Swails v. State

1

EDWARD SWAILS v. STATE OF MARYLAND

No. 1856-2021

Court of Special Appeals of Maryland ^[**]

February 3, 2023

Circuit Court for Prince George's County Case No CT-21-0166X

Wells C.J. Ripken, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

BATTAGLIA, J.

Edward Swails, Appellant, was convicted, after a jury trial in the Circuit Court for Prince George's County, of theft between $25,000 and $100,000 in violation of Section 7-104 of the Criminal Law Article, Maryland Code (2002, 2012 Repl. Vol., 2020 Supp.).^[1] Judge Lawrence V. Hill, Jr. of the Circuit Court for Prince George's County sentenced Swails to ten years in prison, with all but two years suspended, to be followed by five years' supervised probation.

Swails presents three questions for our review:

1. Did the trial court err in admitting evidence regarding GPS tracking of the stolen vehicle?

2. Did the trial court err in permitting the prosecutor to engage in improper closing argument?

3. Is the evidence sufficient to sustain Mr. Swails's conviction for theft between $25,000 and $100,000?

We shall hold that the trial judge did not err in admitting testimony regarding the GPS tracker, that he did not abuse his discretion in permitting the prosecutor to present an argument during rebuttal closing and that the evidence was sufficient to sustain Swails's conviction for theft between $25,000 and $100,000.

Facts & Procedural History

On November 25, 2020, Trudy Ayton reported that her car had been stolen in Capitol Heights, Maryland and that the vehicle was equipped with onboard GPS tracking which was accessed through "Bouncie," a device that plugs into a car's on-board diagnostics port and provides real-time driving data, including the location of the vehicle through a user's mobile phone application. Police used Ms. Ayton's report, as well as her "Bouncie" tracker, to locate her vehicle, follow it for over two hours, and ultimately, arrest the driver, who turned out to be Swails.

On October 5 and 6, 2021, a jury trial was held before Judge Lawrence V. Hill, Jr. of the Circuit Court for Prince George's County. During the trial, Ms. Ayton testified that her car was a 2019 Kia Cadenza and that she had purchased it two months prior to the theft, in September 2020, for "right under $40,000."

During the trial, Sergeant Tariq Hall of the Auto Theft Unit of the Prince George's County Police Department also testified. Sergeant Hall related that he had contacted Ms. Ayton after he received her stolen vehicle report, and she disclosed that her car was equipped with a tracker that provided the real-time location of her vehicle through the "Bouncie" mobile application, which later assisted him and other officers in locating the automobile. During this testimony, Swails's counsel objected regarding the authenticity of the onboard GPS tracker, arguing that the testimony was "unauthenticated systems hearsay," related to what information the GPS tracker relayed:^[2]

[Prosecutor]: So when you gained knowledge of the stolen vehicle, what, if anything, did you do as a result of knowing the vehicle was stolen without saying what anyone said?

[Sgt. Hall]: I gained access to the onboard GPS tracking capability from Kia, logged into that tracking device software and was able to live monitor the actual location of the vehicle.

[Prosecutor]: And what, if anything, did you do after that?

[Sgt. Hall]: I responded to the area of the GPS location. One of the first locations was off of Eastern Avenue.

[Defense Counsel]: Your, Honor, I'm going to object.

(Counsel approach the bench, and the following ensued.)

[Defense Counsel]: Your Honor, this is referring to essentially what is an unauthenticated systems hearsay. There's been no authentication of the way that the app works. There's no indication. The complainant says that she never used it before. So, I just want to be clear that my objection is as to him indicating the truth of the matter being relayed by the GPS system. So, if he wants to discuss what he did and that he was getting reliance on his belief that this is how the system works, that's one thing; but for him to assert the car was at this location, the car was at that location, that is now going out of the bounds of explaining his actions and into reliance on the information being relayed by the GPS system, which has not been authenticated for the truth of the matter asserted.

