellate court apparently determined that Bond’s statements during the wiretapped telephone calls could be admitted against Payne, not as co-conspirator, the statement of a but 5-803(a)(l),3 under Maryland permits Rule which admissions *4 NYTimes.com, Sprint Corporation, http://topics.nytimes.com/top/ Nextel (last news/business/companies/sprint_nextel_corporation/index.html? 8, 2014). visited Dec. 5-803(a) Maryland governing hearsay exceptions Rule the where unavailability required declarant’s is not states: rule, following by hearsay The are not though excluded the even the declarant is available as a witness: (a) by party-opponent. against Statement A that is statement offered party a is: and Id. at at We 65 A.3d 172-73. party-opponent. of a to the for consider granted the State’s Petition Certiorari following question: discretion, court, in the of its sound
May a trial exercise witness, expert, as an lay qualification allow a without that involve verifiable facts do not testify objectively about any or drawing or inference forming any opinion the witness conclusion? the follow- Payne’s cross-petition address granted
We also ing question: ruling wiretap in Appeals
Did of err Special the Court but by respondent respondent statements made Bond not Payne against Payne as state- were nevertheless admissible aby party opponent? ments State, (2013).
Payne & Bond
434 Md.
685 Early investigation, Pikesville. recovered a detectives victim, Stewart, of from of scrap paper the bedroom the Glen numbers, containing two names and associated one of phone which of Investigation was that Desmond Jones. of Desmond phone identify Jones’s cell records led to numbers detectives Bond, Johnson, Payne, Tyrice associated with Christopher Brittany McCant and Keller. obtained dialed num- Detectives (“DNR”) capture ber recorder authorizations to the numbers phones by of called According those individuals. to the State brief, in its showed “DNRs numerous calls between Keller, McCant, Bond, Payne, Johnson, and Jones” around the time of police interviews of McCant and Keller late October of early and November 2007. of
Investigation Jones’s records also led Detective Edwards additional of subpoena “phone sets records” associated with communicated, numbers with totaling which Jones “close to a hundred “phone different sets of records”. These records”, which were electronically received from Nex Sprint tel, pages” totaled “thousands printed. when Detective Edwards testified that he then chose individuals identifiable as Bond, most “pertinent”, including Payne and for whom he August amassed records their cell from calls 3 through August Apparently, informa amassed tion was the form of Detail Payne’s Call Records for and Bond’s phones, cell which roughly thirty forty accounted for pages Payne, while were 10 pages”. Bond’s “under that, Detective Edwards further testified once he isolated separate working parsed Payne’s he copies, records to a single page document and Bond’s quarter-page records to a exhibit, of trimmed call depicting entries communications to or Payne’s from phones Bond’s within the timeframe from August 26 to August under headings “Dura- tion”, “Direction”, “Dialed”, Tower”, “Beginning “Ending Tow- er”, “Lat” “Long”; each document was admitted into Records, 4. These records were Call Detail as indicated the inclusion information, of cell tower identification as discussed infra. 11B, from respectively.5 Excluded evidence Exhibit deter both was information that Detective Edwards exhibits redundant, extraneous,6 as well as identification mined was *6 for entry for towers associated with each numbers the cell geographical his own derived coordin which he substituted ates.7 also that he could determine
Detective Edwards testified called, time, the was whether call the call number phone the cell through and the cell tower which incoming outgoing or communicated, the he had complete based on records phone objected counsel Payne’s from Nextel. When Sprint received ground the that Detective testimony to the Detective’s on to qualified expert as an order needed to be Edwаrds data, the State that the actual records responded the interpret as use of the rec instructions to the step-by-step contained the ords, the actual records nor instructions although neither were introduced into evidence.8 the presence outside of the of proffered,
Detective Edwards that to tower procedure the he used determine cell jury, him, matching According process required to the locations. a cell call a table points associated with certain data or on “an Excel on an unnamed “secure Web site” available records”, the to determine the spread sheet that comes with by the 5. exhibits are to those introduced State. All references to what Detective Edwards consid- 6. record is unclear information The Sprint that he in the Nextel Call Detail Records ered to be "extraneous” received. Regarding longitude, Detective Edwards stated: latitude * * * right-hand two col- EDWARDS]: And then the [DETECTIVE again paste longitude cell tower are cut and latitude umns corresponds to those calls. information that clarified, testimony, towards the end of his 8. Detective Edwards later records, part were were not but the instructions something produced record: he from another part included cell records. ATTORNEY]: This is as [STATE’S something produced is I EDWARDS]: That not—this [DETECTIVE another from record. longitude latitude and of the corresponding cell tower.9 Nei ther the “Excel sheet that comes spread with the records” nor the “secure site” that allegedly Web maintains cell tower information was admitted into evidence. Satisfied that Detec qualified tive Edwards need not have been an expert as he did to testify, point, the trial judge permitted the State to further question the Detective about location of the cell towers that Payne’s transmitted and Bond’s communi cations listed in Exhibits and 11B.
Detective Edwards testified thereafter regarding the loca tion of the first cell tower to which Bond’s cell phone allegedly crime, connected on the night a cell tower located Drive, Menlo opined that the cell tower was between one and a half to two miles from the crime scene.10 The State *7 explained 9. process Detective Edwards determining his the location of a cell tower as follows: numbers, [DETECTIVE EDWARDS]: Use the last two sets of first ID, being lag being the Says second the cell ID. match that to the table, multiple ways you get which there is can the cell tower it, information. There’s a Web site that maintains secure Web site. spread There’s an Excel there, sheet that comes with the records. Go in lag. gives you longitude. search that It Says you latitude and it, any mapping can use point software. You look at find the on the map where the cell site is located. procedures Detective Edwards’s were as follows: [STATE’S you you ATTORNEY]: And indicated were able to look at time, phone duration, that; cell records and check the things like is that correct? [DETECTIVEEDWARDS]: That's correct. connect, [STATE’S The register ATTORNEY]: direct did it off the cellular tower? [DETECTIVE It EDWARDS]: did. you [STATE’SATTORNEY]:Were able to retrieve the information for specific tower from that record? [DETECTIVEEDWARDS]: Yes. you [STATE'S ATTORNEY]: Were able to determine the location of that tower? [DETECTIVEEDWARDS]: Yes. [STATE'S And where was the location that tower? [sic] ATTORNEY: objеction. [COUNSEL FOR PAYNE]: THE COURT: Overruled for previously the reasons stated. Edwards created offered, map Exhibit Detective as then to be the what he determined printed he had which upon as the location of Drive tower as well of the Menlo location that he deter further testified Edwards murder.11 Detective cell off of second registered cell also mined Bond’s which, accord building, Towers on the Balmoral tower located crime a mile from the him, approximately located was ing which was scene, was reflected Exhibit all of which admitted into evidence. admitted into evi- already photograph,
An oversized aerial surrounding Villa Nova of the area dence as Exhibit Edwards. then was shown to Detective Queen Anne Roads the location graphic showing a preprinted 2 contained Exhibit longi- latitude and That was located at EDWARDS]: [DETECTIVE Drive. by negative 76.696565 located on Menlo tude of 39.350854 away that from the location of How far ATTORNEY]: [STATE’S crime scene? Say approximately and a between one EDWARDS]: [DETECTIVE the bird flies. half two miles as opinion Appendix copy at the end of this of Exhibit 9 is attached 11. A Attorney questioned Detective Edwards about State’s A. The Assistant rings he determined to map concentric around what which contains Edwards, According these to Detective of the towers. be the location only rings were units of measure: used, you it mapping program that does The ATTORNEY]: [STATE’S was? show where It does not. EDWARDS]: [DETECTIVE is? Does it show where tower ATTORNEY]: [STATE’S latitude and It it as I entered the EDWARDS]: shows [DETECTIVE longitude. *8 map has circles on it? ATTORNEY]:The [STATE’S It does. [DETECTIVEEDWARDS]: regards anything in to the circles mean ATTORNEY]: Do [STATE’S where this is? No. EDWARDS]: [DETECTIVE anything regards they in to Do mean [STATE’S ATTORNEY]: speak? power of the tower so to No. EDWARDS]: [DETECTIVE regards any they anything in Do mean ATTORNEY]: [STATE’S evidence? scientific No. EDWARDS]: [DETECTIVE they Are terms of measurement? [STATE'SATTORNEY]: They are. EDWARDS]: [DETECTIVE body identifying where the victim’s was found and sticker the home of a witness. The State then asked Detective depicting a sticker the location of the place Edwards 2, on Balmoral Towers cell tower Exhibit which he did. Edwards, presented The State then Exhibit 3 to Detective aerial on a photograph showing, which was another oversized scale, general the same area larger geographic depicted during Exhibit and which was admitted into evidence Detec testimony. On Exhibit had identi tive Edwards’s State victim’s body, fied the location where officers found the victim, Payne, addition to the location the residences of the investigated by police Bond and two others who had been Edwards, with the murder.12 at the connection Detective request, again by State’s identified and indicated stickers the locations of the Menlo Drive cell tower and the Balmoral cell on Exhibit 3. Towers tower that, by using
