Payne v. State

211 Md.App. 220

65 A.3d 154

Joseph William PAYNE and Jason BOND

v.STATE of Maryland.

No. 2156, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Feb. 27, 2013.

Reconsideration Denied June 3, 2013.

Thomas M. Donnelly & Joseph B. Tetrault, Baltimore, MD, for appellant.

Jeremy M. McCoy (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: MEREDITH, WRIGHT and ARRIE W. DAVIS (Retired, Specially Assigned), JJ.

ARRIE W. DAVIS (Retired, Specially Assigned), J.

Appellants, Joseph W. Payne and Jason Bond, were charged and tried by a jury in a joint trial in the Circuit Court for Baltimore County on charges of first-degree murder and related offenses in the shooting death of Glen Stewart. The jury acquitted Payne and Bond of first-degree premeditated murder, assault in the first degree and conspiracy to commit kidnapping, but convicted them of first-degree felony murder, kidnapping and use of a handgun in the commission of a felony. Payne and Bond were each sentenced to a term of life imprisonment for first-degree felony murder, with all but fifty years suspended and concurrent sentences of five years without parole on the handgun counts, the court merging the kidnapping convictions. Appellants filed this timely appeal and appellant Payne presents the following questions for our review:

I. Did the circuit court err in allowing “cell phone tower” evidence without a foundation by an expert?

II. Did the circuit court err in admitting the hearsay statements of purported co-conspirators when there was no proof that appellant was part of the conspiracy?

Appellant Bond also raises a third question for our review: ¹

III. Did the trial court err in failing to grant a mistrial when the State elicited inadmissible hearsay evidence as to who allegedly committed the murder in this case which severely prejudiced appellant and improperly bolstered the State's case?

For the reasons that follow, we conclude that the trial court abused its discretion by permitting testimony about cellular tower site location without qualifying the State's witness as an expert and that the error is not harmless beyond a reasonable doubt. We shall, therefore, vacate the convictions of Payne and Bond and remand for a new trial. We shall also address the evidentiary questions as they may arise again on retrial.

FACTUAL BACKGROUND

Officer Christopher Winter of the Baltimore County Police Department testified that, at approximately 2:00 a.m. on August 27, 2007, he was on patrol and responded to a call of a body on fire in the woods located at Villa Nova and Queen Anne Roads in Pikesville. Officer Winter described what he found at the scene: “It was a black male laying [sic] on his back still smoldering, smoking.” Members of the fire department, who had also been called to the scene, discovered the body in the woods. Robert Latane, who lived on Villa Nova Road, testified that, on the night in question at approximately 10:00 p.m., he and his wife were watching television when Latane heard what he thought was gunfire: “[W]e heard three pops. Pop. Pop. Pop. Like that.” He looked outside his door but did not see anything significant.

The medical examiner, Dr. Mary Ripple, examined the body of the victim in this case, Glen Stewart. Dr. Ripple testified as follows:

Well, in general there were injuries to Mr. Stewart's body. There were three gunshot wounds to his head and neck. In addition, there were some drag-type scrapes and abrasions primarily to his back, which had underlying soft tissue hemorrhage and intramuscular trauma. There were post mortem burns over about three-quarters of the body, 75 percent of the body. And in addition, there was a partial burned cloth ligature around the neck, some small hemorrhages in the eyes.

There was evidence that two of the three gunshot wounds to the victim's head were the result of close range firing, including the wound in the center of the victim's forehead and the wound in the victim's neck. Three large-caliber bullets were recovered from the victim's body. Dr. Ripple opined that the cause of death was multiple gunshot wounds and that Stewart was dead by the time the body was burned.

Detective Brian Edwards of the Baltimore County Police Department testified that, after police identified the victim as Glen Stewart, he responded to Stewart's residence, spoke with family members and searched his bedroom. There, the detective found a piece of paper next to Stewart's bed containing names and phone numbers, including the name “Weasey.” After subpoenaing the phone records for those numbers, the detective was also able to identify phone records for numbers pertinent to the case which were associated with appellants. Detective Edwards testified that he subpoenaed the phone records for appellants and, from the original electronic spread sheet, was able to isolate calls relating to those numbers made on August 26 and 27, 2007 around the suspected time of the murder.

