Boston v. State

235 Md.App. 134

175 A.3d 836

Jatwan Derrick BOSTON

v.STATE of Maryland

No. 871, Sept. Term, 2016

Court of Special Appeals of Maryland.

December 20, 2017

Submitted by Rachel Simmonsen (Paul B. DeWolfe, Public Defender on the brief), Baltimore, MD, for Appellant.

Submitted by Michelle M. Martin (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee.

Panel: Eyler, Deborah S., Graeff, Paul E. Alpert (Senior Judge, Specially Assigned), JJ.

Eyler, Deborah S., J.

A jury in the Circuit Court for Baltimore County convicted Jatwan Derrick Boston of attempted first degree murder, armed robbery, first degree burglary, use of a firearm in a crime of violence, and illegal possession of a regulated firearm. The court imposed concurrent sentences of life in prison for attempted murder, five years for illegal possession of a firearm, and twenty years for the remaining crimes.

On appeal, Boston presents three questions, which we have reordered and slightly rephrased:

I. Did the trial court err by admitting into evidence a recording of a telephone conversation between Boston and his brother?

II. Did the trial court err by admitting into evidence a gun seized during Boston's arrest?

III. Did the trial court err by admitting into evidence a jacket that police saw at the crime scene but did not take into custody until days later?

We answer all three questions in the negative and shall affirm the judgments.

FACTS AND PROCEEDINGS

At trial, the following facts were adduced.¹

At around 10:00 p.m. on November 29, 2014, three masked men burst into Steven Matthews's house in Catonsville and attacked him. The assailants kicked in Matthews's front door, pointed guns at him, and tied him up with an exercise band. They hit him with nearby objects and ransacked his house.

Five minutes after the three assailants entered, Boston entered the house as well. He was not wearing a mask, and Matthews recognized him from the neighborhood. Boston took some "petty stuff," like video game consoles, and then approached Matthews, put a gun "five inches" from his head, and pulled the trigger. The gun did not fire. Boston turned to one of the other men, later identified as David Grant, and said: "We got to kill [Matthews] because he seen my face." Grant, who was standing about six feet away from Matthews, fired his gun at Matthews. Although the bullet struck Matthews in the back of his head, Matthews managed to break free from the exercise band, get up, and go after Grant. As the two were "tussling ... on the ground," Grant fired two more shots at Matthews's head. Matthews tried to protect his head with his hands, to no avail.

Grant got up from the ground, and the four men left with two televisions and the keys to Matthews's BMW X6. Still functional despite the attack, Matthews stayed on the floor, waiting for the assailants to leave. After "a couple of minutes," he walked outside to get help from a neighbor. He saw Boston, Grant, and a third assailant inside his BMW, seemingly about to drive off. The fourth assailant left in the car the assailants originally arrived in. When Boston saw Matthews, he and the third assailant jumped out of the car and attacked him. The three ended up on the ground, fighting. Boston called for Grant, who got out of the car with a gun, got close to the fighting men, and shot Matthews in the back of his arm. Matthews kicked the gun out of Grant's hand, but it discharged and the bullet struck the back of Matthews's leg. When Matthews attempted to get up to run away, Grant shot him in the back of the head. Boston, Grant, and the third assailant got back in Matthews's BMW and drove away.

Somehow, Matthews got himself to his next door neighbor's house, and the neighbor called 911. On the 911 tape, Matthews can be heard in the background telling his neighbor that Boston had attacked him. Matthews was taken to a hospital, where he underwent surgery. Following the surgery, Matthews spoke with investigating officers and told them that Boston, along with three other men, had attacked him and burglarized his house. The officers showed Matthews a photograph of Boston and he confirmed that Boston was one of the attackers.

On December 1, 2014, police located Boston in Baltimore City. They surveilled him as he and Grant and an unidentified woman entered a vehicle near the 3400 block of Round Road. The police followed the vehicle and eventually made a traffic stop during which Boston and Grant were arrested. The police recovered a "Colt .45 caliber handgun" from "the front waistband of ... Boston's sweatpants." They also recovered a ".32 semi-automatic handgun" from where Grant had been sitting in the vehicle immediately before being arrested.

We shall include additional facts in our discussion of the issues.

DISCUSSION

I.The Recorded Telephone Conversation

At the times relevant to this case, Jonte Lee, Boston's older brother, was incarcerated at the Baltimore County Detention Center ("Detention Center"). On November 30, 2014, the day after Matthews was attacked, Lee placed a telephone call from the Detention Center to his girlfriend. Before Lee started to speak, an automated recording announced: "This call will be recorded and subject to monitoring at any time."

Near the beginning of the conversation, Lee asked his girlfriend to call Boston toward the end of the call. After Lee and his girlfriend had talked for a while, Lee told her to try to call Boston. She then dialed Boston into the call. The pertinent portions of the recorded call with Boston on the line are as follows:

MR. LEE: What's up, dumb ass?

[BOSTON]: What's up, dumb ass?