Detective Edwards further testified the call 12—the edited associated entries Exhibit records with Payne’s cell off Payne—he phone registered determined cell on the of the murder. night of the Balmoral Towers tower map The State then offered admission Exhibit second showing created the Detective what he had determined to tower, be the location of the Balmoral Towers cell as well as the location of the crime scene.13
Based on Detective Edwards’s the Assistant testimony, Attorney, closing, Payne’s in his repeatedly urged State’s and Bond’s Detail Records and thе “point guilt” Call to their ... significant puts right “evidence is because it them there”: calls, going I am to start the cell phone with the evidence calls, of the cell the cell phone towers. The fact-that previously placed by Exhibit 3 also contained sticker another 12. indicating investigated by witness the residence of a sixth individual police. copy opinion Exhibit 10 is attached at A the end of this Appendix B. Exhibit like Exhibit shows a circle around what Detective Edwards determined to be the location of the Balmoral tower, putatively Towers cell which is a unit of measure. *9 off of the Balmoral registered cell Joseph Payne’s phone at the body victim] from the away [the Towers a half mile murder, registered off phone Jason Bond’s cell time of the burning. at the time of the away tower half a mile that same But that’s not guilt. calls to their phone point But their cell alone. standing I am going the cell First starting phones.
All with right, of the cell Bond. does the evidence to talk about Jason What First, August heard that on you? you towers tell phone is off of phone registered Jason Bond’s p.m. at 9:14 half, Towers, away. two miles a mile and Menlo tower infor- interesting about the cell really But what is heard from Detective Edwards you mation is 30 when August August those 23rd and periods between Bond’s coming calls from Jason he monitored one time at off the Balmoral Towers registered he phone, He lives time. And that makes sense. 1:03 a.m. No other County to the has no reason to come out City. in the He to come out to the He has no reason except dump-off. for body. to burn County except [the victim’s] you information tells that at The towеr Joseph Payne.... murdered, being is at the time p.m., right [the victim] 10:02 Balmoral off of the registering the defendant’s body. from the away a half mile Towers of the Balmoral Tower. register time did it off Only one And that p.m. that was at the time 10:02 One time. And in the He has Payne City. lives Joseph makes sense because County spot to an isolated no reason to come out to this dump-off.... why That is except the woods why and that is significant, evidence is information and this there. puts right their because it them points guilt it (italics added). significance had testimony Detective Edwards’s
Clearly, Detective should have been case. present Whether in the engage allowed to being before expert as an qualified location of the cell geographic identifying process *10 on understand depends themselves and the locations towers their contents records and what phone what are cell ing just of cell significance phone understanding reveal. Because merely beyond placing extends far varying contexts use inter calls, e-mailing, photographing into receiving phone (see Rainie, Pew Re & Lee Duggan Maeve browsing, net (Nov. 25, 2012), available search, Phone Activities Cell http://pewinternet.org/Reports/2012/Cell-Activities.aspx 2014) (last than half of cell (finding that more visited Dec. or pictures, to take send phone use their cell phone owners internet)), the potential or access the messages, receive text from cell use is extensive.14 See phone information retrievable may phone be collected is: list of cell records that 14. A non-exhaustive (cid:127) equipment Subscriber and identifiers Datе/time, (cid:127) settings language, and other (cid:127) information Phonebook/Contact (cid:127) Calendar information (cid:127) messages Text (cid:127) incoming, logs Outgoing, and missed call (cid:127) Electronic mail (cid:127) Photos (cid:127) recordings Audio and video (cid:127) messages Multi-media (cid:127) messaging Instant (cid:127) browsing Web activities (cid:127) Electronic documents (cid:127) Social media related data (cid:127) Application related data (cid:127) Location information (cid:127) Geolocation data 2014), al., (May Ayers et Guidelines on Mobile Device Forensics 49 Rick (last http://dx.doi.org/10.6028/NIST.SP.800-101rl visited available at 8, 2014). forensically germane, which Dec. Data within a that is issue, "Metadata” is here at is often in the form of metadata. is not provide the author- data” which can "information about "data about phone” ship” or the of the cell that created a of a document “make Daniel, Digital Legal
picture. Larry E. Daniel & Forensics for Lars E. Understanding Digital From the Warrant Professionals: Evidence 27, 27.2.3, (2012). §§ 27.2.4 In the course of an the Courtroom investigation, identify piece when a this information can be used to created, data, say picture, was when a website was accessed or Breton, smartphone. 7 & 8 through a United States v. 740 F.3d n. (1st Cir.2014). litigation, presented in the course of When metadata is al., Ayers Rick et Guidelines on Mobile Device Forensics 48- 2014), (May available at http://dx.doi.org/10.6028/NIST.SP. (last 2014). 800-101rl visited Dec. is,
A effectively, cell a sophisticated two-way radio that operates within a cellular network. Clifford S. Fishman McKenna, & Anne T. Wiretapping Eavesdropping: & Surveil (3d 2014). § lance the Internet Age 28:2 ed. A cellular network is a wireless network added to Plain Old Tele (POTS), phone System which regular, is the wired form of Daniel, telecommunications. E. Larry Daniel & Lars E. Digital Forensics for Legal Professionals: Di Understanding gital Evidence From the § Warrant to the Courtroom 33.1 (2012). In order to add a cellular network to the POTS network, equipment is added to existing telecommunica tions system. piece Id. One of that equipment is the cell *11 antennae, tower and its attached which is component itself one of a cell It through site.15 Id. the cell tower that a cell phone maintains a connection to the telecommunications net work. Id. comprised
Cellular networks are of a distribution of land “cells”, areas called each of which is served at least one cell tower. Id. The arrangement of cells “is based on concept the of the dividing landscape coverage into cells typically three miles (Anna diameter”, F. Tapp, Mapping Impact the of Vegeta- tion and Terrain on Signal (2008), Cellular Levels 4 available (last at http://libres.uncg.edU/ir/uncg/f/umi-uncg-1612.pdf visit- 8, 2014)); therefore, ed Dec. the term “cell” refers to a defined geographic region. McKenna, Fishman § & at supra, 28:2. These cells are “arranged pattern of a hexagonal grid or Blank, honeycomb.” Aaron The Limitations and Admissibili- ty Using Historical Cellular Site Data to Track the Loca- of Phone,
tion a Cellular Rich. (2011), 18 J. L. & Tech. 5 of accomplished through expert testimony. it is E.g. United States v. Lanzon, (11th Cir.2011). 639 F.3d 1297 station, component 15. The other of the cell site is the base transceiver phones which handles communication with the cell “and facilitates communication between the wireless network and the landline net- Daniel, supra, § work.” Daniel & at 33.1. In re an citing Application United States Order for оf Tel., Prospective Info, Cell Site Location on Certain Cellular (S.D.N.Y.2006). F.Supp.2d A cellular network is 4), so that designed overlap,16(Tapp, supra, the cells at intersect, the cell tower lies where the several cells not at the McKenna, § of a cell.17 center Fishman & 28:2. supra, coverage The of a cell from one-half particular may range mile,18 environment, particularly the urban to as far as Blank, from thirty miles the cell tower. at 5. supra, a variety There are of factors affecting which tower cell connect, beyond merely will the distance between the originating phone, cell the receiving cell and the cell tower. These factors include technical characteristics itself, availability location; site such as the of a site and its site, technical characteristics of the antennae on a such as the direction they facing; are technical characteristics of the phone; and environmental and geographical factors:
