Recent Court of Special Appeals of Maryland Case Deals with Authentication & Cell Phone/Tower Issues

In today's post, I will talk about the recent opinion of the Court of Special Appeals of Maryland in Baker v. State, 117 A.3d 676 (Md. 2015). The case discusses a couple of the topics we've been discussing on the Undisclosed Podcast: cell phone/tower evidence and authentication.

In Baker, 

On July 18, 2013, the victim, A.O. was "prostituting" at the Knights Inn on Belle Road in Cecil County. She testified that the person she worked for, her former boyfriend, set up an advertisement on a website, backpage.com, which listed a "Google account number," "a separate [phone] number that rings to your personal phone."

Sometime after dark, she received a call from a man, whom she later identified as appellant, seeking an encounter with her.

During that encounter, the

Appellant stated that he wanted to engage in oral and vaginal sex without a condom. A.O. told him that she did not do that. Appellant pulled out what appeared to be a police badge and told A.O. that he was a police officer. He said that if she did not do what he told her to do, he was going to arrest her, and he "made [her] write down [her] information like a cop would do." He also informed her that "his supervisor was in a nearby room."

Appellant then physically struck A.O. and forced her to engage in oral and vaginal sex without the use of a condom. At one point during the encounter, appellant appeared to receive a phone call, and he responded to the person on the phone: "Yeah, I'm with her right now, she's scared, but there's not really nothing here I could charge her for, so we will wrap things up.” After appellant left, A.O. was "an  emotional wreck," and she told several girls that she worked with that she had been raped.

Thereafter,

At some point in the week following the rape, appellant contacted A.O. again. He told her: "Hey, it's Mike, the cop from the other night, I just want to let you know that don't be out there tonight because they are doing stings again," and he stated that he just wanted to warn her. After this call, A.O. put appellant's phone number in her cell phone under the contact name: "Do not answer." The day after the second phone call, A.O.'s boyfriend arranged for her to meet with a police officer, but A.O. was
still an emotional wreck," and she refused to talk to the officer.

In October 2013, Trooper First Class Alan Flaugher approached A.O. to question her about the rape. Although A.O. was hesitant to talk to Trooper Flaugher because she believed appellant was a police officer, and she "didn't want to talk to another cop about what a cop did to" her, she eventually spoke with Trooper Flaugher. She showed Trooper Flaugher appellant's number on her phone and described how appellant raped her. Trooper Flaugher later showed her a photo array, and A.O. identified a photograph of appellant as the man who raped her. She also identified appellant in court.

At trial, the prosecution called Flaugher to authenticate and discuss call logs, including cell tower pings, for the phone number A.O. ascribed to her rapist. The trial court allowed Flaugher to authenticate the call log and testify regarding the calls made and received; it did not, however, allow Flaugher to testify about the pings.

After he was convicted, the appellant appealed, claiming, inter alia, that the call log was hearsay/ improperly authenticated and that the error in admitting it was prejudicial:

The phone records, and Flaugher's testimony based on them, were incredibly prejudicial to Mr. Baker, and admitting them was not harmless error. Aside from A.O.'s identification, no other evidence connected Mr. Baker to her, and the State relied heavily on the records to link the two of them on the night of the incident. The prosecutor opened his closing statement by saying, "July 18th, 2013, at 8:45 p.m. Michael Baker dialed 1-4-4-3-5-0-2-1-5-9, A[]O[]'s Google number." (T2. 238) He went on to argue that Mr. Baker dialed the number several times that night and had no explanation for it. (T2. 238-39) The prosecutor then used the phone records several times during closing to argue that they confirmed A.O.'s story and that they undercut Mr. Baker's alibi. (T2. 239-40) He returned to the records again at the end of closing and during rebuttal closing. (T2. 241, 257) The phone records were the centerpiece and recurring theme of the State's argument to the jury. Given the weaknesses of the State's case, and its reliance on the phone records, the erroneous introduction of the evidence of the phone calls severely prejudiced Mr. Baker. This Court cannot find the error harmless beyond a reasonable doubt.

The Court of Special Appeals of Maryland agreed, noting that the call log was hearsay: "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." For the log to be admissible, then, it had to be properly authenticated, i.e, established to be what the prosecution claimed it to be. According to the court, this authentication is typically done by

either (1) calling an employee from the phone company, who testifies regarding the process by which call records are generated, that it is the regular practice of the business to make such records, and that they are regularly kept for business records.

The State, however, followed neither of these methods, causing the court to reverse the appellant's conviction, concluding that,

On the record before us, we hold that, in the absence of testimony from the custodian of records, or any certification, the circuit court erred in admitting the call records.

-CM