The opinion of the court was delivered by: Davis, J.
Meredith, Wright, Davis, Arrie W. (Retired, Specially Assigned), JJ.
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:*fn1
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.
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*fn2 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 objections by 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.*fn3 In the first conversation between Bond and Keller, Bond stated that he wanted to be certain that Keller had not deviated from the alibi that appellants came to assist her when she ran out of gas on the night of the murder. Another wiretap recording of Keller's conversation with Payne, made immediately after she talked to Bond, was played for the jury. In that conversation, Keller told Payne that Bond had been questioned by the police: "Jason just called me and they came to see him so umm I don't know if you . . . inaudible . . . me to tell you when I get there or what[']s up." Payne's reply was that she would tell him when she arrived and the conversation ends.
Tyrice McCant testified that, on October 23, 2007, she told police that she did not know anything about the murder and that Keller's car ran out of gas and the four men had rendered her assistance. At trial, McCant acknowledged that the story was false. After Keller dropped her off at her house that evening around 9:00 p.m., McCant did not see appellants, Jones or Johnson again until after midnight, when the group arrived at her house. At that time, she noticed that Jones appeared "frantic and looked like he was scared." McCant testified that she placed two anonymous calls to the Baltimore County Police Department in the fall of 2007 using an assumed name, in which she provided the police information about the Stewart murder, including the identities of the perpetrators. The trial court did not permit her to provide specific names of the individuals identified during those calls at trial.
Desmond Jones, also known as "Weasey," knew Bond and Payne and was appellants' co-defendant, scheduled to be tried subsequent to appellants' trial. He testified pursuant to a plea agreement in which he would plead guilty to conspiracy to commit kidnapping and testify against Payne and Bond in exchange for a thirty-year sentence. According to Jones, he was with Christopher Johnson behind the Rogers Avenue Metro station when Johnson pistol-whipped and robbed Donald Bland, Jr. Bland was accompanied at the time by Glen Stewart. Stewart was standing behind Jones and Johnson during the robbery and assault and watched, but did not attempt to intervene.*fn4
A rumor was widely circulated that Stewart had reported the robbery of Bland to the police. Jones confronted Stewart about the rumor and Stewart denied any cooperation with police. At approximately 8:00 p.m. on the night of the murder, Jones called Stewart, in the presence of Payne, Bond and Johnson and invited him to come smoke marijuana with them. When Stewart arrived, he began smoking and talking with the four men about the robbery and whether Stewart had been talking to anyone about the robbery. After they went to a nearby elementary school to smoke some more, Jones testified that Payne then "grabs the boy and slams him on the floor and hit him in his face." According to Jones, either Bond or Johnson had a gun and, after beating Stewart some more, the group then put Stewart into the back seat of Payne's car, seated between Johnson and Bond. Jones described this and the aftermath as follows:
Glen was fighting for his life for real. He bit the boy Chris on the arm. And I looks back. I think he had a white shirt tied around his mouth. Then he got to the destination. They drag him out the car, put him inside the woods. By the time I walk over there, I heard Payne screaming, just -- this is far enough. Chris just shot him twice. Then Payne said shoot him again. He shot him again. By then I'm running back to the car. And drove back to Tyrice['s] house.
After returning to McCant's house and smoking for an hour or two, the four went to the 7-Eleven, obtained gasoline and drove back to the scene of the murder. Jones testified that he and Bond stayed in the car and that Payne and Johnson went back to the woods and set the body on fire. Jones testified that, after he saw the victim's body on fire, Payne and Johnson ran back to the car and the group left.
The four men then had discussions "to get their story straight" if they were "pulled up" by the police. They concocted the story that Brittany Keller had a flat tire and that they drove out to fix it for her. Jones had spoken with Bond "about getting [the] story straight," and acknowledged that, as far as he knew, Keller's car never did break down, have a flat tire or run out of gas that night.
Jones recounted that he had phone conversations with Bond in December of 2007; the recordings of these conversations were admitted into evidence. In the conversations, Jones and Bond discussed the police investigation of the murder and the story they intended to tell police. In a wiretap recording of a cell phone conversation between Bond and Jones on December 12, 2007, Bond instructed Jones to "[p]ut shit on private." Immediately after the transcription ends, Bond called Jones again and it appears from the wiretap that he was upset that Bond had given the name "Weasey" to the police.
The next wiretap recording played for the jury is another cell phone conversation between Bond and Jones on the same day. Both appear nervous that "the Feds are on us . . . ." After that, the jury heard another phone conversation between Bond and Jones, which shows concern about keeping their versions consistent with those of Keller and McCant. In the final recording between Bond and Jones, Bond asks Jones for Keller's telephone number. In a recording already played for the jury, Bond immediately called Keller to be certain that she did not deviate from the story that she had run out of gas.