First, the technical may characteristics of cell sites affect (1) available; (2) signal strength: number sites (3) maintenance or repairs being performed; height (4) tower; level; (5) height cell wattage output; above sea (6) range Second, of coverage. technical characteristics of the antennas on cellular may signal strength, sites affect antennas, such as the number of the angle and direction the antenna, antenna is facing, height of each and call traffic Overlapping cells is done to achieve what is called “hand-off”. area, only Because each cell tower reaches a limited as the user moves cells, signal between through must transfer from tower to tower *12 Mid-Atl., process called a “hand-off”. Nextel Commc’ns the Inc. v. of Brookline, Mass., (D.Mass.2007). F.Supp.2d Town 520 242 To of “hand-off”, effectuate over-lapping the “there must be sufficient cover age adjoining between cells”. Id. diagram description arrangement 17. A and of this is included at the end opinion Appendix of the as C. technology permits 18. Newer reducing which ever smaller cells is the size of buildings. some cells to as small as individual floors within (GPS) Privacy Geolocational Hearing and Surveillance Act: on H.R. 2168 Crime, Terrorism, the Subcomm. Security, and Homeland Before (2012) (statement Cong. Blaze). 112th 15 for the record of Prof. Matt 694 Third, technical charac- each antenna. through
processed output the wattage of such as phone, teristics may affect capability, broadband phone’s of generation Fourth, upon signal strength may depend strength. signal factors, including geographical environmental Fi- weather, development. of urban topography, and level alter the phone may use of the indoor or outdoor nally, strength signal. of the Evans, F.Supp.2d States v. at 6-7. See also United
Id. (N.D.Ill.2012) that could cause (describing the factors site, the locations particular including to connect to a phone traffic); Tapp, volumes of network buildings high of (“A physical is most impacted at radio wave supra, cover”; or near line sight land “Without line nature of the antenna, the cellular will not phone access to an sight of its distance to the transmitt signal, regardless receive a er.”).19 aliа, for, inter
All connect to a cell tower phones cell Daniel, §at 38.2.1. “Com supra, communication.20 Daniel & initiated, a text when a call is or phone munication” occurs Pulse, Mobile sent. United Nations Global message See (Oct. 2013), at 1 avail Development Phone Network Data for http://www.unglobalpulse.org/sites/default/files/ able at 20Prim- 20Development% 20Data% 20for% Mobile% 2014). (last a com Dec. Records of er_Oct2013.pdf visited external phone may munication via a cell be classified either internal; records are those that exist outside or external while provider, with the cell service phone, typically the cell in the itself.21 See internal records are those stored Tapp study as a substitute for a cell A "transmitter" in the was used 19. signal importance sight in of a line of tower in order to demonstrate reception. Tapp, supra, at 9. "register” with the connects to a cell tower to 20. A cell also 33.2; Daniel, § & supra, at Fishman network. Daniel & cellular McKenna, supra, § 28:2. phones beyond scope internally contained cell Information objects and data such as inquiry, we note that it includes of our but
695 Darnell, Foren- Timothy Admissibility M. O’Shea & James of Evidence, Attorneys’ Phone 59 United States Bulletin sic Cell (2011). 42, 42 are may designated they
External records be to whether v. historical or nature. See United States prospective (D.D.C.2012). Jones, 203, 207 Historical and F.Supp.2d 908 only temporal data not differ because of the prospective records, purpose nature of the but the of their creation.22 is already Historical data is that which has been created and already kept in existence as records the course of the cell “billing, coverage, analyt business for provider’s service (Daniel Daniel, 33.3), §at and include purposes, supra, ics” & information,23 details, Detail message subscriber list text Call metadata, “pictures, logs, messages, text as well as call and contact Darnell, Timothy Admissibility & lists.” M. O'Shea James Forensic of Evidence, 42, (2011). Attorneys' Cell Phone 59 United States Bulletin 44 Prospective going data is information collected "on a real-time basis forward”, created, provider’s and is not because of the cellular service business, Jones, part ongoing investigation. F.Supp.2d but as of an 908 (D.D.C.2012) (explaining prospective at 207 data is obtained “from magistrate judge’s authorizing the date of the order” collection of such data). Privacy See also Electronic Communications Act Amendments (2011) Cong. (proposing Act 112th of S. amendments separately addressing concerning geoloca- the retrieval “records ... accessing acquire tion” and “an electronic communications device to information”). geolocation Prospective data is not in issue in the case, present though appears even it from the case that record of this police present Prospective may in the case used DNRs. data include judicially pen registers, data derived from authorized which record issue, devices, trap numbers called from the and trace call, capture incoming which number of an because these may only showing devices be installed with a "that the information likely to be obtained such installation and use is relevant to an 3127(3), (4) (2012); ongoing investigation.” § criminal See 18 U.S.C. 3123(a)(1) (2012). (“DNR”) § A 18 U.S.C. Dialed Number Recorder Marine, type pen register. a device considered to be a State See (Del.1983) (“a (known 464 A.2d dialed number recorder as a pen register)”). 23. Subscriber list information includes “the listed names subscribers addresses, numbers, telephone of a carrier and such subscribers' or 222(h)(3)(A) (2012). advertising primary § classifications”. 47 U.S.C. information); Ayers, (listing types supra, See at 53 of subscriber Law Guide, 5, 2008), Legal Compliance (May Enforcement Verizon 8 avail- Law En histories. See
Records,24 payment copies bill 2008), Guide, (May Verizon Legal Compliance forcement *14 https://www.aclu.org/files/cellphonetracking/ at available (last Dec. visited 20120328/celltrackingpraJrvine7_irvineca.pdf 2014) (hereinafter guide”); State legal compliance “Verizon M2012-01150-CCA-R3-CD, at op. Cotham, slip No. 2014) (testifying July (Tenn.Crim.App. 3778613 2014 WL by the records were created “that historical explained officer business”); Thomas A. in the normal course company phone Evidence in Analysis Cell Site O’Malley, Using Historical 16, 22- Trials, Bulletin Attorneys’ States 59 United Criminal (2011) “[rjecordkeep providers’ service (discussing cellular maintenance”). ing for business made, is a call or transaction phone a mobile “Whenever (CDR) automatically generated by Detail Record is Call Pulse, Nations Global United operator.”25 mobile network Detail Record contained a Call at 1. The information supra, standardized, (id.), are certain fields but there entirely is not shown, the cell tower the the location of including regularly at 73. Ayers, supra, call. to at the start of the connects during a cell connects in the tower which Any change however, in the Call Detail call, necessarily not included a Reсord.26 Id. https://www.aclu.org/files/cellphonetracking/20120328/cell at able 8, 2014); (last Sprint, Dec. Sub-
trackingpra_irvine_irvineca.pdf visited Quick ver. Compliance, Reference Handbook poena Law Enforcement 3.1, https://info.publicintelligence.ne1/SprintSubpoenaManuEil.pdf 8, 2014). (last Dec. visited "record-keeping system, usually a used A Call Detail Record is 24. purposes, and records details accounting administrative tracks Petersen, The Telecom- incoming outgoing calls”. Julie K. about (2d 2002). Dictionary ed. Illustrated munications any refers to instance of telecommu- as used here A "transaction” Pulse, supra, at 1. United Nations Global nication event. changes non-mandatory in service dur- types data include 26. Other connection, triggered part supplementary ing services connection, billing Ayers, supra, at 73-74. information. and additional typically presented Cell tower location is in a Call Detail by way Record of a “cell tower identification number”. Daniel Daniel, § supra, presented & 33.4. As in a Call Detail Record, this in ways specific information is coded to the provider, typically cellular ID including LAC and a Cell ID.27 specific Id. The location of a tower listed on the record then IDs, depends determining, from those the cell tower which call, received but not the location of that cell tower relative nor, phone, to the necessarily, any intervening cell towers may which have picked up the communication. Once the identified, tower’s cell tower identification number is those numbers are matched with a list of cell provided by towers company, cellular where an addrеss or latitude and longitude for the tower in question may § be determined. Id. at 33.4.
