Friday, July 17, 2015

The Hotel, Rape and Hearsay

This post examines a recent opinion from the Court of Special Appeals of Maryland:  Baker v. State, 2015 WL 4081297 (2015). The court begins the opinion by explaining how the case arose:
On November 8, 2013, Michael Edward Baker, appellant, was arrested and charged with second degree rape, second degree sex offense, fourth degree sex offense, second degree assault, and impersonating a police officer. [Baker] subsequently was convicted, in the Circuit Court for Cecil County, of each offense, and the court sentenced him to a prison term of ten years.
Baker v. State, supra.  In a footnote, the Court of Special Appeals notes that the trial judge sentenced Baker
as follows: ten years for the second degree rape conviction; ten years, consecutive, all suspended, for the second degree sex offense conviction; six months, consecutive, all suspended, for the impersonating a police officer conviction. The remaining convictions were merged for sentencing purposes.
Baker v. State, supra. 
Baker raised three issues in his appeal:
1.     Did the circuit court err in admitting call records obtained from appellant's phone service provider and expert testimony relating to the records?2.     Did the circuit court err in failing to exclude appellant's statement to the police?3.     Did the prosecutor's closing argument constitute plain error?
Baker v. State, supra.  The Court of Special Appeals only addressed the first issue, for reasons that are explained below.
It began its analysis of Baker’s arguments on appeal by explaining how, and why, the prosecution arose:
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,, 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 [Baker], seeking an encounter with her. She told [Baker] where to meet her, and he came to her hotel room between 7:00 and 9:00 p.m.[Baker] stated that he wanted to engage in oral and vaginal sex without a condom. A.O. told him that she did not do that. [Baker] 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.’[Baker] 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, [he] 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 [Baker] left, A.O. was `an emotional wreck,’ and she told several girls that she worked with that she had been raped.At some point in the week following the rape, [Baker] 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 [Baker’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.
Baker v. State, supra.  In a footnote, the court says it is using the victim’s initials, rather than her name, to “protect her privacy.” Baker v. State, supra. 
The opinion goes on to explain that in October of 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 [Baker] 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 [Baker’s] number on her phone and described how [he] raped her. Trooper Flaugher later showed her a photo array, and A.O. identified a photograph of [Baker] as the man who raped her. She also identified [Baker] in court.
Baker v. State, supra.  You can, if you are interested, find a photo of Baker and news stories that provide more details on the crime in the news stories you can find here and here.
That brings us to Baker’s challenging the trial judge’s admitting the call records into evidence at his trial.  Baker v. State, supra.  The Court of Special Appeals began its analysis of his argument by noting that
Trooper Flaugher testified that he obtained a number from A.O.'s cell phone that she identified as the number of the man who raped her. He further testified that, based on records he obtained from AT & T, he identified that number as belonging to [Baker]. The call records reflected that, on the evening of the rape, there were several calls from the number he identified with [Baker] to A.O.'s phone number.
Baker v. State, supra.  On appeal, Baker argued that “the circuit court erred in admitting the `records connecting [his] cell phone with A.O.'s phone.’” Baker v. State, supra. 
The Court of Special Appeals began its analysis of Baker’s argument by explaining that
[o]n October 15, 2013, the circuit court issued an order directing `AT&T/Cingular’ to produce `certified copies of subscriber information, C.D.R. (call detail records), incoming and outgoing text message phone numbers, and cell tower locations/records . . . from July 17, 2013 to August 30, 2013’ for the cell phone number that A.O. identified as belonging to the man who raped her. The State's Attorney's Office faxed the order to `AT&T/Cingular Wireless.’AT&T responded with a cover letter stating: `All available requested information is enclosed,’ along with the call records directed to be provided by the circuit court's order. The logs indicate that the phone number was owned by `Michael E. Baker,’ and they showed the calls that the phone made, along with the cell phone towers from which each call `pinged’ to connect to the call.The State attempted to admit into evidence the logs of the calls made from [Baker’s] phone. The prosecution began by asking Trooper Flaugher whether he obtained a phone number from A.O. related to her rape, and when he indicated that he had done so, the prosecutor asked what, if anything, Trooper Flaugher did with that number. [Baker’s] counsel objected, and a bench conference ensued. [Baker’s] counsel argued that the State was trying to establish that the number Trooper Flaugher got from A.O. was [Baker’s] number, but it had `no witness from AT&T to enter [the] records into evidence,’ noting that Trooper Flaugher was `not the custodian of records for AT&T,’ and the records were not certified.When the court indicated that it was inclined to sustain the objection, the prosecutor responded that Trooper Flaugher was an expert who relied on the records in the course of his investigation, and the records were admissible as the basis for his expert testimony, stating that, `even if the document is not itself admitted into evidence, the facts contained within it can be presented in trial as evidence.’ [Baker’s] counsel responded that the State had not named any experts prior to trial. The prosecutor did not dispute that assertion, but he stated that he had given [Baker’s] counsel `the courtesy of bringing him in, sitting him down with [Trooper Flaugher], having [Trooper Flaugher] . . . go through these records, explain to [Baker’s counsel] what they meant and what the conclusions were.’ The prosecutor asserted that [Baker’s] counsel knew `everything this witness is going to testify about.’