The State's final witness was Detective Al Barton, who investigated the murder of Stewart along with Detective Edwards. After responding to the home of the victim, Barton testified that one of the last calls to the Stewart residence prior to Stewart's death was from Jones' cell phone. Also included in Jones' phone records were numbers associated with Bond and Payne. Detective Barton provided his interpretation of the cell phone records:
[W]hen we looked at the historical phone records for two phones in particular, we found that Joseph Payne's phone was registered off a cell tower near the crime scene at 10:00:03, which is around the time the shots were heard. We noticed that the cell phone later determined to be used by Jason Bond was registered off the cell tower near the crime scene at 1:03, around the time the fire was discovered.*fn5
Detective Barton then testified that he also reviewed the cell phone records for Payne. From August 3rd to August 31st, 2007, there had been 1,978 phone calls made by Payne's phone. Over objection, Barton was permitted to testify that the phone call made to Payne's phone on the night of the murder was the only time any of these thousands of phone calls were processed through the Balmoral cell tower near the crime scene. Detective Barton also provided testimony concerning anonymous tips received during the course of the investigation and we will discuss that in the following analysis. Additional facts will be provided as warranted in the following discussion.
Appellants assign error to the circuit court's admission of "cell phone tower" evidence without a foundation by an expert witness. Detective Edwards, they complain, should not have been permitted to offer lay testimony regarding the details of cellular telephone tower operations, usage, signals and position because the testimony was the only independent evidence to corroborate the testimony of Jones, an accomplice, who testified that appellants were present when Stewart was killed and his body burned. Appellants rely heavily on our decisions in Coleman-Fuller v. State, 192 Md. App. 577 (2010) and Wilder v. State, 191 Md. App. 319, cert. denied, 415 Md. 43 (2010).
The State counters that Wilder and Coleman-Fuller are distinguishable in that the officers in those cases interpreted the phone records and cell tower locations to draw conclusions about the respective defendants' location, whereas, in the case sub judice, "Detective Edwards simply testified as to factual, objectively verifiable information regarding appellant's cell phone records and cell tower locations, without drawing conclusions or rendering any opinion regarding the location of appellants or their cell phones." According to the State, "there was no 'opinion' testimony, lay or otherwise, in this case and, even if it did constitute opinion testimony, there was no need for the State to produce an expert to testify regarding the facts relating to appellants' cell phone records."*fn6
We hold that Wilder and Coleman-Fuller are controlling in this case and that the trial court erred in admitting the lay opinion of Detective Edwards. We also hold that the error was not harmless beyond a reasonable doubt and that a remand for further proceedings is in order.
During Detective Edwards' testimony, the following ensued: [WITNESS]: There was one call of most interest at - [BOND'S COUNSEL]: Objection.
THE COURT: Well, sustained to the characterization. Just the number of calls.
[WITNESS]: The time frame to the call immediately before the 10 o'clock pertinent time to just I guess within 15 minutes or so of the call for the report of fire, we have two calls of interest, one at 9:14:36 p.m. on August 26, 2007, and one at 1:03:13 a.m. on August 27, 2007.
[STATE]: What did you do with those calls?
[WITNESS]: Those calls, as well as many others, I examined the records that I obtained from the Sprint Nextel Company, was able to determine
[BOND'S COUNSEL]: Objection. THE COURT: Overruled.
[WITNESS]: Was 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.
[STATE]: By that you mean cell phone? [WITNESS]: Cell phone, yes.
[STATE]: In regard to the first of those calls, the 9:14 call, were you able to determine what cell phone that call -
[BOND'S COUNSEL]: Objection.
[PAYNE'S COUNSEL]: Objection. May we approach? (The following discussion was held at sidebar:)
[PAYNE'S COUNSEL]: Your Honor, we now have the police officer interpreting the records that were kept by the custodian and properly authenticated. But we have no, absolutely no information about the detective's ability to interpret those records. And without a foundation, I am objecting.
And in addition, your Honor, they are highly technical aspects of cell tower usage. Cell towers are not unlimited. When a cellular tower becomes overflowed, it automatically refers its signal to another tower. You can have but one call and up to two or three referrals for a tower.
But the point is there is no expertise on the part of this witness to express or to talk about how those signals are received by towers and whether they originated with that tower or come from a relay tower.
[BOND'S COUNSEL]: I would object. I agree and adopt the whole argument of [Payne's Counsel]. I think it's improper. He is not qualified to testify as to the things he is going to testify to.