Against foregoing technical background, ques *15 Edwards, tion becomes whether Detective testifying when process by about the which he path derived the communication Payne’s calls, and Bond’s cell as well as his conclu sion that the Menlo Drive cell tower and the Balmoral Towers cell tower were pertinent the most towers by Payne’s utilized and Bond’s cell phones,28needed to be an qualified expert.29 as parlance, In cell network the "local area code” or "LAC” ID 27. "determines the respective area in which the cell and the base station (filed BS is located.” U.S. Sept. Patent No. 7576692 col. 9 1. 55-56 2004). general A Cell ID is used to "describe the location of a handset” ID?, T, being particular as within a https:// cell. What is Cell AT & (last developer.att.com/developer/tier2page.jsp?passedltemld=3100144 8, 2014). visited Dec. by provider may analyzed Historical data mainlained a cellular be 28. tower; determine the location of a cell commonly through in relation to a cell most process triangulation. known as See & Fishman McKenna, supra, argues triangulation at 28:2. The State before us that did, is what agree not Detective Edwards testimony and we that his fell identifying Payne’s phones short of where and Bond’s cell were located State, pertinent August at the time of the calls on 26 and 27. The however, certainly argued closing Payne’s in the location of and Bond's phones put vicinity cell them in the of the crime scene at the same time crime, relying as the testimony. on Detective Although Edwards's triangulation germane holding, is not likely step to our it is the next in analysis. addrеss, argue, 29. The State did not and therefore we need not that Detective summary Maryland Edwards was offered as a witness under 698 Mary a review of upon also depends this
Answering question 30and 5-702.31 Rules 5-701 land very testimony may opinion offer A witness non-expert 5-701, Rule circumstances, Maryland by proscribed limited “(1) an that is both opinion to offer lay allows a witness which (2) of the witness rationally perception based on testimony or understanding of the witness’s to a clear helpful for the The rationale a fact issue.” the determination must be the evidence is two-fold: by set Rule 5-701 standard must be the evidence probative, order be probative; knowledge of the personal rationally premised based Rule 5-402.32 See Md. the witness. 5-702. Maryland Rule testimony governed
Expert admitted, testimony “may be expert that provides Rule 5-702 otherwise, if the court determines or opinion of an in the form fact to understand assist the trier of testimony will added). (italics fact in issue.” or to determine the evidence note, however, production the sum- We would Rule 5-1006. prerequisite opposing party is a mary documents to and voluminous State, testimony. v. 198 summary See Davies introduction of to the Bakker, (2011); 400, 412, United States Md.App. 17 A.3d (4th Cir.1991) Evidence (examining Federal Rule of F.2d 5-1006). Maryland analogous rule to Rule federal provides: Maryland Rule 5-701 testifying as lay witness is not testimony by witness. If the Opinion opinions or infer- testimony in the form of expert, an the witness's (1) opinions are rational- or inferences which limited to those ences is *16 (2) helpful to a clear the witness and ly perception of based on the of a testimony the determination understanding or of the witness’s fact in issue. will, wаy we we do question certiorari the responding 31. In qualified an have been as Edwards could whether Detective not address expert. provides: Maryland 5-402 Rule admissible; inadmis- evidence generally irrelevant evidence Relevant statutes, constitutions, by or provided Except otherwise sible. as rules, rules, all with these law not inconsistent or decisional these relevant is not Evidence that is not is admissible. relevant evidence admissible. useful, Testimony expert elicited from an provides relevant information when the trier of fact would not otherwise be able conclusion; to reach a rational such information “is likely not part to be of the background knowledge judge jurors of the or Bernstien, Kaye, themselves.” David H. David E. & Jennifer Mnookin, (2d § L. The Wigmore: Expert New Evidence 1.1 2010). thus, ed. The judge, trial determines whether to admit expert testimony dependent upon whether the witness could provide assistance to the finder of subject fact on the matter juror, field, where a lacking knowledge in a particular would resort to mere speculation conjecture. See Rule 5-702. State, 706,
In
Ragland
(2005),
385 Md.
We State v. 408 Md. (2009), 971 A.2d in order to limit the State from offering “an expert lay witness clothing.” witness In Blackwell, explored we whether an officer’s testimony regard- ing (HGN) the result of a gaze horizontal nystagmus test he performed had during Blackwell a traffic stop allegedly reflecting Blackwell’s inebriation expert constituted testimo- *17 testimony that the officer’s was had asserted
ny.33 The State
not ex
5-702,
the officer “did
to Rule
because
subject
not
of intoxi
as to Blackwell’s state
opinion
an
pressly provide
(internal
693,
marks
quotation
A.2d at 305
cation.” Id. at
omitted).
observed, however,
differs
that the HGN test
We
“rely
person
which a
could
sobriety
field
tests with
from other
“testimony
because
personal experience”,
his or her
upon
average juror
to the
without
significance
has no
[about HGN]
correlation between
of the scientific
explanation
an additional
at
971 A.2d at
nystagmus”.
and
Id.
consumption
alcohol
encompasses
that Rule 5-702
doing,
opined
In so
we
304.
”
at
just
than
Id.
‘opinions.’
“more
testimony regarding
In the
case because
present
from the
distinguishable
Blackwell are
to the location
opinion
not render an
as
Detective Edwards did
read
merely
and that he
phones
and Bond’s cell
Payne’s
directions
records and follоwed its
Nextel’s business
Sprint
Detective Edwards en-
disagree.
the data. We
interpreting
Payne’s
to derive his conclusion
process
gaged
Park and
through the Menlo
phones
Bond’s cell
communicated
the ken of an
beyond
towers that was
Balmoral Towers cell
communication
regarding
his conclusions
the
person;
average
an
witness.
qualified
expert
that he be
as
required
also
path
the same
“layperson
that a
with
urges
the State
Although
the
could have determined
records and instructions
(even
fact that the
from the
of the cell sites”
aside
location
“step-by-
full records and that
never received the
jury
source), addi-
from another
developed
instructions were
step”
required
parlay
were
training
experience
tional
magnifies
phenomenon
alcohol
on the
wherein
33. The HGN test relies
involuntary
nystagmus,
“rapid
oscillation
which is
the effect
(internal
Blackwell,
at 301
eyeballs”.
