State v. Payne

440 Md. 680

104 A.3d 142

STATE of Maryland

v.Joseph William PAYNE & Jason Bond.

No. 85, Sept. Term, 2013.

Court of Appeals of Maryland.

Dec. 11, 2014.

Sarah Page Pritzlaff, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner/Cross–Respondent.

Joseph B. Tetrault, Assigned Public Defender, Baltimore, MD, on brief, for Respondent/Cross–Petitioner.

Thomas M. Donnelly, Assigned Public Defender (The Law Offices of Thomas M. Donnelly, LLC, Baltimore, MD), on brief, for Respondent/Cross–Petitioner.

Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and IRMA S. RAKER (Retired, Specially Assigned), JJ.

Opinion

BATTAGLIA, J.

Joseph William Payne and Jason Bond were convicted in a joint trial of first degree felony murder and kidnapping, along with the use of a handgun in the commission of a felony. These convictions were based, in part, on the testimony of Detective Brian Edwards of the Baltimore County Police Department. Detective Edwards testified, without having been qualified as an expert witness under Maryland Rule 5–702,¹ that by interpreting Payne's and Bond's cell phone records subpoenaed from Sprint Nextel² for the period from August 26 to August 27, 2007, he was able to determine the location of cell phone towers through which particular calls were routed and to plot the locations of those towers on a map in relation to the crime scene. The attorneys for Payne and Bond objected to Detective Edwards's testimony arguing,inter alia, that he should have been qualified as an expert. The trial judge overruled their objections and opined that Detective Edwards's testimony only related facts that could be independently verified from the phone records.

The trial judge also admitted into evidence against both Payne and Bond six recorded phone conversations in which Bond was a participant but Payne was not, in which the discussions suggested an alibi on the night of the murder. After the trial judge had determined that a conspiracy to conceal the murder existed and that Payne and Bond were participants in that conspiracy, she admitted generally the six recordings.

In a reported opinion, the Court of Special Appeals reversed Payne's and Bond's convictions, ruling that the trial court erred in admitting Detective Edwards's testimony without his having been qualified as an expert witness. Payne & Bond v. State, 211 Md.App. 220, 231, 65 A.3d 154, 160–61 (2013). Thus, a new trial was ordered for both defendants. Concerning an issue likely to arise upon re-trial, the intermediate appellate court apparently determined that Bond's statements during the wiretapped telephone calls could be admitted against Payne, not as the statement of a co-conspirator, but under Maryland Rule 5–803(a)(1),³ which permits admissions of a party-opponent. Id. at 252, 65 A.3d at 172–73. We granted the State's Petition for Certiorari to consider the following question:

May a trial court, in the exercise of its sound discretion, allow a lay witness, without qualification as an expert, to testify about objectively verifiable facts that do not involve the witness forming any opinion or drawing any inference or conclusion?

We also granted Payne's cross-petition to address the following question:

Did the Court of Special Appeals err in ruling that wiretap statements made by respondent Bond but not respondent Payne were nevertheless admissible against Payne as statements by a party opponent?

Payne & Bond v. State, 434 Md. 311, 75 A.3d 317 (2013).

We shall hold that Detective Edwards needed to be qualified as an expert under Maryland Rule 5–702 before being allowed to testify as to his process for determining the communication path of Payne's and Bond's cell phones, as well as his conclusion that the Menlo Drive cell tower and the Balmoral Towers cell tower were the most pertinent to the case.

The present case began when, in the early morning of August 27, 2007, officers of the Baltimore County Police Department, including Detective Brian Edwards, a fourteen year veteran of the force with four and a half years in the homicide unit, responded to a call and discovered a body on fire in the woods at Villa Nova and Queen Anne Roads in Pikesville. Early in the investigation, detectives recovered a scrap of paper from the bedroom of the victim, Glen Stewart, containing two names and associated phone numbers, one of which was that of Desmond Jones. Investigation of Desmond Jones's cell phone records led detectives to identify numbers associated with Payne, Bond, Christopher Johnson, Tyrice McCant and Brittany Keller. Detectives obtained dialed number recorder (“DNR”) authorizations to capture the numbers of phones called by those individuals. According to the State in its brief, the “DNRs showed numerous calls between McCant, Keller, Payne, Bond, Johnson, and Jones” around the time of police interviews of McCant and Keller in late October and early November of 2007.

