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Johnson v. State

Court of Appeals of Maryland

February 21, 2018

Martaz Johnson
State of Maryland

          Argument: September 12, 2017

         Circuit Court for Baltimore City Case Nos. 114094009, 114094010, 114094011, 114094012, 114094013

          Barbera, C. J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.


          MCDONALD, JUDGE.

         A factfinder at a trial applies common sense drawn from shared human experience to the evidence to reach a fair determination of the facts. Some evidence, however, is beyond the common experience of most people. Expert testimony may be necessary for the factfinder to decide the significance of such evidence.

         Expert testimony is often required to explain scientific or technical matters. But expert testimony is not required simply because one can explain a matter scientifically. For example, a jury can be expected to readily understand the significance of testimony that a clock or a thermometer displayed certain numbers without need for an expert to explain the scientific phenomenon that underlies the thermometer or the engineering that powers the clock. But the jury will need an expert to understand the significance of an opinion that two biological samples "match" based upon a statistical analysis involving DNA evidence.

         While common sense does not change, common human experience does. A technical marvel of an earlier time may become the everyday tool of the contemporary person. This case presents the question whether location information from a GPS device is more like numbers read from a clock or thermometer or more like a conclusion reached from the analysis of DNA evidence.

         Petitioner Martaz Johnson, [1] an officer with the Maryland Transit Administration ("MTA") police, was charged with assaulting and raping a young woman shortly after she had been involved in a traffic accident with an MTA bus. According to the young woman, Mr. Johnson had responded to the scene of that accident in his official capacity and drove her home, where the offense occurred. Among the equipment that Mr. Johnson carried that evening as part of his job was a mobile GPS device, which allowed the MTA to keep track of the locations of its officers.

         At the trial in the Circuit Court for Baltimore City, the State introduced GPS data from Mr. Johnson's device that matched the itinerary given by the woman in her testimony at trial. That evidence was introduced by a custodian of records of the MTA police.

         While Mr. Johnson's defense counsel did not appear to dispute that Mr. Johnson had been present at the locations indicated in the GPS data, he objected to the Circuit Court's decision to admit that evidence on several bases. In this appeal, Mr. Johnson argues that the State should have presented expert foundation testimony concerning GPS devices as a prerequisite to the admission of such evidence.

         The Court of Special Appeals, relying on one of its prior decisions, [2] held that a lay juror could understand the significance of GPS data without expert help and that it was not necessary for the State to present expert testimony on GPS devices and data. We agree with the Court of Special Appeals.



         To provide the context in which the legal issues before us arise, we summarize the key testimony at trial and the procedural path of this case.

         The Accident and its Immediate Aftermath

         The victim of the alleged offenses was a 28-year-old woman whom we shall refer to as Ms. K.[3] After going out with a female friend on the evening of March 12, 2014, for dinner, drinks, and dancing, Ms. K. was driving home in the early morning hours when her car was struck by an MTA bus at the intersection of Central Avenue and Monument Street in Baltimore City.

         MTA police officers responded to the scene of the accident.[4] Mr. Johnson was one of those officers. Ms. K. testified that Mr. Johnson told her she should not be driving any more that evening; she agreed to refrain from doing so because she had been drinking. According to Ms. K., Mr. Johnson instructed her to sit in the back of his police car and said that he needed to "release" her to someone or else he would have to take her "downtown, " which Ms. K. interpreted to mean jail.

         Ms. K. decided to contact the friend she had been out with, who lived nearby, in the hope that the friend would retrieve her and her car. However, Ms. K. was unsuccessful in multiple attempts to reach her friend by phone. Mr. Johnson then drove Ms. K. to her friend's home and Ms. K. attempted to call the friend from the police car, again without success. According to Ms. K., Mr. Johnson would not allow her to leave the car to knock on the door.

         Officer Johnson Takes Ms. K. Home and Remains There

         Ms. K. testified that, after failing to rouse her friend, she sat crying in the back of the police car. She said that Mr. Johnson, instead of taking her "downtown" as he had originally indicated, then drove her to her own home at 708 North Duncan Street in Baltimore City. According to Ms. K., while they were en route, Mr. Johnson asked her "what are you going to do to make this up."