[STATE]: He's not an expert. He doesn't need to be an expert because I am not asking him for an expert opinion as to where this phone was in terms of direction or latitude or longitude or specific location. I am asking what the record says. I can go through some very basic steps to show how he was able to use the records, and the actual records themselves that have that step-by-step process. And I was going to do that in my next area.
The court initially agreed that the State needed to show more in the way of foundation. After testimony resumed and Detective Edwards was directed to an instruction sheet for helping to interpret the records, defense counsel objected and the jury was excused. Defense counsel proffered that they never received this instruction page and that this was expert testimony. The State responded "I don't know if this specific piece of paper was sent over in discovery along with the cell phone records," but asserted that the instructions that came with the Sprint Nextel records provided the foundation. The following then ensued:
THE COURT: I haven't kept records. I was just looking at them to see what they are.
To me, the distinction is the following. The detectives look at records and say based upon these records, here's what calls came in and the time, here's what cell tower that call bounced off. Unless there are separate records beyond that.
[BOND'S COUNSEL]: But it's not. It doesn't say where the cell tower is. Just gives a number.
THE COURT: But you can get it. That information is contained -- obtainable through Sprint records and it's historical data. They keep a record of what number you call or what number you are dialing and what tower it reflected off of.
[BOND'S COUNSEL]: But it doesn't tell you this is Tower C located in Loch Raven.
THE COURT: It says tower number blah, blah, blah. You can then plug it in and get latitude and longitude. All he is doing is saying is this is what this is.
[BOND'S COUNSEL]: And you don't need an expert to do that? I can't do that. I'm a lay person. Anything above what a lay person can do I would think an expert would be necessary.
[BOND'S COUNSEL]: I may be a low-grade person or technical person but not very smart. I would think that an expert would still be needed for the expertise.
Payne's counsel then interposed the following objection:
Your Honor, here's the problem. There are a number of problems but the two that seem to be most striking are, number one, that the detective has used instructions that came along with the records apparently from this telephone organization. We didn't get those explanations. We got the records but we didn't get the explanation.
Basically what is happening here is there is an expert somewhere in Teaneck, New Jersey, who wrote these things. The detective is going to rely upon them. We didn't even receive them to review them. And the detective - I mean, maybe I'm wrong, maybe he's received this education. But the records indicate beginning towers and ending towers and they gave latitude and longitude but they don't indicate in the records where it talks about beginning towers and ending towers.
We also don't deal with whether or not the beginning tower is the beginning of the calls as routed in the system or whether it's been bounced off three other towers to get to the beginning tower.
And I don't think the detective has expertise to deal with those issues and yet his testimony is going to sound like he is concretely informed by the records that this is the beginning tower at this location. I wouldn't be surprised if the next thing we hear out of him is the radius of distance by signal from the phone to the tower. And at that point my young friend is going to explode.
We have a lay person talking about highly technical things and there is no foundation that any of the data is valid. The records are there but his interpretation of it requires a great deal of technical expertise that he doesn't have.
Still outside the presence of the jury, Detective Edwards informed the court that the Nextel instructions
[u]se the last two sets of numbers, first being the lag ID, second being the cell ID. Says match that to the table, which there is [sic] multiple ways you can get the cell tower information. There's a Web site that maintains it, secure Web site. There's an Excel spread sheet that comes with the records. Go in there, search that lag. It gives you the latitude and the longitude. Says you can use any mapping software. You look at it, find the point on the map where the cell site is located.
Detective Edwards further asserted that the "key" to explaining the cell phone records was not produced from those records: "That is not - this is something I produced from another document." According to appellants, the other document was never identified. In overruling the objection to the testimony of Detective Edwards, the circuit court relied on an unreported opinion from the Eleventh Circuit.*fn7 The court ruled as follows:
What is before us now is really a question of whether the detective's testimony is actually lay testimony or more in the nature of expert testimony for which there's no foundation that's been laid.
The issue was before the Eleventh Circuit recently in United States versus Feliciano, which is 300 [Fed. Appx.] 795 (2008). Cert. was denied by the Supreme Court. Basically it said the line between expert and opinion testimony is not easy to draw. A law enforcement officer may be qualified to provide both lay and expert testimony.
And then it talks about whether the officer's testimony in talking about cell tower locations crossed the line from lay to expert and they find that it did not. In reviewing cellular telephone records in a summary of those calls, which identified cellular sites for each call, then based on personal knowledge concerning the location of the cell towers, he testified to those calls and where they were in relation to those towers.
I mean, if we are talking about the same thing here, the only issue is whether you actually got the ledgers so that you can independently verify the tower locations indications that was shown both on the records and pictorially on maps that were included in the wiretap summary and it seems to me that the ...