Mooney v. State

487 Md. 701

321 A.3d 91

Christopher MOONEY

v.STATE of Maryland

No. 32, Sept. Term, 2023

Supreme Court of Maryland.

August 13, 2024

Circuit Court for Baltimore City, Case No. 121280030, Jennifer B. Schiffer, Judge.

Argued by Michelle M. Martz, Assigned Public Defender (Michelle M. Martz, P.A., Frederick, MD), on brief, for Petitioner.

Argued by Virginia S. Hovermill, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland of Baltimore, MD), on brief, for Respondent.

Argued before: Fader, C.J., Watts, Booth, Biran, Gould, Eaves, Michele D. Hotten (Senior Justice, Specially Assigned), JJ.

Watts, J.

In this case, we must determine whether video footage can be authenticated through circumstantial evidence rather than by methods that have been described as the "pictorial testimony" or the "silent witness" theories of authentication, which require testimony by a witness with personal knowledge of the content of the video or testimony concerning the method of production of the video, respectively. More specifically, the question in this case is whether video footage was properly authenticated through circumstantial evidence where a witness who testified about the content of the video did not have personal knowledge of all of the events depicted in the video. In addition, we must determine whether the "reasonable juror" test—under which there must be sufficient evidence for a reasonable juror to find in favor of authentication by a preponderance of the evidence—applies to authentication of videos. See State v. Sample, 468 Md. 560, 597, 228 A.3d 171, 194 (2020).

Maryland Rule 5-901(a) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Maryland Rule 5-901(b) sets forth a nonexclusive list of ways to authenticate evidence. Under Maryland Rule 5-901(b)(1), evidence can be authenticated through the testimony of a witness with knowledge that the evidence is what it is claimed to be. Under Maryland Rule 5-901(b)(4), evidence can be authenticated through "[c]ircumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be."

[1] We have previously discussed three theories of authentication for videos. See Dep’t of Pub. Safety & Corr. Servs. v. Cole, 342 Md. 12, 20-21, 30, 672 A.2d 1115, 1119-20, 1124 (1996). First, under the "pictorial testimony" theory of authentication, a video can be authenticated where a "witness testifies from first-hand knowledge that the [video] fairly and accurately represents the scene or object it purports to depict as it existed at the relevant time." Id. at 20-21, 672 A.2d at 1119 (cleaned up). The "pictorial testimony" theory of authentication corresponds to Maryland Rule 5-901(b)(1).

[2] Second, under the "silent witness" theory of authentication, a video can be authenticated where there is "an adequate foundation assuring the accuracy of the process producing" the video. Cole, 342 Md. at 21, 672 A.2d at 1119-20 (cleaned up). Such a foundation can be laid where, for instance, a witness testifies about "the type of equipment or camera used, its general reliability, the quality of the recorded product, the process by which it was focused, or the general reliability of the entire system." Jackson v. State, 460 Md. 107, 117, 188 A.3d 975, 981 (2018) (cleaned up). The "silent witness" theory of authentication corresponds to Maryland Rule 5-901(b)(9), under which an exhibit can be authenticated through "[e]vidence describing a process or system used to produce the proffered exhibit or testimony and showing that the process or system produces an accurate result."¹

In the Circuit Court for Baltimore City, after a trial by jury, Petitioner, Christopher Mooney, was found guilty of second-degree assault, reckless endangerment, possession of a regulated firearm after conviction of a disqualifying crime, wearing, carrying, or transporting a handgun, illegal possession of ammunition, and discharging a firearm in Baltimore City. The events underlying the verdict involved the nonfatal shooting of Joshua Zimmerman in his vehicle outside of a medical cannabis dispensary in Baltimore City. As a witness for the State, Mr. Zimmerman testified that he was shot in the back while sitting in the driver’s seat of his vehicle. Over objection, during Mr. Zimmerman’s direct examination, the circuit court admitted into evidence a video, retrieved by a detective, that had been recorded by a camera mounted on the exterior wall of a residence near the site of the shooting.² The video was 1 minute and 51 seconds long.