A
Detail Record contains a
Call
“personal experi-
based on
decipherable
and is not
layperson
Blackwell,
692,
at
Once Detective Edwards
to
knowledge
experience
relied on his
understand
ID”
ID”
they
of a “LAC
and “Cell
and how
significance
tower
a cellular
identifying particular
amongst
related
cell
that
testimony
records. Detective Edwards’s
was
provider’s
of an
because Call Detail Record entries are not
expert,
juror
typical
“rely
entries
of a cell
bill where
could
personal experience”
his or her
to understand their
upon
Blackwell,
A.2d at
meaning.
Detective Edwards needed to be
as an
opine regarding
order to also
the Menlo Drive and Balmoral
Using
Towers cell towers.
the data he derived from his
expertise,
urged
Detective Edwards
that he
experience
through
had determined the location of the cell towers
which
cell
on the
of the
Payne’s
night
and Bond’s
connected
scene,
their location
to the crime
which
murder and
relative
Evans,
(N.D.Ill.2012)
F.Supp.2d
States v.
892
949
In United
denied,
State,
(Fla.Dist.Ct.App.),
We draw sustenance for our of expert testimo Ganier, instant ny case from United States v. 468 F.3d (6th Cir.2006), in which the United States Court of Appeals explored whether a witness who regarding testified the results by “running commereially-available obtained soft ware” to examine files on a was computer required be qualified as an under Federal expert Rule Evidence 702. The Government had urged testimony the witness’s was “scientific, technical, not specialized based on or other knowl edge”, merely reading provided by because he was the results software, running the and the testimony types was of the same *19 of facts “that could by any person reasonably be observed proficient commonly the use of used software”. computer rejected Id. at 925-26. The Sixth Circuit the Government’s argument and held that reading produced by the results running program required the that a expertise, explaining “layperson today to may interpret outputs be able the of software but popular programs”, “reports generated by the the forensic software a display heading, string of words and time, symbols, date and and a of list words” which would have been unfamiliar to a lay specialized knowledge witness without and Id. at experience.
As a result of our that determination Detective Edwards obligated qualified was to have been as an expert, a retrial will required, Special be as the Court of Appeals concluded as well. pursue Should the State choose to the case against Payne and Bond’s, trial judge Payne’s the does not sever case from the may again regarding issue arise of six wire- admissibility tapped telephone captured conversations on the Baltimore County police in which wiretap, Payne was not recorded as a participant. Payne has of admissibility raised issue asks, the calls in his in which cross-petition he “Did the Court err in Special Appeals ruling wiretap statements made not by respondent respondent Payne Bond but were neverthe- by party- statements Payne as against less admissible opponent?” were that statements wiretapped pertinent
The facts confront individually Keller were Brittany McCant Tyrice murder Glen Stewart’s months after two by police ed told both respectively; November early October night with Keller and others were Payne, Bond police trouble, thereby provid with car assisting her the incident trial, both women At with an alibi. Payne and Bond ing that she discussed also testified their stories. Keller recanted in December with Bond the false alibi to maintain the need conversation, version of which taped one cell Payne against into evidence trial and admitted at played was also testified about Keller co-conspirator. of a as a statement 2007; in her in December Payne with meeting a face-to-face concerned, I Joey spoke far as was said: “As testimony, she Jason, I but didn’t know was said him about what with con police far as the were to do as going what he wаs cerned.” Jones, pled who had co-conspirator an indicted Desmond trial, trial, during which five also testified guilty prior jury for the played and Jones were calls between Bond of co- Payne as statements against admitted into evidence also telephone to the six recorded respect conspirators. With brief, conversations, State, in its identified them as occur- 12, 2007, on December three hours of one another ring within *20 night regarding had Bond questioned after detectives crime, follows: and described the calls as In the first are between Bond and Jones. The five calls call, they so go private Bond Jones to somewhere first tells call, that the “suits” In Bond relates can talk. the second wiretapped telephone conversation introduced 35. There was a seventh concerning was recorded on December into evidence that meeting Payne and on the arrangement between Keller of a face-to-face us, we shall not day. call is not in issue before same The seventh address it. just left and he warns to “look Jones out for them.” Bond adds: know, already yo
You that niggars just are & smoking drinkin, yo, know, all you really left to niggars get some time, that, gas one but other than all you really know. call, In the third says Jones “the Jay” Feds are on us because the “Armed Feds” had been there. In the fourth call, Jones tells Bond that said “they” they “just had enough (Jones) time to catch up” with him they asked to “catch up with another says [him] Jones that he time[.]” asked for a number to call. says: Bond “For real for real if you don’t say remember what to then nobody yet” don’t call explains that he told the detectives the samе thing “Woody [Tyrise and Brittany [Brittany McCant] told them. Keller]” call, In the fifth Bond if asks Jones has Brittany’s number or anyone else’s number. says Jones he has Brittany’s number. call, Keller,
In the sixth Bond calls says who she’s on her way to Payne’s house. The transcript the conversation is as follows: Alright that’s whats up, alright
[BOND]: [inaudible] D’s[36] when, ah, when, you want to talk cause the came to talk to me today. they So caught my job, you me see what I’m saying, so. Alright.
[KELLER]: you them, So when went to talk you [BOND]: told them, the, told you them that we to help you right? came Yeah. [KELLER]: Alright you you said ran out gas, right?
[BOND]: Yeah. [KELLER]: Alrigh[t], that’s what I
[BOND]: was won ... I want real, make sure the shit was cool. For for real. Yeah.
[KELLER]:
36. Keller testified that “the D's” referred to the detectives. *21 ain’t, ain’t you You
[BOND]: (Inaudible)
[KELLER]: that, there, none of stay up ain’t Alright you [BOND]: right? ... uh. Uh
[KELLER]: told you that’s what Naa, talking I’m about [BOND]: them, right? Oh, yeah.
[KELLER]: I want up, alright. that’s whats Alright [BOND]: its, I ... its cause ain’t straight I have this shit make sure awhile, saying? I’m you see what been Right [KELLER]: mean, know what I but good you shit Alright,
[BOND]: I’m to call me see what Joey there tell you get when ... they, they, they cause saying, cause Okay [KELLER]: basically asked me the basically, they They
[BOND]: shit, I’m what ya’ll you asked see thing they same shit, mean, they I asked saying, ya’ll doing what was I like I don’t know no and shit. was me some times can, I’m times, you see what you ‘em the best yo, you give saying? Right.
[KELLER]: ahead, I off I went hit ‘em [BOND]: that’s what’s up, alright yeah, That’s what’s [KELLER]: I yeah, that’s what said. up, Yeah, may help you out.