         Ms. K. testified that, as she entered her home, Mr. Johnson followed her in without being invited to do so. According to Ms. K., Mr. Johnson asked her whether anyone else lived there, and she replied that she lived alone. He then used his flashlight to check whether there was anyone else in the house.

         According to Ms. K., Mr. Johnson then assaulted and raped her. Afterwards, she testified, she tried to take a picture of Mr. Johnson with her cell phone without success. Mr. Johnson took the phone from her, made her unlock it, and scrolled through her pictures. He then left the house.

         Shortly after Mr. Johnson left her home, Ms. K. called 9-1-1 and reported that she had been raped by a police officer. An ambulance transported her to a hospital where she underwent a rape kit examination. At that time Ms. K. was reluctant to be interviewed by Baltimore City police detectives because she thought that Mr. Johnson was associated with the Baltimore City police. She spoke with an attorney acquaintance later that day who encouraged her to talk to the detectives. When she was subsequently interviewed by the detectives, she told them that Mr. Johnson was the officer who had assaulted her.

         Mr. Johnson later submitted to forensic testing, which revealed Ms. K.'s skin cells on the shaft of his penis.[5]

         The Charges

         Mr. Johnson was charged in the Circuit Court for Baltimore City with first and second-degree rape, third and fourth-degree sex offenses, first-degree assault, two counts of second-degree assault, first, third, and fourth-degree burglary, reckless endangerment, and misconduct in office.

         The Trial

         At trial, the State presented the testimony of Ms. K., who recounted the events as summarized above and made an in-court identification of Mr. Johnson as her assailant. The State sought to corroborate Ms. K.'s account through other testimony and evidence. In particular, it called the MTA police officer who had initially responded to the accident before Mr. Johnson arrived and who left the scene while Mr. Johnson was talking with Ms. K. That officer testified that an MTA police protocol required an officer who planned to transport a civilian to report that activity to radio dispatch. He testified that the radio log for that evening did not reveal such a call by Mr. Johnson.

         The Baltimore City police detectives who investigated the offense also testified about their interview of Ms. K. and the gathering of forensic evidence. The forensic nurse who had examined Mr. Johnson, the police DNA technician who noted skin cells on the swabs taken from Mr. Johnson's genitals, and the DNA analyst who matched the DNA of those skin cells to Ms. K.'s DNA also testified. The attorney acquaintance of Ms. K. testified that he had found a "frantic" message on his phone from Ms. K. the morning of March 13 in which she stated that she had been raped by a police officer and that he had counseled her to talk to the detectives.

         The State also introduced evidence from a GPS tracking device[6] known as a "Pocket Cop" that Mr. Johnson had carried that night. MTA police officers carry Pocket Cops primarily for officer safety. A Pocket Cop records GPS data concerning its location and movements. Police supervisors can access the data from a particular officer's device through a program called "Field Force Manager." That program generates a report that shows the location of a Pocket Cop at specific times and the duration of time spent at each location. As a result, the MTA can determine where its officers are, and have been, at any particular moment.

         An MTA police supervisor who served as its custodian of records testified that the data derived from the device carried by Mr. Johnson on March 13, 2014, showed that he had spent 14 minutes that night in the vicinity of the address of Ms. K.'s friend and 37 minutes in the vicinity of Ms. K.'s residence. The evidence and arguments concerning the admissibility of that data are described in greater detail in Part II.A of this opinion.

         The MTA police supervisor also reiterated that it would be contrary to department policy for an officer to transport a civilian in the officer's police car without calling a supervisor over the radio and obtaining permission. He testified that the radio log for the evening did not show a call by Mr. Johnson to his supervisor for that purpose.

         The defense did not call any witnesses and Mr. Johnson exercised his right not to testify.

