Wednesday, March 2, 2016
Maryland Murder Reversal Involves Pings & State's Failure to Turn Over Cell Phone/Tower Instructions
Last week I did a post about the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), which "require[d] the prosecution to offer expert testimony to explain the functions of cell phone towers, derivative tracking, and the techniques of locating and/or plotting the origins of cell phone calls using cell phone records." It turns out that the Court of Special Appeals of Maryland isn't the only court to reach this conclusion. Instead, the Court of Appeals of Maryland reached the same conclusion in State v. Payne, 104 A.3d 142 (Md. 2014), a case that also involved the State failing to properly turn over cell phone/tower instructions to the defense.
In Payne, Joseph William Payne and Jason Bond were convicted in a joint trial of first degree felony murder and kidnapping, along with the use of a handgun in the commission of a felony.
These convictions were based, in part, on the testimony of Detective Brian Edwards of the Baltimore County Police Department. Detective Edwards testified, without having been qualified as an expert witness under Maryland Rule 5-702, that by interpreting Payne's and Bond's cell phone records subpoenaed from Sprint Nextel for the period from August 26 to August 27, 2007, he was able to determine the location of cell phone towers through which particular calls were routed and to plot the locations of those towers on a map in relation to the crime scene. The attorneys for Payne and Bond objected to Detective Edwards's testimony arguing, inter alia, that he should have been qualified as an expert. The trial judge overruled their objections and opined that Detective Edwards's testimony only related facts that could be independently verified from the phone records.
The Court of Appeals of Maryland disagreed, noting that
Detective Edwards...testified that he could determine the call time, phone number called, whether the call was incoming or outgoing and the cell tower through which the cell phone communicated, based on the complete records he had received from Sprint Nextel. When Payne's counsel objected to the Detective's testimony on the ground that Detective Edwards needed to be qualified as an expert in order to interpret the data, the State responded that the actual records contained step-by-step instructions as to the use of the records, although neither the actual records nor the instructions were introduced into evidence.
Payne claimed in his brief that "the instructions were not provided in discovery," but it's unclear whether the instructions were never provided or provided but attached to a document different from the State's trial exhibit. According to the court,
Detective Edwards later clarified, towards the end of his testimony, that the instructions were not part of the phone records, but were something he produced from another record:
[STATE'S ATTORNEY]: This is included as part of the cell records.
[DETECTIVE EDWARDS]: That is not—this is something I produced from another record.
This misleading or non-disclosure of these instructions likely would have been enough in and of itself to grant the defendants a new trial, but the Court of Appeals of Maryland didn't even need to reach this issue. According to the court,
Once Detective Edwards had culled the records, he further relied on his knowledge and experience to understand the significance of a “LAC ID” and “Cell ID” and how they related to identifying a particular cell tower amongst a cellular provider's records. Detective Edwards's testimony was that of an expert, because Call Detail Record entries are not entries typical of a cell phone bill where a juror could “rely upon his or her personal experience” to understand their meaning....
Detective Edwards needed to be qualified as an expert in order to also opine regarding the Menlo Drive and Balmoral Towers cell towers. Using the data he derived from his experience and expertise, Detective Edwards urged that he had determined the location of the cell towers through which Payne's and Bond's cell phone connected on the night of the murder and their location relative to the crime scene, which only an expert could derive, based upon the fact that a cell phone may connect to several towers during a call which may not be recorded.