Baker v. State, supra. 
The court then goes on to explain that Baker’s lawyer said
he believed Trooper Flaugher was going to use the records to demonstrate that [Baker’s] cell phone was in a certain area because it pinged certain cell phone towers. He argued that Trooper Flaugher should not be permitted to give such expert testimony because he was not named as an expert, and therefore, the defense had not obtained a `corresponding expert’ on this issue. Accordingly, he asserted, the defense would be prejudiced by any testimony regarding the location of calls based on cell tower pings.The prosecutor argued that, if the court determined the State should be sanctioned for not disclosing Trooper Flaugher as an expert witness, that sanction should not include disqualification of Trooper Flaugher as a witness because [Baker’s] counsel had been informed of the testimony that Trooper Flaugher was going to give.
Baker v. State, supra.  The Court of Special Appeals goes on to explain that the trial
court ruled that Trooper Flaugher would be permitted to testify `about calls made but not locations,’ stating
`that is what the defense did not expect as far as his expertise and indicated that he would have called somebody from AT & T or somebody who could oppose the pings situation. So the [c]ourt will let Trooper Flaugher testify as to the limited issues of calls made back and forth. [Baker’s counsel] indicated he knew that would occur but not the locations.’
Baker v. State, supra. 
The court goes on to explain that, after the trial judge issued his/her
ruling, [Baker’s]counsel objected, expressing his continued opposition to Trooper Flaugher's testimony:`Your Honor, but if he is going to testify to calls made, he wouldn't be expressing any kind of expert opinion so he wouldn't be able to testify as to the hearsay of when calls were made, because that information, the business records exception to that would have to come from a qualified witness who established that they were made for that.’He further stated that evidence `has to be authenticated. In a case of this nature where he's talking about a third party's business records, any reference to that at all has to come in by a custodian. . . . So there's no way the [call records] come in.’
Baker v. State, supra. 
The Court of Special Appeals then explained that the trial judge rejected the argument made by Baker’s lawyer, explaining that
`I find he's an expert with regard to the cell phone issue. What I find is that you had a surprise in not knowing that he was going to testify as to the location. You said you knew that he was going to testify as to the calls. I find that he's an expert in that and can testify.’As noted, Trooper Flaugher testified that the phone number that A .O. identified as the number of the man who raped her belonged to [Baker]. He further testified that the call records showed that there were several calls to A.O.'s phone number from [Baker’s] phone on the night A.O. was raped. The call records were admitted into evidence after Trooper Flaugher's testimony.
Baker v. State, supra. 
In his appeal, Baker argued that the trial judge erred in admitting the call records 
connecting his phone with A.O.'s phone. In that regard, he contends that the phone records were inadmissible hearsay. He asserts that the court erred in admitting the records on the ground that they served as the basis for Trooper Flaugher's expert opinion for three reasons: (1) Trooper Flaugher did not give an expert opinion; (2) the records were not trustworthy enough to form the basis for an expert opinion; and (3) Trooper Flaugher `should not have been qualified as an expert because he was not disclosed as one before trial.’
Baker v. State, supra. 
The prosecution responded by arguing that the trial court
properly exercised its discretion in admitting the call records because they were not hearsay, and `[a]s such, the only prerequisite for admission of the call records was their authenticity, which was established.’ Alternatively, it argues that, even if the AT&T records were hearsay, the `evidence would support a holding that the records were nevertheless admissible under the business records exception to the hearsay rule. Accordingly, the State contends that “the trial court properly exercised its discretion to admit cell phone records showing calls from [appellant] to the victim.’
Baker v. State, supra. 
Baker then argued, in response, that the Court of Special Appeals
should not accept the State's argument that computer-generated documents are not hearsay. Second, he asserts that, even if this Court were to adopt this position, there was no evidence here that the phone records were `”produced by a machine, not a human declarant,”’ as the State contends.”Third, he contends that, with respect to the evidence that the number that called A.O.'s phone belonged to [Baker], `[i]t is difficult to conceive how a record that connects a number to an individual's name could be completely computer generated,’ noting that the `computer had to get Baker's name from somewhere to put it on the record and connect it to the cell phone number.’ Fourth, he argues that the argument that the records were admissible under the business records exception to the hearsay rule was not raised below, and `this Court should not find for the first time on appeal that the records were authenticated business records.’ Moreover, he asserts that the `trial court was not going to admit the records at all until the State argued that they were the basis for an expert's opinion. Thus, the only indication from below is that the court did not find them to be circumstantially authenticated.’
Baker v. State, supra. 