         Verdict and Appeal

         The Circuit Court granted a judgment of acquittal on charges of fourth-degree burglary, first-degree assault, third-degree sex offense, and reckless endangerment. The jury acquitted Mr. Johnson of first-degree and third-degree burglary, as well as first-degree rape. It could not reach a verdict on the charges of second-degree rape and fourth-degree sex offense. The jury convicted Mr. Johnson of misconduct in office and two counts of second-degree assault.

         Mr. Johnson filed a timely appeal to the Court of Special Appeals, where he raised several legal issues, including the admissibility of the GPS evidence. The Court of Special Appeals affirmed the convictions in an unreported opinion on December 16, 2016.

         Mr. Johnson then petitioned this Court for a writ of certiorari on the question of whether the GPS data was properly admitted without expert testimony. The State submitted a conditional cross-petition on the question whether Mr. Johnson had preserved that issue in the Circuit Court. We granted both petitions.



         A. The GPS Evidence at Trial

         The legal issues in this appeal concern whether expert testimony was necessary in order to admit GPS data from the Pocket Cop device carried by Mr. Johnson on March 13, 2014 and whether the defense adequately preserved an objection to that evidence on that basis. Accordingly, it is useful to recount, in some detail, how that evidence was elicited at trial and how the defense objections to it were framed.

         The defense made a motion in limine at the beginning of the trial to exclude various items of the State's evidence, but the GPS data from Mr. Johnson's Pocket Cop was not among those items. Indeed, the theory of the defense at trial appeared to be consistent with the GPS data derived from the Pocket Cop device. In his opening statement to the jury, defense counsel conceded that Mr. Johnson drove Ms. K. first to her friend's house and then to her own house. Defense counsel also told the jury that Mr. Johnson had entered Ms. K.'s house for a period of time, stated that Ms. K. made an "advance at" Mr. Johnson while they were inside the house, and denied that Mr. Johnson raped her during that visit.[7]

         When Ms. K. testified as the State's first witness, the defense cross-examination of her was consistent with the approach taken in its opening statement. Defense counsel had Ms. K. repeat much of the same testimony that she gave on direct examination, but suggested that she was attracted to Mr. Johnson. The theory of the defense appeared to be that Mr. Johnson had responded to the accident in his official capacity and that he had taken Ms. K. home in that capacity as well, but that he had not initiated or consummated any assault of Ms. K.

         Testimony concerning the Pocket Cop device was first elicited at the trial during the defense cross-examination of the MTA police officer who had initially responded to the accident scene before Mr. Johnson arrived. Defense counsel adduced testimony from that officer concerning the function of the Pocket Cop device. The thrust of the defense cross-examination was that, even though an MTA radio log indicated that Mr. Johnson had failed to call in his location when he was transporting Ms. K (as required by the MTA police protocol), Mr. Johnson's supervisors would have known where he was because he was carrying a GPS device.

         The State later introduced some details concerning the data recorded by Mr. Johnson's Pocket Cop that evening. Sergeant William Schauman, an executive officer at MTA police headquarters, testified that Mr. Johnson was assigned to cover the area of the bus accident on the night of March 12-13, 2014. Sergeant Schauman explained the function of the Pocket Cop device and described a report summarizing GPS data from Mr. Johnson's Pocket Cop for the period from midnight to noon on March 13, 2014. The State sought to introduce the GPS report through Sergeant Schauman.

         Defense counsel objected to admission of the report. At a bench conference, defense counsel elaborated that his objection was based on the fact that Sergeant Schauman had not personally investigated the matter and that the document was not itself maintained in the ordinary course of business, but had been generated from the computer records for purposes of the case. Defense counsel also argued that the report was incomplete in that it contained an unexplained "gap" of time.[8] He contended that the report should be introduced only by the person who generated it. These objections appeared to go to authentication of the report and an assertion that the State had not established a sufficient foundation for the report itself to come within the business record exception to the hearsay rule.[9] The Circuit Court initially reserved its decision on these objections and allowed the State to ask additional questions of Sergeant Schauman to lay a foundation for admission of the document.