[BOND]: Ok, I’m ... I should at his house right, be [KELLER]: him happened. minutes and I’ll tell what probably like 15 What, somebody? you what be around [BOND]: Uh, uh, no, be, sayin know just you I don’t [KELLER]: nothing over the it, I can I can it. dig dig
[BOND]: *22 (Extract omitted). transcript and references trial,
At the State in argued support of the introduction of the six telephone against Payne calls and Bond that the conversations were statements of co-conspirators under Rule 5-803(a)(5).37 The Stаte asserted that conspiracy the forming the foundation the introduction of these statements was a Stewart, to conspiracy conceal the murder of to which Keller and Bond had an provided alibi. The argued State to the trial court that Keller’s face-to-face conversation Payne with on 12, 2007, proved Payne’s December participation the con to spiracy trial, conceal. Months to prior the State had proffered Reports DNR reflecting number of telephone McCant, Keller, calls Payne, Bond, between Johnson and Jones also linked the individuals together a conspiracy to conceal.
Payne argued before the trial court that he was not a part conceal, of any conspiracy to that he was not a participant any of the six calls and that the during statements made the calls were hearsay. inadmissible According Payne, just State did not prove part any he was a of conspiracy. Before the call between Bond and Keller was played trial, the trial judge specifically questioned it how was against Payne admissible ultimately decided that “all the players knew that” a false alibi had been offered to police, which was genesis “the In conspiracy.” so ruling, judge testimony referred Keller’s regarding her face-to-face meet- ing Payne with as sufficient to provide the foundation for a conspiracy to allow the six statements to come in as to Payne: 5-803(a)(5) Maryland Rule states: rule, following hearsay The are not excluded though even declarant is available as a witness: (a) by pаrty-opponent. against Statement A statement that is offered * * * party and is: (5) by coconspirator A party during statement of the the course and conspiracy.
in furtherance of the * * * all the evidence to me on Seems THE COURT: story, that that was all knew players me that the before them talked to She conspiracy. genesis that is the other one; person to that she talked with directly by phone to allow sufficient foundation I that is think face-to-face. in. to come the statements indicated, based judge the trial testimony, Jones’s
During the Bond and admissibility of to the ruling as prior her upon foundation adequate was an call, thought there that she Keller against Payne Bond and Jones the five calls between to admit Bond. relied again Appeals, State Special Before the Court meeting with her face-to-face testimony about Keller’s *23 conceal; the State to conspiracy of proof as sufficient Payne was body” the victim’s to burn that “efforts argued also to conceal. proof conspiracy of a additional the trial court disagreed with Appeals of Special The Court against Payne of the statements admissibility and denied the under Rule 5- of co-conspirators statements Bond as or to conspiracy of a 803(a)(5), no evidence there was because conceal: express there was an in this case that is no evidence
There outset, in engage to at the parties, between the agreement committing kidnap- the after acts of concealment concerted objective appellants chief of and murder. The ping mur- kidnapping of the offenses committing substantive against victim] retaliate [the to punish der was and/or of reporting robbery him of they suspected because into recordings admitted Because the police. [another] agreement of an hearsay statements were neither evidence criminal event outset the substantive into at the entered to conceal in agreement express nor an furtherance of victim], i.e., [the to silence attaining objective, the chief an express to establish are inadmissible hearsay statements of concealment. conspiracy 171-72. The Bond, 65 A.3d at Md.App.
Payne &
however,
stated,
that the
seemingly
Special Appeals
Court
telephone calls were admissible as statements of party oppo
5-803(a)(l)38
nents under Rule
as to Payne, although the State
before us questioned that
paragraph
Court
held;
Special Appeals opinion so
the paragraph stated:
Here,
difficulty
we have no
concluding that Bond’s state-
ments in the wiretaps were
against
admissible
him as
by party
statements
If
opponent.
there is any problemat-
issue,
ic
that concerns whether those statements were also
against Payne.
admissible
only
The
recording involving
Payne is the last one between him and Keller.
In that
recording, Keller
Payne
just
informs
that “Jason
called me
they
him
came to see
so umm I
you
don’t know if
...
...
you
inaudible
me to tell
when I get there or what’s up,”
Payne replied,
just
which
“okay,
tell me
you get
when
that,
here.” Keller testified at trial
following this phone
conversation, she
Payne
went and saw
directly. At that
time,
Payne
she told
about her сonversation
day
earlier that
Bond,
with
inferentially referring to the conversation about
maintaining the false alibi in the face of
police
further
investigation.
persuaded
We are
the statements were ad-
that,
missible as to each party. We also note
during jury
instructions, the trial court instructed
jury
that it was to
“consider the evidence as it
to each defendant
relate[s]
separately
you
must
separately
consider
each offense
charged against each defendant.”
Bond,
Payne
&
tive Id. 253-54, at trial.” by parties than the argued different at 173. 65 A.3d that, Court State, nevertheless, “[t]he before us urges
The statements were not hold that Bond’s Appeals did Special of Bond’s statements were it held that against Payne; admissible party-opponent.” of a him as statements against admissible States, Bruton v. United U.S. also that argues The State (1968) not violated L.Ed.2d 476 88 S.Ct. “Payne not implicate conversations did telephone the because murder of Stewart”. kidnapping the acсomplice an record- introduction of the that the Finally, argues the State was harmless against Payne calls telephone the six ings of ” of other evidence.... error, plethora “there was a because us, party opponent Payne disputes Before of 5—803(a)(1), permits the admission rule, applies Rule party oppo not his Bond was telephone six calls because foundation nent; evidentiary questions unequivocally he in the at all. The error recordings of the six for the admission states, harmless, he because is not recordings admission conspiracy part any that he was a is no evidence there conceal. that, 5-803(a)(l), “A rule, provides Rule party opponent
The is ... against party [t]he is offered statement statement, representa- in either an individual or own party’s have by hearsay rule”. We capacity” tive is “not excluded party Maryland interpreting who authority dearth is, for assis- counterparts to our federal so we turn opponent tance. 801(d)(2)(A),39 all fours adopted in is on
Federal Rule 5-803(a)(l). party In is a interpreting who with our Rule there are of a criminal case which in the context opponent 801(d)(2)(A) Rule states: 39. Federal Hearsay. A that meets the (d) statement Statements That Are Not hearsay:
following . .. conditions is not against The is offered (2) statement Opposing Party’s An Statement. (A) party or opposing party was made in an individual an and: representative capacity *25 710 defendants,
multiple the Second and Eleventh Circuit Courts Appeals have decried that a party co-defendant cannot be a opponent; In only the Government is. United Stаtes (2d Harwood, 91, Cir.1993), 998 F.2d 94 Harwood and McKee were jointly journal tried. McKee had made statements to a involvement, ist about Harwood’s which Harwood tried to introduce at trial as exculpatory, appeal, and on argued by party statements were admissions opponent under 801(d)(2)(A). Federal Rule of Evidence reject The trial court evidence, affirmed, ed the and the Second Circuit “because the sought admission to be introduced was aby made co-defen dant who is not a party opponent. The Government is the party opponent 97-98, of both defendants.” Id. at quoting (11th Gossett, Cir.1989) United States v. 877 F.2d 906 (per curiam), denied, cert. 493 U.S. 110 S.Ct. (1990). case,
L.Ed.2d 1045 In the instant Payne and Bond were together, both; tried and the State is opponent neither of them was the party-opponent of the other.
Whether the telephone six calls can properly be admit against ted Payne as statements of a co-conspirator under 5-803(a)(5) Rule regard with to a conspiracy to conceal de pends upon the having prima State advanced facie case and, a conspiracy to conceal secondly, Payne’s existed agree 5-803(a)(5) ment to the conspiracy. Rule states that “a state by ment ... coconspirator during the course and further ance of conspiracy ...” is “not excluded the hearsay rule”. Special The Court of Appeals determined that no existed, 5-803(a)(5) conspiracy to conceal so that Rule was not Bond, implicated Payne as to opining that there was an proof absence of of “an express agreement betwеen the par ties, outset, at the engage concerted acts of concealment murder”, after committing kidnapping and (Payne & Bond, 211 Md.App. 171), at A.3d and further stated:
Because the recordings admitted into evidence were neither
hearsay
of an agreement
statements
entered into at the
outset of the substantive criminal
express
event nor an
agreement
conceal
furtherance of attaining the chief
objective, i.e.,
Stewart,
to silence
hearsay
statements are
*26
conceal-
express conspiracy
to
an
inadmissible
establish
ment.