Before admission of the video, Mr. Zimmerman testified that, in the months prior to the shooting, he had suspected Mr. Mooney of sleeping with his girlfriend, but Mr. Mooney had denied the allegation. Mr. Zimmerman testified that, on the night of the shooting, Mr. Mooney walked past his vehicle and the two had a brief exchange of words in which he called Mr. Mooney a "b[****]." Mr. Zimmerman testified that Mr. Mooney walked past his vehicle immediately before the shooting and that, after Mr. Mooney passed the vehicle, he was shot from behind. Mr. Zimmerman did not testify that he saw the shooter at the time of the shooting.

Mr. Zimmerman testified that he had watched the video in preparation for trial and that the video was a true and accurate depiction of the events that occurred on the night of the shooting and did not appear to have been altered or edited. After the video was admitted into evidence, Mr. Zimmerman identified Mr. Mooney as the person depicted on the video in the white shirt "walking around" and confirmed that the footage depicted him exiting the vehicle holding his back, because that is where he was shot, and running to a nearby McDonald’s. During the State’s closing argument, the prosecutor contended that the video showed Mr. Mooney walk past Mr. Zimmerman’s vehicle and shoot him from behind.

In this Court, Mr. Mooney contends that, although the methods of authentication listed in Maryland Rule 5-901(b) are non exhaustive, none of the methods are universally applicable. Mr. Mooney asserts that the Appellate Court of Maryland erred in concluding that video evidence could be authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4) and that this Court’s holding in Sample, 468 Md. at 567-68, 228 A.3d at 176, and the "reasonable juror" test do not apply to authentication of video evidence. Mr. Mooney’s position is that our decision in Washington v. State, 406 Md. 642, 652, 961 A.2d 1110, 1116 (2008), stands for the proposition that video footage can be authenticated under only two methods, which he summarizes as follows: the "pictorial testimony" theory, which "requires a human being to be able to swear they personally perceived what the photograph portrayed[,]" and the "silent witness" theory, under which "a witness can speak to the reliability and authenticity of the system used to procure the video, thus permitting the video to speak for itself." (Cleaned up).

The State responds that the "pictorial testimony" and "silent witness" methods of authentication are not the exclusive ways to authenticate video footage. The State argues that "the authentication rule requires only that a ‘reasonable juror’ could find that a particular item is what the proponent claims it to be." The State maintains that a variety of cases from federal and other State courts, as well as decisions of the Appellate Court, permit authorization of video footage by means that include circumstantial evidence.

We hold that, for video footage to be admissible, as with other evidence, there must be sufficient evidence for a reasonable juror to find by a preponderance of the evidence that the video is what it is claimed to be. In other words, the "reasonable juror" test applies to authentication of videos—i.e., for a trial court to admit a video, there must be sufficient evidence for a reasonable juror to find more likely than not that the evidence is what it is purported to be. In addition, we hold that, like other evidence, video footage can be authenticated in a variety of ways, including through circumstantial evidence under Maryland Rule 5-901(b)(4).

We conclude that the video footage at issue in this case was properly authenticated through a combination of the testimony of a witness with knowledge under Maryland Rule 5-901(b)(1) and circumstantial evidence under Maryland Rule 5-901(b)(4), as a reasonable juror could have found by a preponderance of the evidence that the video was what it purported to be—namely, a fair and accurate depiction of Mr. Zimmerman’s shooting and the events occurring before and after it. The parts of the video depicting the events that Mr. Zimmerman saw, or participated in, before and after the shooting were properly authenticated through his testimony under Maryland Rule 5-901(b)(1) as a witness with personal knowledge of the events.

The part of the video depicting the shooting was properly authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4), as there was sufficient circumstantial evidence from which a reasonable juror could have inferred that the video fairly and accurately depicted the shooting. The close temporal proximity of the shooting to the events occurring immediately before and after the shooting, of which Mr. Zimmerman had personal knowledge, gave rise to the reasonable inference that the video accurately depicted the shooting. In addition, Mr. Zimmerman testified that the video truthfully and accurately depicted the events that he saw and did not appear to have been edited or altered. There also was evidence of the nature and origin of the video, from which a reasonable juror could have inferred that the video was recorded the night of the shooting by...