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Phillips v. State

Court of Special Appeals of Maryland

June 28, 2017


         Circuit Court for Anne Arundel County Case No. 02-K-14-1626.

          Meredith, Graeff, Leahy, JJ.


          Leahy, J.

         Bashunn Phillips ("Appellant") is charged with the first-degree murder of Shar-Ron Mason and related crimes. Phillips filed a motion in limine to exclude certain cell phone evidence in the Circuit Court for Anne Arundel County, and, on February 12, 2016, the court granted Phillips's motion. The State sought in banc review of the order granting Phillips's motion in the circuit court pursuant to the Maryland Constitution, Article IV, section 22, and Maryland Rules 4-352 and 2-551.

         Phillips filed a motion to dismiss the State's request for in banc review for lack of jurisdiction. A three-judge panel sitting in banc denied the motion. In a written order and memorandum dated June 3, 2016, the panel found in favor of the State, thereby reversing the trial court's ruling. Phillips filed a notice of appeal of the in banc decision and presents the following questions for our review:[1]

1. "Did the three-judge panel lack appellate jurisdiction to review [the trial court's[2] ruling?"
2. "Did the three-judge panel fail to identify any legal error in [the trial court's] ruling?"
3. "Did [the trial court] correctly conclude that the State's use of a drive test for the forensic purpose of pinpointing the location of a cell phone during a crime was not generally accepted in the relevant scientific community, as required by the Frye-Reed test for admissibility of expert testimony?"
4. "Did [the trial court] properly exercise [its] discretion under Maryland Rule 5-702 in ruling that the State's witnesses were not qualified to offer expert testimony about the use of drive tests for the forensic purpose of pinpointing the location of a cell phone during a crime?"

         The State has filed a motion to dismiss this appeal, arguing that this Court does not have appellate jurisdiction over the appeal filed by Phillips. We deny the State's motion.

         We hold that the in banc panel lacked jurisdiction to review the trial court's grant of Phillip's motion in limine because it was an unappealable interlocutory order. Accordingly, we do not reach Phillips's remaining contentions. We vacate the panel's order, and remand the case with directions to reinstate the trial court's order and dismiss the appeal so that criminal proceedings may resume.


         A. Indictment and Motion in Limine

         On July 18, 2014, a grand jury indicted Phillips for the December 10, 2013 murder of Shar-Ron Mason. Phillips was charged with first-degree murder, second-degree murder, manslaughter, the use of a firearm in a felony, and the use of a firearm during a crime of violence. He was also charged with wearing, carrying, or transporting a handgun. Phillips was then arrested pursuant to a warrant.

         The State notified Phillips that it intended to offer at trial a radio frequency ("RF") signal propagation map purporting to establish the approximate location of Phillips's phone on the morning of December 10, 2013. The propagation map represented data obtained through a drive test[3] conducted by Special Agent Richard Fennern, a member of the Federal Bureau of Investigation's Cellular Analysis and Survey Team, on October 23, 2014.

         Phillips filed a motion in limine on August 7, 2015, seeking to exclude the RF signal propagation map and related testimony. Phillips argued that the method used to create the map was not generally accepted as reliable within the relevant scientific community under Maryland's Frye-Reed test for admissibility of evidence based on novel scientific methodology.[4] Phillips acknowledged that cell phone tower "ping" evidence is admissible, but drew a distinction between the method used to create the RF signal propagation map and the collection of historical cell phone "ping" evidence.[5] Phillips argued that a drive test-in this case conducted ten months after the murder of Shar-Ron Mason-"is merely a snapshot in time that cannot give any reliable prediction of where [radio frequency] signals were or where they were going over time." "In order for the test to be reliable, conditions would have to be analogous to those that existed on [the date of the murder] such as but not limited to weather, time, volume of call traffic, and the state of the equipment in use by the cell phone company."

         B. Frye-Reed Hearing and the Trial Court's Opinion

         The trial court heard arguments on Phillip's motion and conducted a Frye-Reed hearing over four days between September 24, 2015 and October 30, 2015. Phillips maintained that drive tests are routinely performed by cell phone companies to improve coverage and minimize "dropped calls, " but that they are not generally accepted in criminal investigations. Testifying for the defense, William Folson, accepted as an expert witness "in the field of cellular technology and historical cell site analysis" explained that he "consider[s] [drive tests] a waste of time" because "[t]hey add no value to the historical analysis of a cell phone." He further testified that the manner in which Special Agent Fennern had performed the drive test was not accepted as reliable in the relevant scientific community. Mr. Folson explained that the RF signal range in December 2013 when the murder occurred would be different than the range in October 2014 when the drive test was conducted because the strength of RF signals fluctuate. Because of this, according to Mr. Folson, a drive test is not representative of the strength of the RF signals on any other date. He also pointed out that drive tests were not peer reviewed, accepted by the scientific community, or used in criminal investigations.