250,
doing,
In
our intermediate
Id. at Rivenbark, of State v. court relied on the strictures appellate 158, 271, (1987), that the 147, 276 which held 311 533 A.2d Md. acts of concealment made in connection with “statements all have realized bene- long conspirators after the performed to commit” are they agreed from offense which had fits inadmissible. court appellate our intermediate
Although
agree
we
with
to
regarding
conspiracy
controlling
that Rivenbark
conceal,
prima
showing
not a
facie
disagree
we
that there was
jury,40
to the
gone
of a
to conceal that could have
conspiracy
(see
State,
458,
(1963)), though
231 Md.
Agreement conspiracy, opined is the essence of as we Johnson, 418, 424, (2002), State 367 Md. 788 A.2d 632 that, in which further consistently we stated “This Court has conspiracy agreement defined as between two or more to unlawful people purpose employ achieve some or to unlaw achieving purpose.” ful means in a lawful have summa We conspiracy rized the elements of a criminal to be:
713 The essence of a criminal is an conspiracy agree- unlawful agreement ment. The not formal or spoken, pro- need be there is a meeting reflecting unity vided of the minds In purpose design. Maryland, complete the crime is reached, agreement when the unlawful is and no overt act in agreement furtherance need be shown. State, 71, 75, (1988).
Townes v. 314 Md. 548 A.2d See State, (1985) 434, 444, Mason v. 302 Md. 488 A.2d crime, that the (stating “agreement is the аnd the crime is act”); complete any State, without overt Monoker v. 321 Md. 214, 221, (1990) (“The 582 A.2d gist conspiracy is agreement.... the unlawful complete The crime is when the made”). agreement unlawful
As to Payne, prove the State did not agreed he to conceal, participate to conspiracy either from the begin- ning or subsequent to the murder. Although the trial court exclusively relied testimony Keller’s about her face-to-face meeting with Payne to establish that he agreed with the conspiracy conceal, said, in which she far Joey “As as was concerned, I spoke Jason, with him about what was said but I didn’t know what going he was to do as far police concerned”, were Keller related no response Payne from reflecting that he had agreed to participate agreement an conceal.
In an attempt augment to what the trial court upon relied to that Payne conceal, determine was part conspiracy of to State before us refers to the DNR reports showing telephone calls, content, without corresponding that occurred between Keller, McCant, Payne, Bond, Jones and during Johnson time that McCant and Keller were interrogated by police. In addition to the fact that the trial court rely did not these calls, admit the the DNRs do not provide additional that proof Payne expressly agreed conspiracy to a to conceal. The only DNRs provide a list of phone numbers dialed from specific phones, any proof numbers, without of who dialed the any let alone content from the calls.
714 testimony about is that Jones’s allegation final
The State’s Payne conspired that body the victim’s shows burning of the trial upon by not relied conceal, this also was although testimony, of the statements. Jones’s in the admission court in a conspir was a however, Payne party does not reflect acy to conceal.41 Bond and Payne trial of joint pursue the State
Should recordings wiretapped evidence the six to introduce as wish the Circuit Bond, inquiries are further there against make. Court must were non- recordings that the six asserts
The State trial therefore, during joint and, played could be testimonial only against into introduced evidence Payne and Bond and States, Bond, of Bruton v. United violating the tenets without (1968). Payne 20 L.Ed.2d 88 S.Ct. 391 U.S. Bruton, be that, his trial should under disagrees, asserting Bond, defend adequately he cannot from because severed recordings should the Clause himself under Confrontation however, to the the State as with agree, be We played. are conversations issue, wiretapped the six because Bruton Washington, under in character non-testimonial Crawford (2004), and so do 158 L.Ed.2d 124 S.Ct. 541 U.S. rights. Confrontation Clause implicate Payne’s not determining whether analysis defines Crawford right an accused’s violates hearsay of a statement admission Crawford, the Sixth Amendment.42 confrontation under trial, At Jones testified: you got loca- happened when to the What ATTORNEY]: [STATE’S tion? out, got Payne Chris stayed the car. Me and Bond [JONES]: went back to the victim. watching they did? you what Were [STATE’SATTORNEY]: happened. it Really say I the fire when couldn’t but seen [JONES]: happened fire? What after the ATTORNEY]: [STATE'S got They car and in. ran back to the [JONES]: Payne? Johnson and ATTORNEY]: [STATE’S Yes. [JONES]: Constitution, incorporat- States Amendment of the United 42. The Sixth Amendment, (Pointer v. State through the Fоurteenth ed to the States
715
68,
1374,
U.S. at
While the
Court
provide
did not
a comprehensive
Crawford
“testimonial”,
definition of the word
it did provide several
specific examples of such evidence. Crawford,
68,
541
at
U.S.
1374,
In we considered whether Cox, statements implicating by made a coconspirator jailhouse to a acquaintance cooperat- ing authorities, with the were testimonial and could be intro-
Texas, 400, 403, 1065, 1066, 380 U.S. 85 S.Ct. 13 L.Ed.2d (1965)), provides: prosecutions, In all criminal enjoy right the accused shall to a trial, speedy public by impartial jury an of the state and district committed, wherein the crime shall have been which district shall law, previously have been ascertained and to be informed of the accusation; nature and cause of the to be confronted with the him; against witnesses compulsory process have obtaining favor,
witnesses in his and to have the assistance of counsel for his defense. *30 through testimony jailhouse the of the against duced Cox we whether the inmate’s testi- cooperator. When considered rights, that mony violated Confrontation Clause we held Cox’s by Cox the “spontaneous” implicating the statements made jailhouse the discussion non-testi- coconspirator during were monial, casual conversation be- because “the interaction was the “were not private acquaintances” tween statements a for trial purpose creating made for of substitute primary the 650-51, result, 699. we testimony.” Id. at A.3d at As a 28 affirmed conviction. Cox’s Cox, recordings
As in
case
wiretapped
present
the six
the
to an
than
acquaintance
were “more akin to casual remarks
650,
699,
official”,
formal
to an
id. at
28 A.3d at
declarations
and, thus,
were non-testimonial under
Various
Crawford.
wiretap
our
in the federal
when faced with
system,
brethren
evidence,
recognized that the
are not
have also
conversations
Ramirez,
v.
479
1249
testimonial. United States
F.3d
(10th Cir.2007) (holding
pro
of co-conspirators
statements
non-testimonial);
cured
are
through wiretap
a
United States
Cir.2005)
(3d
Hendricks,
that
(holding
395 F.3d
181
surreptitiously
private
monitored
conversations and state
ments
are not
for
wiretap recordings
contained
testimonial
alia,
because, inter
cer
purposes
Crawford,
speakers
“the
tainly
thinking
they
did
‘would
not make
statеments
”,
at a
trial’
541
quoting Crawford,
be available for use
later
193).
1364, 158
52, 124
at
at
at
U.S.
S.Ct.
L.Ed.2d
recordings,
is not
implicated
Because
six
Crawford
are
are
Payne’s
rights
triggered.
rights
Bruton
not
Bruton
evi-
triggered
hearsay
when testimonial
introduced into
Bruton,
Supreme
“whether
dence.