Investigation of Jones's records also led Detective Edwards to subpoena additional sets of “phone records” associated with phone numbers with which Jones communicated, totaling “close to a hundred different sets of records”. These “phone records”, which were received electronically from Sprint Nextel, totaled “thousands of pages” when printed. Detective Edwards testified that he then chose individuals identifiable as the most “pertinent”, including Payne and Bond, for whom he amassed records of their cell phone calls from August 3 through August 31, 2007. Apparently, the amassed information was in the form of Call Detail Records⁴ for Payne's and Bond's cell phones, which accounted for roughly thirty to forty pages for Payne, while Bond's were “under 10 pages”.

Detective Edwards further testified that, once he isolated the separate working copies, he parsed Payne's records to a single page document and Bond's records to a quarter-page exhibit, of trimmed call entries depicting communications to or from Payne's and Bond's phones within the timeframe from August 26 to August 27, 2007, under the headings of “Duration”, “Direction”, “Dialed”, “Beginning Tower”, “Ending Tower”, “Lat” and “Long”; each document was admitted into evidence as Exhibit 12 and 11B, respectively.⁵ Excluded from both exhibits was information that Detective Edwards determined was redundant, extraneous,⁶ as well as identification numbers for the cell towers associated with each entry for which he substituted his own derived geographical coordinates.⁷

Detective Edwards also testified that he could determine the call time, phone number called, whether the call was incoming or outgoing and the cell tower through which the cell phone communicated, based on the complete records he had received from Sprint Nextel. When Payne's counsel objected to the Detective's testimony on the ground that Detective Edwards needed to be qualified as an expert in order to interpret the data, the State responded that the actual records contained step-by-step instructions as to the use of the records, although neither the actual records nor the instructions were introduced into evidence.⁸

Detective Edwards proffered, outside of the presence of the jury, the procedure that he used to determine cell tower locations. According to him, the process required matching certain data points associated with a cell phone call to a table available on an unnamed “secure Web site” or on “an Excel spread sheet that comes with the records”, to determine the latitude and longitude of the corresponding cell tower.⁹ Neither the “Excel spread sheet that comes with the records” nor the “secure Web site” that allegedly maintains cell tower information was admitted into evidence. Satisfied that Detective Edwards need not have been qualified as an expert to testify, as he did to that point, the trial judge permitted the State to further question the Detective about the location of the cell towers that transmitted Payne's and Bond's communications listed in Exhibits 12 and 11B.

Detective Edwards testified thereafter regarding the location of the first cell tower to which Bond's cell phone allegedly connected on the night of the crime, a cell tower located on Menlo Drive, and opined that the cell tower was between one and a half to two miles from the crime scene.¹⁰ The State then offered, as Exhibit 9, a map Detective Edwards created upon which he had printed what he determined to be the location of the Menlo Drive tower as well as the location of the murder.¹¹

Detective Edwards further testified that he determined Bond's cell phone also registered off of a second cell tower located on the Balmoral Towers building, which, according to him, was located approximately a mile from the crime scene, all of which was reflected on Exhibit 9, which was admitted into evidence.

An oversized aerial photograph, already admitted into evidence as Exhibit 2, of the area surrounding Villa Nova and Queen Anne Roads then was shown to Detective Edwards. Exhibit 2 contained a preprinted graphic showing the location where the victim's body was found and a sticker identifying the home of a witness. The State then asked Detective Edwards to place a sticker depicting the location of the Balmoral Towers cell tower on Exhibit 2, which he did.

The State then presented Exhibit 3 to Detective Edwards, which was another oversized aerial photograph showing, on a larger scale, the same general geographic area depicted on Exhibit 2 and which was admitted into evidence during Detective Edwards's testimony. On Exhibit 3, the State had identified the location where officers found the victim's body, in addition to the location of the residences of the victim, Payne, Bond and two others who had been investigated by police in connection with the murder.¹² Detective Edwards, at the State's request, again identified and indicated by stickers the locations of the Menlo Drive cell tower and the Balmoral Towers cell tower on Exhibit 3.

Detective Edwards further testified that,...