         Providing a different opinion and testifying for the State, Special Agent Fennern was accepted as an "expert in the field of historical cell site analysis, cellular technology, and [] radio frequency drive testing for cell phone mapping." Agent Fennern opined that factors such as weather only have a "minimal" impact on radio frequency strength. He also testified that, relying on information provided by cell phone companies, the RF signal strength only varied by five or ten percent.

         The State also offered the testimony of T-Mobile employee Stephen Willingham, accepted as an expert in radio frequency engineering. He testified that cell phone companies use drive tests for "competitive analysis reasons." He explained that when a customer complains about a missed call, a cell phone company will use a drive test to attempt to recreate that dropped call to identify a gap in service. Mr. Willingham testified that, over time, radio frequency "[f]ootprints remain consistent as long as nothing major has changed[, ]" referring to the physical layout of the cell site, such as antennas and equipment. He stated that the maximum variation he had seen for a footprint was a quarter mile.

         In a written memorandum and order dated February 12, 2016, the trial court granted Phillips's motion excluding the RF signal propagation maps and related expert testimony on drive tests. First, the trial court concluded that experts were required to testify on the drive test methodology. Next, the court concluded that law enforcement's use of drive tests for forensic purposes was novel and, thus, subject to the Frye-Reed reliability and admissibility standards. After determining that the digital forensic science field is the relevant scientific community, the court found that the State's experts lacked familiarity with that field and were unable to produce studies or peer-reviewed articles in that field supporting the reliability or general acceptance of drive tests for forensic purposes. The court ultimately concluded that the State did not establish that drive tests as used by the FBI are generally accepted in the digital forensic science community. The court then mused that, even if the drive test were considered generally accepted and reliable, the State's experts were not qualified to testify because they were not members of the digital forensic science community and failed to satisfy the requirement of Maryland Rule 5-702.[6]

         C. In Banc Proceedings

         i. Article IV, § 22 and Maryland Rule 2-551

         Displeased with the court's interlocutory order granting Phillips's motion in limine, on February 18, 2016, the State filed a request for in banc review of the trial court's order pursuant to the Maryland Constitution, Article IV, section 22, and Maryland Rules 4-352 and 2-551. To provide context for the parties' ensuing filings and arguments, we interpose the relevant text authorizing in banc review in the circuit courts.

         Article IV, section 22, of the Maryland Constitution reads:

Where any trial is conducted by less than three Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting at which such decision may be made; and the procedure for appeals to the Circuit Court in banc shall be as provided by the Maryland Rules. The decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal by an adverse party who did not seek in banc review, in those cases, civil or criminal, in which appeal to the Court of Special Appeals may be allowed by Law. The right of having questions reserved shall not, however, apply to trials of Appeals from judgments of the District Court, nor to criminal cases below the grade of felony, except when the punishment is confinement in the Penitentiary; and this Section shall be subject to such provisions as may hereafter be made by Law.
Maryland Rule 2-551 provides in pertinent part:[7]
(a) Generally. When review by a court in banc is permitted by the Maryland Constitution, a party may have a judgment or determination of any point or question reviewed by a court in banc by filing a notice for in banc review. Issues are reserved for in banc review by making an objection in the manner set forth in Rules 2-517 and 2-520. Upon the filing of the notice, the Circuit Administrative Judge shall designate three judges of the circuit, other than the judge who tried the action, to sit in banc.

         ii. Motion to Dismiss

         Phillips filed a motion to dismiss on February 24, 2016, arguing that the in banc panel was without jurisdiction to hear the appeal. Phillips reasoned that Maryland's appellate courts have repeatedly recognized that Article IV, section 22, of the Maryland Constitution permits in banc review only when a direct appeal is allowed and the State had no statutory right to appeal the court's order. Phillips relied on decisional law holding that the standard for appealability to an in banc panel is the same as that to the Court of Special Appeals, including Board of License Commissioners for Montgomery Cnty. v. Haberlin, 320 Md. 399 (1990), abrogated on other grounds by Bienkowski v. Brooks, 386 Md. 516 (2005); Dean v. State, 302 Md. 493 (1985), abrogated on other grounds by Bienkowski, supra, 386 Md. at 516; and Estep v. Estep, 285 Md. 416 (1979), abrogated on other grounds by Bienkowski, 386 Md. at 516.