         The State then resumed questioning Sergeant to lay a more complete foundation for admitting the GPS report under the business record exception to the hearsay rule. Sergeant Schauman testified that it was standard operating procedure for MTA officers to carry the device so that their movements could be tracked while they are on duty. The State again sought to admit the GPS report into evidence. The defense objected again and a second bench conference ensued.

         The Circuit Court observed that, although the witness had not used the "magic words, " he had essentially testified that it was the ordinary course of business for the MTA to track the locations of its officers by means of the Pocket Cop. Defense counsel then complained that the record appeared to be incomplete and that the witness would not be able to speak to the "authenticity or veracity" of the record.

         In the midst of this discussion as to whether the State had laid a sufficient foundation to satisfy the defense objections as to authenticity, hearsay, and the completeness of the GPS report, defense counsel asserted that "this gentleman is now being offered as a quasi- expert to lay a foundation for the admission of technical information." The discussion, however, then returned to whether the GPS data was generated in the ordinary course of business and, after the Circuit Court reiterated its finding that it was, the defense did not further pursue its objection that Sergeant Schauman was being asked to provide the necessary foundation as a "quasi-expert."

         Defense counsel then questioned whether the entire document would come into evidence or just specific references in the GPS report. The Circuit Court agreed that some references in the report were not relevant, and the State volunteered to simply ask Sergeant Schauman about specific entries in the report that were relevant to the trial. The Circuit Court observed that defense counsel could attack any defects in the GPS report through cross-examination.

         In response to questions from the prosecutor, Sergeant Schauman then read two entries from the report to the jury. He stated that the first entry indicated that, on March 13, 2014, beginning at 3:55 a.m., Mr. Johnson was at 1224 Ashland Avenue - a location near the home of Ms. K's friend - for 14 minutes. He testified that the second entry indicated that Mr. Johnson was at 710 North Duncan Street - a building next to Ms. K.'s home - for 37 minutes beginning at 4:10 a.m.

         On cross-examination, defense counsel asked Sergeant Schauman various questions about the calibration and accuracy of the GPS function on the Pocket Cop. Sergeant Schauman responded that he was "not the technical person" for the agency. Defense counsel also obtained admissions from Sergeant Schauman that he could not tell from the GPS report whether Mr. Johnson had entered a building at either of the two locations mentioned in his direct testimony. Defense counsel also questioned Sergeant Schauman about other entries on the GPS report that had not been covered on direct examination. The Circuit Court later confirmed that it had not admitted the entire report.

         During the discussion of Sergeant Schauman's testimony, the State suggested that it might call another officer more knowledgeable about the technical aspects of GPS, but apparently elected not to do so. The defense never moved to strike the testimony derived from the GPS report - perhaps unsurprising as that testimony did not contradict the defense theory of the case.[10]

         In closing arguments, the prosecution never mentioned the GPS data. The defense alluded to it only (1) to reiterate that Mr. Johnson could not have gone "off the grid" from his supervisors while he was on duty because he was being tracked by a GPS device and (2) to point out that the device did not precisely indicate whether Mr. Johnson was inside Ms. K.'s house or what he was doing when it showed him in the vicinity of her house.

         B. Preservation

         As an initial matter, the State argues that Mr. Johnson did not adequately preserve for appeal his contention that the State was required to present expert testimony explaining the operation of GPS devices as a prerequisite to the admission of GPS data. "Ordinarily, the appellate court will not decide any … issue [other than jurisdiction] unless it plainly appears by the record to have been raised in or decided by the trial court …." Maryland Rule 8-131(a).

         It is true, as the State asserts, that the defense objection to Sergeant Schauman's testimony concerning the GPS report appeared, at least initially, to be that the State had not laid an adequate foundation relating to authentication, hearsay, and completeness of the report - objections quite distinct from whether expert testimony is necessary to lay a foundation for admission.[11] In particular, much of the discussion focused on whether the report satisfied the business records exception to the hearsay rule. For example, at the beginning of each bench conference, defense counsel argued that the report was not kept in the ordinary course of ...

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