The court began its analysis of the arguments made by both sides by explaining that
[b]ecause the issue as presented on appeal is whether the call records were inadmissible hearsay, we begin our analysis with the definition of hearsay. Pursuant to [Maryland Rule of Evidence] 5–801(c), hearsay is `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.’ [Maryland Rule of Evidence] 5–801(c).Here, there is no dispute that the call records were offered for the truth of the matter asserted, i.e., that [Baker] called A.O. Rather, the issue is whether the call records constituted a `statement.’ In that regard, pursuant to this rule, evidence does not constitute a `statement’ unless it is made by a declarant, which is defined as `a person who makes a statement.’ [Maryland Rule of Evidence] 5–801(b) (emphasis added).
Baker v. State, supra. 
It then noted that while “Maryland has not specifically addressed whether computer records generally, or call records specifically, constitute hearsay”, courts from other states have done so.  Baker v. State, supra.  It explained that in State v. Austin, 146 So.3d 716 (Louisiana Court of Appeals 2014), police officers
obtained Austin's cell phone records from AT&T, and these records placed Austin in the area of the crime at the time of the offense. The Court of Appeal of Louisiana rejected Austin's claim that the cell phone records were hearsay, stating that the telephone records were `”generated solely by the electrical and mechanical operations of the computer and telephone equipment, and [are] not dependent upon the observations and reporting of a human declarant.”’ State v. Austin, supra (quoting State v. Austin, 113 So.3d 306 (Louisiana Court of Appeals 2013)). 
Baker v. State, supra. 
The Court of Special Appeals went on to explain that,
[t]o be sure, the view that computer-generated records in general, and phone records in particular, are not hearsay is not shared by all courts. See, e.g., Fry v. State, 885 N.E.2d 742 (Indiana Court of Appeals 2008) (cell phone records for telephone company are hearsay). . . . We are persuaded, however, that the better reasoned view is that computer-generated records generally do not constitute hearsay.
When records are entirely self-generated by the internal operations of the computer, they do not implicate the hearsay rule because they do not constitute a statement of a `person.’ In that situation, the admissibility of such data `”should be determined on the basis of the reliability and accuracy of the process” used to create and obtain the data.’ State v. Reynolds, 456 S.W.3d 101 (Missouri Court of Appeals 2015) (quoting State v. Dunn, 7 S.W.3d 427 (Missouri Court of Appeals 1999).  
Baker v. State, supra. 
It then applied the analyses outlined above to the facts in this case, explaining that
we agree with the State that, to the extent that the call records were computer-generated, they do not constitute hearsay. The problem in this case, as [Baker] points out, is that there was no evidence presented regarding how the call records were produced. Although it may be true that the AT&T records tracing calls from one number to another were computer-generated, . . ., the State here did not produce any evidence to this effect. Without such evidence, this Court is unable to affirm the admission of the call logs on the ground that they were computer-generated evidence that did not qualify as hearsay.Moreover, another portion of the records admitted into evidence likely was not computer-generated. The call records showed, and Trooper Flaugher testified based on these records, that the number that called the victim's phone the night of the rape belonged to [Baker]. Again, there was no evidence how this data was generated, but it is unlikely that it was generated solely by the internal operations of the computer itself, and more likely that it was data entered by a person.
Baker v. State, supra.            
Finally, the Court of Special Appeals explained that other courts
have made a distinction between computer-generated records, where the data is generated by the internal operations of the computer itself, and computer-stored records, which reflect human input. In the latter situation, courts have found that the computer records constitute hearsay. See, e.g., in U.S. v. Cestnik, 36 F.3d 904 (U.S. Court of Appeals for the 10th Circuit 1994) (computer money transfer records were hearsay where each transfer record was created by an employee of the money transfer company directly entering the information into a computer) . . . ; State v. Gojcaj, 151 Conn. App. 183, 92 A.3d 1056 (Connecticut Appellate Court 2014 (`Computer printouts that contain stored human statements are hearsay when introduced for the truth of the matter asserted in those statements’). . . ;  Black v. State, 358 S.W.3d 823, (Texas Court of Appeals 2012) (text messages were computer-stored information `produced by human thought and action, and therefore they were hearsay).
Baker v. State, supra. 
So the court held that, in this case,
as indicated, although there was no evidence adduced on this issue, it is likely that the assertion in the computer records that the phone number that called the victim was [Baker’s] number was an assertion made by a person. Accordingly, we disagree with the State that we can affirm the admission of this evidence on the ground that it did not constitute hearsay.
Baker v. State, supra. 
It also held that,
in the absence of testimony from the custodian of records, or any certification, the circuit court erred in admitting the call records. We note, however, that if the case is tried again and the proper foundation is laid, the records may be admissible.

Baker v. State, supra.  It therefore reversed Baker’s conviction and remanded the case “for further proceedings”, i.e., for Cecil County prosecutors to try Baker again, if they decide that is appropriate.  Baker v. State, supra.  
And if you were wondering why Baker can be retried even though he was tried once and convicted, because, as this site explains,
[g]enerally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, the assumption being made in the first case on the subject that, by appealing, a defendant has `waived'' his objection to further prosecution by challenging the original conviction. 

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