         In response, the State argued, inter alia, that in banc review of a trial court decision was not an "appeal, " but instead a "review, " and that the Maryland Constitution provided a right to an in banc determination in this context. Specifically, the State argued that the plain, ordinary, and common meaning of the language of the Maryland Constitution expressly permits in banc review "upon the decision or determination of any point, or question, by the Court[.]" The State also maintained that Maryland Rule 2-551 is "straightforward" in that it provides that upon filing a notice for in banc review, the circuit administrative judge "shall designate three judges of the circuit court . . . to sit in banc." Therefore, the State argued, "the appointment of a panel is not discretionary, and is not dependent upon the movant first having to clear any sort of merits hearing."

         The in banc panel denied Phillips's motion to dismiss on March 24, 2016, stating that it would reconsider the motion after oral argument.

         iii. Further Proceedings and Final Order

         The State filed a "Memorandum in Support of its Request for In Banc Review of [the trial court]'s February 12, 2016 Order Granting Defendant's Motion to Exclude Tangible Evidence and Testimony Regarding Cell Phone Drive Tests" on March 17, 2016. On the jurisdictional question, the memorandum restated verbatim the arguments relied upon by the State in its response to the motion to dismiss. On the merits, the State argued that (1) the trial court incorrectly permitted a Frye-Reed hearing because this scientific technique is not new or novel; (2) the trial court had incorrectly applied Frye-Reed because drive tests have widespread acceptance in the relevant scientific field; (3) the trial court erred by incorrectly and narrowly defining the relevant scientific community; and (4) the trial court erred in allowing Mr. Folson to testify as an expert.

         Phillips filed a "Defendant-Appellee" brief in which he renewed his motion to dismiss, maintaining that: (1) appellate jurisdiction is defined by statute; (2) the right to an in banc appeal is coextensive with the right to appeal to a traditional Maryland appellate court; and, (3) the State had no statutory right to appeal the trial court's evidentiary ruling to this Court or the Court of Appeals. Specifically, Phillips maintained that Maryland Code (1973, 2013 Repl. Vol., 2016 Supp.), Courts and Judicial Proceedings Article ("CJP"), §§ 12-301 and 12-302 did not allow the State to appeal in this circumstance. Otherwise, in defense of the trial court's ruling, Phillips averred: (1) the trial court properly admitted Mr. Folson as an expert witness; (2) the trial court properly concluded that the drive test technique is not generally accepted under Frye-Reed; and (3) the trial court properly concluded that the State's experts lacked a sufficient factual background under Maryland Rule 5-702(3) to testify.

         At oral argument on May 17, 2016, the State persisted in its contention that the in banc panel had jurisdiction. The State asserted that the purpose of section 22 was to "allow quick informal reviews of . . . errors by trial judges[, ]" and that the history of the 1864 Constitutional Convention indicated that § 22 "was meant to extend to instances where an appeal ordinarily would not lie[.]"

         Phillips countered with the simple proposition that binding Court of Appeals precedent exists contrary to the State's position on the very same point. Phillips pressed that jurisdiction is not something the in banc panel can create on its own and that it is established by the Constitution and statutory provisions, neither of which permit appeal of the trial court's interlocutory order. Phillips also contended, on policy grounds, that recognizing in banc review of a grant of a motion in limine would open the floodgates to litigants requesting in banc review from all interlocutory orders.

         On June 3, 2016, the in banc panel entered an order, concluding that it had jurisdiction to hear the State's appeal and that the trial court abused its discretion in its evidentiary rulings. Addressing the threshold jurisdictional question, the panel acknowledged that the State would be precluded from appealing the interlocutory order to this Court, yet concluded that it had jurisdiction to consider the State's appeal. The panel relied on Berg v. Berg, 228 Md.App. 266 (2016), in which we are purported to have "advocated for a broad interpretation of Art. IV, § 22, ultimately holding that a Petitioner could properly take an in banc appeal from a post-trial trial motion." The panel explained:

In the instant case, this Panel believes that the case at hand is an extraordinary instance in which the legislature failed to address the ability of the State to take an in banc [sic] from a[n] evidentiary determination amounting to both an abuse of discretion of the trial court and an error of law. As previously stated, the State cannot proceed to the Court of Special Appeals, nor can the State take the normal route of an in banc appeal as delineated in Haberlin, because the situation does not fall within the constraints of § 12-301 & 12-302. In this case, however, the Panel concludes that the language of Art. IV, § 22 of the Maryland Constitution, when read in conjunction with Md. Rules 4-353 and 2-551 and in light of the dicta included within Berg, shows the intention of the legislature to provide an avenue of review for situations akin to the case at hand. As such, the Panel must look to the Maryland Constitution for guidance in the procedural manner in which this matter is to advance.

(Emphasis added; italics in original).

         On the merits, the in banc panel concluded that the trial court abused its discretion by conducting a Frye-Reed hearing and excluding the drive test evidence. The panel also concluded that the State's witnesses, Special Agent Fennern and Mr. Willingham-as well ...

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