In
Court addressed
trial
aside
joint
the conviction of a defendant at a
should be set
although
was instructed that
codefendant’s confes-
jury
disregarded
the defendant had to be
in deter-
inculpating
sion
Bruton,
124-25,
mining
guilt
his
or innocence.”
U.S. at
at
trial
During
joint
S.Ct.
20 L.Ed.2d
Bruton’s
Evans,
inculpating
with
Evans’s out
court confession
both
judge
had
into evidence. The trial
defendants
been admitted
given
jury
had
to the
to consider the
limiting
instruction
only
Evans,
confession
against
against
but not
Bruton. The
United States
of Appeals
Court
Eighth
Circuit af-
States,
firmed. Bruton v. United
(8th Cir.1967).
As a because six wiretapped recordings in this non-testimonial, case are their joint admission in a trial does 718 under implicate Payne’s rights
not Confrontation Clause Bruton. Crawford court, nevertheless, joinder consider
The trial must whether sufficiently prejudice or a instruction will avoid cautionary 4-253(e): Rule Payne Maryland under the tenets If it that will be appears any party Prejudicial joinder. counts, joinder charging trial of prejudiced by the documents, defendants, initia- may, or the court on its own order trials of any party, separate tive or on motion of counts, documents, defendants, any charging grant or or justice requires. other relief as to a Payne party Because stated that was not a we have Bond, conspiracy party-opponent to conceal not a recordings Payne not telephone against six are admissible v. exception. acknowledged Galloway under a hearsay We is a meaning State that within thе Rule 4-253 “[prejudice to the only prejudice resulting ‘term of art’ and refers reception defendant from the of evidence would have been join- had no against inadmissible defendant there been (2002), 394 n. A.2d n. 11 der.” 371 Md. 663 State, 173, 186-87, 589 A.2d quoting Ogonowski Md.App. 4-253(c) (1991). Therefore, of Rule implication case, also must considered on in this insofar as be remand Payne concerned. *32 conclusion,
In on of the of “cell based our review intricacies the training, experience expertise records” and and to determine cell required by alleged Detective Edwards the phones cell communi- Payne’s towers with which and Bond’s cated, we have conclude Detective Edwards should been 5-702, Maryland an under Rule qualified expert as witness As in new guidance and remand the cases for new trial. the trial, in the six we also conclude that Bond’s statements off of could admitted recordings wiretaps obtained not be that, of a against Payne party opponent statement may while have been sufficient evidence to establish there conceal, a the evidence prima showing conspiracy facie Payne was a support part did not the determination that conspiracy. THE APPEALS
JUDGMENT OF COURT OF SPECIAL THE CASE REMANDED TO COURT OF VACATED. SPECIAL APPEALS INSTRUCTIONS TO VA- WITH THE THE CATE JUDGMENT OF CIRCUIT COURT FOR AND REMAND THE CASE TO BALTIMORE COUNTY TRIAL THE CIRCUIT COURT FOR A NEW CONSIS- TENT IN WITH THIS OPINION. COSTS THIS COURT AND THE BE COURT OF SPECIAL APPEALS TO PAID BY THE PETITIONER.
BARBERA, C.J., McDONALD, JJ., HARRELL and concur.
McDONALD, J., BARBERA, C.J., concurring, which HARRELL, J., join.
I concur the Court’s not in judgment, opinion. but its When a on this judge judgment only, Court concurs it is helpful explain why. Then the reader knows whether there is a substantive reason for that judge’s reticence and can assess whether that reason any goes. has merit. So—here Majority
The
holds that Detective Brian Edwards should
have been qualified by the trial court
expert
as an
under-
Maryland Rule
testify
5-702 to
as to the process for determin-
ing the communication path of the
phones
defendants’ cell
as to the importance of two particular
Majority
cell towers.
684-85,
op.
At essentially Detective Edwards applied the telephone company’s key to the cell phone records of the defendants and phones determined that their cell regis- had tered off certain cell vicinity towers of the crime during stated, its commission and cover-up. judge As the trial process that Detective Edwards used to locate the cell particular towers associated with telephone calls com- pany records “isn’t rocket An analogy science.” closer to *33 A court denom- particular may illustrate the may point.
home a like “Civ. No. S-14-0026.” designation inate a case with that means that the key particu- who has the knows this One (“Civ.No.”) assigned Judge is a civil case to Smith lar action (“0026”) (“S”) in in case filed the court and was the 26th such (“14”). (¿a, lawyer) a to legal expert One need not be a lawyer a although perhaps decipher designation, the case accurately to the claims and necessary explain would be in the action. defenses
Thus, view, not provide expert Detective Edwards did my as an testimony qualified expert and need not have been testimony. that provide then, view, my I in the In there
Why, judgment? do concur prosecution’s proof in the undermined gap was Edwards’ Informa- testimony. value of Detective probative phone the location оf the cell towers associated concerning tion if it was evidence of only probative with calls was particular located phones—were the defendants—or at least their where calls. At the end of the trial the time those that the fact that calls on defendants’ prosecutor argued proximity towers in close registered cell off cell phones testimony for the to the crime scenes was corroboration in those present participated had been the defendants crimes. significance no at trial as to the testimony
But there was to the location of the location of a cell tower relation technologies, In some communication phone. the user of the infra over the communications path by message taken route reveal vary may and the intermediate may structure of the sender or receiver. For exam little about the location opinion of this over ple, copy each time one obtains Internet, very take a different route may the transmission the same destination.1 ed.2014) (10th Computer Stallings, Data and Communications
1. See W. Networks”) 19.1—"Routing Packet-Switching at 591-601. (Chapter *34 Majority opinion discussion in the Based on the technical technical technology2 readily cell and some available sources,3 urged by prosecutor that the inference appears it jurors But likely checking was correct. we do not want judicial technical readily opin available resources—or even concerning signifi technical information ions—to obtain A properly qualified cance of the evidеnce before them. engineer an electrical or a communications expert—perhaps It not have been the engineer—was likely needed. would wireless communica sophisticated testimony concerning most tions, not can said to be within the something but it is be juror. testimony, of a such knowledge lay common Without a correct jury speculate—perhaps reaching was left to conclusion, speculating—as significance but still to the of the cell towers’ location.
In
expert testimony
jury
the absence of
that would allow the
location,
significance
to understand the
of the towers’
testimony
the location
concerning
of the cell towers was not
under Maryland
(only
admissible
Rules 5^02
relevant evi-
admissible)
(even
dence
may
5-403
relevant evidence
be
confusion).
if
outweighed
excluded relevance is
Judge
Chief
BARBERA and
HARRELL
Judge
have
join
that they
opinion.
advised
this
692-94,
Majority op.
at
2. See, (10th e.g., Stallings, Computer W. Data and Communications ed. 2014) Networks”) (Chapter 10.1-‘'Principles of Cellular 303-16. *35 B
APPENDIX *36 APPENDIX C APPENDIX C—Continued people Most see the cell as the hexagon, being [solid-lined] by center, defined tower with the antennae pointing the directions indicated In arrows. reality, cell is the hexagon, [dotted-lined] with the towers at the corners.... The confusion comes from not realizing that a area, cell is geographic not a point. We (the area) (the use the terms ‘cell’ coverage and ‘cell site’ location) base station interchangeably, they but are not the thing. same Hoek,
Tom Farley & Mark van der Basics, Cellular Telephone (Jan. 1, 2006, Private PM), Line 8:55 http://www.privateline. com/mt_cellbasics/.