MR. LEE: What are you—what you—are you good?

[BOSTON]: Yeah, man. I'm all right.

MR. LEE: You sure? I know it ain't nothing you can talk to me about but—you feeling me?

[BOSTON]: Yeah. Everything's (indiscernible) I ain't said nothing (indiscernible).

MR. LEE: I'm putting you in my prayers; you heard me?

[BOSTON]: Yeah, bro.

MR. LEE: I just wanted to tell you I love you, before—before—before me anything.

[BOSTON]: I love you, too, man.

MR. LEE: Just in case the n***** don't get back in contact; you feeling me? But I hope you stay (indiscernible); you hear me?

[BOSTON]: Yeah.

* * *

[BOSTON]: Yeah. I'm going around (indiscernible) tomorrow, for real.

MR. LEE: Oh, why, oh, why, oh, why, oh why? Damn, yo.

[BOSTON]: I know you heard though.

MR. LEE: Yeah. Mother f—ker^[2] Kim called Keonia (phonetic) and shit.

[BOSTON]: Huh?

MR. LEE: Kim called Keonia.

[BOSTON]: What about?

MR. LEE: This n*****, yo; on, my God, yo. Hello?

[BOSTON]: (Indiscernible) lit them.

MR. LEE: Huh?

[BOSTON]: He lit.

MR. LEE: Huh?

[BOSTON]: He lit like wheezing.

MR. LEE: He live?

[BOSTON]: He lit.

MR. LEE: Lit?

[BOSTON]: He light up (indiscernible) he got a light on him.

MR. LEE: Oh.

(Pause.)

MR. LEE: Damn, yo.

[BOSTON]: (Indiscernible).

MR. LEE: (Indiscernible) was it—was it—was it—you feeling me? Does it come out?

[BOSTON]: No.

MR. LEE: It ain't coming how you want it to?

[BOSTON]: No.

MR. LEE: I hope you all right, my n*****.

[BOSTON]: They say Shorty got hit a (indiscernible) times, twice in the face, once in the head (indiscernible).

MR. LEE: Yeah, I heard.

(Pause.)

[BOSTON]: I don't know, bro.

MR. LEE: Yeah. I heard.

(Pause.)

MR. LEE: That shit crazy. Oh, and that Kim—Kim called Keonia, talking about he saying—saying the name; you feeling me?

[BOSTON]: Yeah. He say—you know.

(Pause.)

MR. LEE: I just wanted to make sure you was good, my n*****. Yep.

[BOSTON]: Yeah.

MR. LEE: I'm going to try —

[BOSTON]: I'm —

MR. LEE: Huh?

[BOSTON]: —(indiscernible) might be out of town for a little bit.

MR. LEE: I'm going to try to call you again tomorrow; you hearing me, dummy?

[BOSTON]: All right. I'm not sure if she'll remember but I'm going to switch to another—but I'm (indiscernible)—

* * *

MR. LEE: Yo, make sure you write me a letter or something real quick, if you can, tonight; you feeling me?

[BOSTON]: Huh?

MR. LEE: And drop it off.

[BOSTON]: Huh?

MR. LEE: Drop it off somewhere or mail it to me or something; you feeling me, so I can hear (indiscernible).

[BOSTON]: I'm going to write it and then drop it off at (indiscernible).

MR. LEE: All right. So, I can hear from you, my n*****.

[BOSTON]: All right.

MR. LEE: I love you.

[BOSTON]: I love you, too, bro.

MR. LEE: All right. And keep checking on—keep calling my girl phone, letting her know you all right, n*****, so I ain't got to worry about it.

At the outset of trial, before jury selection, Boston's lawyer orally moved in limine to preclude the State from introducing the recorded telephone call between Lee and Boston into evidence. She argued that Boston "did not waive his right to not be recorded" and that the conversation did not specifically mention Matthews or the date on which the attack on Matthews took place and therefore was too vague to be admitted. Finally, she argued that the conversation was "extremely prejudicial" and that its prejudice outweighed its probative value. The trial court denied the motion. Later, the court granted defense counsel a continuing objection based on these arguments.

The trial proceeded and eventually the prosecutor sought to introduce the recorded conversation through Detective Matthew Barnes, the lead detective in the case. Defense counsel objected on the basis of relevance, and the court recognized her continuing objection. The court denied the motion. The prosecutor played for the jury the very beginning of the recorded call, in which the automated recording was played and Lee asked his girlfriend to add Boston to the call later, and the portion of the recorded call between Lee and Boston. Detective Barnes identified Boston's voice on the call.³

On appeal, Boston argues that the recording of his telephone conversation with his brother was inadmissible as a matter of law because it was made in violation of the Maryland Wiretapping and Electronic Surveillance Act, Md. Code (1974, 2013 Repl. Vol.), §§ 10–401 et seq. of the Courts and Judicial Proceedings Article ("CJP") ("the Wiretap Act"). He further argues that, in any event, the...