[Prosecutor]: Yes, Your Honor. The State in response, the State has the most recent case law on GPS tracking and the possibility of a witness to give testimony based on that without authentication, and the case is Martez Johnson v. The State of Maryland, decided February 21st, 2018. In that case it was a Baltimore case. There was an officer accused of rape and assault. That officer, at that time, had the GPS tracking system on them. The Defense counsel objected, and the Court was very clear in its ruling. The Court offered that the average layman is not required in matters of which the jurors would be aware of virtual common knowledge. And then the Court went to that if a witness is testifying something, like, about the time on a clock, the time on a clock may be - in the beginning, was an issue, but the time on the clock is common knowledge. If the hands on the clock are in a certain way, it's not up to the witness to authenticate that the clock really works, because it's common knowledge now with clocks. So, herein, today in modern technology, as the State has alluded to Big Brother, a GPS is a common item, and the court has already ruled that a layman can testify on the reliance on what the GPS does. And I do have copies for the Defense and do the Court that his testimony can be received on the GPS tracking of the car.

Judge Hill overruled the objection.

Sergeant Hall then testified that after having initially located the car, he physically followed it for over two hours, until Swails got out of the driver's seat. After a short chase in which Detective Michael Stargel of the Auto Theft Unit of the Prince George's County Police Department participated, Swails was arrested. When Sergeant Hall was asked on cross-examination about whether he was in uniform, he stated he was in "plain clothes with my tactical vest."

Detective Michael Stargel of the Auto Theft Unit of the Prince George's County Police Department also testified that he encountered Swails after having assisted Sergeant Hall in his pursuit. Detective Stargel related that he was not in uniform.

After the State rested, defense counsel moved for judgment of acquittal on all counts, including that the State failed to sufficiently establish that the value of the car exceeded $25,000, as charged in the criminal information. Judge Hill denied the motion.

Prior to closing, Judge Hill instructed the jurors that closing arguments by counsel were not to be considered evidence. Judge Hill then provided instructions to the jury, which included, among others, Maryland Criminal Pattern Jury Instruction § 3:00, "What Constitutes Evidence," from which he explicitly iterated, "Opening statements and closing arguments of lawyers are not evidence…. Therefore, if your memory of the evidence differs from anything the lawyers or I may say, you must rely on your own memory of the evidence."

During closing, the prosecutor did not allude to the chase of Swails by the police. Swails's attorney, however, argued that the jury should not infer guilt from Swails running from police,^[3] because "there's nothing suspicious about running when an unmarked plain- clothes uniforms try trapping you and following you down," and that "there's no indication [the police] even said they were police." In rebuttal, the prosecutor asserted that Sergeant Hall was in uniform, rather than plain clothes, because he was wearing a "flat vest- protective vest:"

[Prosecutor]: Now, Defense Counsel said don't take anything from the Defendant running when encountered by law enforcement, and Defense Counsel stated that all-that the officers were in plain clothes. Well, the same Defense Counsel asked Detective Stargel, "Were you in uniform?" and Detective Stargel said, "No, I was in plain clothes." He asked Officer Tariq Hall was he in uniform, and Tariq Hall said, "I was in uniform," and that he was in a flat vest-protective vest, and that he was, in fact, in uniform, and he, in fact, said he encountered. So, the inconsistency-

At this point, defense counsel objected, and counsel approached the bench. During a lengthy discussion, the prosecutor stated that she had a "good faith belief" that Sergeant Hall testified that he was wearing a protective vest with "police" written on the front and "WAVE" written on the back, demonstrating that he was in uniform:

[Defense Counsel]: The testimony was very clear that he said he was in plain clothes wearing a vest. He had said it was over his clothes. He had not said he had a uniform. He said plain clothes.

[The Court]: He said plain clothes and he said with the tactical vest.

[Prosecutor]: With "police" on the front, Your Honor.

[The Court]: I don't remember that.

[Prosecutor]: I do recall he said it. He said it has "police" on the front and I believe "WAVE" on the back.

[The Court]: I don't remember any of that.

[Defense Counsel]: He didn't even testify that he was wearing a vest over his clothes, and he specifically said plain clothes. To say "uniform" is highly misleading.

[The Court]: I mean, he definitely said "plain clothes[,]" but he said with tactical vest. So, I don't recall him saying police on the front or definitely not WAVE on the back. I think that - all right. State, again the memory of the jury controls. You can say that's what he said if you have honest belief that's what he said.

[Pros

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