According to Detective Edwards, Bond had twenty-one regular cell phone activations and thirty-nine “direct connect” activations ² for the dates in question. Detective Edwards “[w]as able to determine information from their records that indicated the time of the call, either dial digits or a phone number that the call was placed to or from, and also a cell tower that the equipment was operating off of for that call.” There then ensued objectionsby both defense counsel, contending that Detective Edwards was offering expert testimony without a proper foundation. As we will discuss in more detail in the discussion that follows, the court ultimately allowed Detective Edwards to testify to the locations of the cell phone towers that were accessed by appellants' cell phones on or around the time of the murder.

Consequently, Detective Edwards testified that Bond was the recipient of a Direct Connect call at 9:14 p.m. on August 26, 2007, the day of the murder, and that the call registered off a cell phone tower at Menlo Drive, located one and a half to two miles from the scene of the crime. Bond also received a direct connect call at 1:03 a.m. on August 27, 2007 at approximately the same time that the fire department received the call to respond to Villa Nova and Queen Anne Roads. This call registered off a cell phone tower atop the Balmoral Towers building at the corner of Liberty Road and Saint Luke's Lane, approximately a mile from the crime scene. Detective Edwards testified that this was the only time Bond's phone registered off this particular tower from August 23, 2007 to August 30, 2007.

As for appellant Payne, Detective Edwards obtained his cell phone records for a period spanning from August 3, 2007 to August 31, 2007. He limited the records to the period from the time of the report of shots fired at Villa Nova Road to the time of the fire. The detective testified that Payne apparently did not answer a call that was placed to his cell phone at 10:02 p.m. on August 26, 2007, but that the call activated off the Balmoral building cell phone tower, which, again, was located approximately a mile from the crime scene.

On cross-examination, Detective Edwards agreed that he had heard that “the range of a cell phone is an unlimited line of sight.” He testified that line-of-sight depended upon a number of factors, including topography. When asked, hypothetically, if a cell phone tower was located in one corner of the courtroom and another tower in another corner, that the way a person held his or her cell phone determined which tower would be accessed, Detective Edwards replied, “I don't know.” He then agreed that he could not tell precisely how far the cell phones were from the towers when the calls were made. When asked, with unlimited line-of-sight if it were possible that a person could be standing on top of the World Trade Center in the Inner Harbor and access a particular cell tower, Detective Edwards replied “I suppose that could be possible.”

On further cross-examination, Detective Edwards testified that Christopher Johnson and Desmond Jones had robbed Donald Bland, also known as Cuzo, also known as “ATL” on August 24, 2007. Stewart had been present during the robbery.Finally, Detective Edwards testified that he returned to the scene of the crime in November of 2007 and found a set of gold caps or fronts, belonging to Stewart, which had been overlooked by the crime scene technicians.

Brittany Keller, Christopher Johnson's girlfriend and a cousin to both appellants, testified that, on the evening of the murder, she was at her aunt's house with her baby and Tyrice McCant, the mother of Payne's child. At some point, the appellants were also present. Keller left that gathering at around 9:00 p.m., went to a friend's house and then went home. Keller testified that her car did not break down that evening and, after seeing appellants at the gathering, she did not see or hear from them the rest of the night.

When the police first questioned Keller in early November, she admitted during trial that she told them that appellants, as well as Johnson and Jones, known to her as “Weasey,” were with her on the night in question. She also told the police that the four men had assisted her when her car ran out of gas. She admitted that Ms. McCant had asked her to tell this story to the police. Keller also admitted she discussed this story with Bond. Regarding her discussion of this false alibi with Payne, Keller testified: “As far as Joey was concerned, I spoke with him about what was said by Jason, but I didn't know what he was going to do as far as the police were concerned.” She testified that, at some point, Payne knew that she had lied to police.

As will be discussed further in the analysis that follows, the trial court allowed recordings of wiretapped cell phone conversations to be played for the jury over a continuing objection.³ In the first conversation between Bond and Keller, Bond stated that he wanted to be certain that...