Boston v. State

Eyler, Deborah S., J. A jury in the Circuit Court for Baltimore County convicted Jatwan Derrick Boston of attempted first degree murder, armed robbery, first degree burglary, use of a firearm in a crime of violence, and illegal possession of a regulated firearm. The court imposed concurrent sentences of life in prison for attempted murder, five years for illegal possession of a firearm, and twenty years for the remaining crimes. On appeal, Boston presents three questions, which we have reordered and slightly rephrased: I. Did the trial court err by admitting into evidence a recording of a telephone conversation between Boston and his brother?

II

Did the trial court err by admitting into evidence a gun seized during Boston's arrest?

III

Did the trial court err by admitting into evidence a jacket that police saw at the crime scene but did not take into custody until days later? We answer all three questions in the negative and shall affirm the judgments. FACTS AND PROCEEDINGS At trial, the following facts were adduced. 1 At around 10:00 p.m. on November 29, 2014, three masked men burst into Steven Matthews's house in Catonsville and attacked him. The assailants kicked in Matthews's front door, pointed guns at him, and tied him up with an exercise band.

They hit him with nearby objects and ransacked his house. Five minutes after the three assailants entered, Boston entered the house as well. He was not wearing a mask, and Matthews recognized him from the neighborhood. Boston took some "petty stuff," like video game consoles, and then approached Matthews, put a gun "five inches" from his head, and pulled the trigger.

The gun did not fire. Boston turned to one of the other men, later identified as David Grant, and said: "We got to kill [Matthews] because he seen my face." Grant, who was standing about six feet away from Matthews, fired his gun at Matthews. Although the bullet struck Matthews in the back of his head, Matthews managed to break free from the exercise band, get up, and go after Grant. As the two were "tussling ... on the ground," Grant fired two more shots at Matthews's head.

Matthews tried to protect his head with his hands, to no avail. Grant got up from the ground, and the four men left with two televisions and the keys to Matthews's BMW X6. Still functional despite the attack, Matthews stayed on the floor, waiting for the assailants to leave. After "a couple of minutes," he walked outside to get help from a neighbor.

He saw Boston, Grant, and a third assailant inside his BMW, seemingly about to drive off. The fourth assailant left in the car the assailants originally arrived in. When Boston saw Matthews, he and the third assailant jumped out of the car and attacked him. The three ended up on the ground, fighting.

Boston called for Grant, who got out of the car with a gun, got close to the fighting men, and shot Matthews in the back of his arm. Matthews kicked the gun out of Grant's hand, but it discharged and the bullet struck the back of Matthews's leg. When Matthews attempted to get up to run away, Grant shot him in the back of the head. Boston, Grant, and the third assailant got back in Matthews's BMW and drove away.

Somehow, Matthews got himself to his next door neighbor's house, and the neighbor called 911. On the 911 tape, Matthews can be heard in the background telling his neighbor that Boston had attacked him. Matthews was taken to a hospital, where he underwent surgery. Following the surgery, Matthews spoke with investigating officers and told them that Boston, along with three other men, had attacked him and burglarized his house.

The officers showed Matthews a photograph of Boston and he confirmed that Boston was one of the attackers. On December 1, 2014, police located Boston in Baltimore City. They surveilled him as he and Grant and an unidentified woman entered a vehicle near the 3400 block of Round Road. The police followed the vehicle and eventually made a traffic stop during which Boston and Grant were arrested.

The police recovered a "Colt .45 caliber handgun" from "the front waistband of ... Boston's sweatpants." They also recovered a ".32 semi-automatic handgun" from where Grant had been sitting in the vehicle immediately before being arrested. We shall include additional facts in our discussion of the issues. DISCUSSION I. The Recorded Telephone Conversation At the times relevant to this case, Jonte Lee, Boston's older brother, was incarcerated at the Baltimore County Detention Center ("Detention Center").

On November 30, 2014, the day after Matthews was attacked, Lee placed a telephone call from the Detention Center to his girlfriend. Before Lee started to speak, an automated recording announced: "This call will be recorded and subject to monitoring at any time." Near the beginning of the conversation, Lee asked his girlfriend to call Boston toward the end of the call. After Lee and his girlfriend had talked for a while, Lee told her to try to call Boston. She then dialed Boston into the call.

The pertinent portions of the recorded call with Boston on the line are as follows: MR. LEE: What's up, dumb ass? [BOSTON]: What's up, dumb ass? MR. LEE: What are you-what you-are you good? [BOSTON]: Yeah, man.

I'm all right. MR. LEE: You sure? I know it ain't nothing you can talk to me about but-you feeling me? [BOSTON]: Yeah.

Everything's (indiscernible) I ain't said nothing (indiscernible). MR. LEE: I'm putting you in my prayers; you heard me? [BOSTON]: Yeah, bro. MR.

LEE: I just wanted to tell you I love you, before-before-before me anything. [BOSTON]: I love you, too, man. MR. LEE: Just in case the n***** don't get back in contact; you feeling me? But I hope you stay (indiscernible); you hear me? [BOSTON]: Yeah. * * * [BOSTON]: Yeah.

I'm going around (indiscernible) tomorrow, for real. MR. LEE: Oh, why, oh, why, oh, why, oh why? Damn, yo. [BOSTON]: I know you heard though.

MR. LEE: Yeah. Mother f-ker [ 2 ] Kim called Keonia (phonetic) and shit. [BOSTON]: Huh? MR.

LEE: Kim called Keonia. [BOSTON]: What about? MR. LEE: This n*****, yo; on, my God, yo. Hello? [BOSTON]: (Indiscernible) lit them.

MR. LEE: Huh? [BOSTON]: He lit. MR. LEE: Huh? [BOSTON]: He lit like wheezing.

MR. LEE: He live? [BOSTON]: He lit. MR. LEE: Lit? [BOSTON]: He light up (indiscernible) he got a light on him.

MR. LEE: Oh. (Pause.) MR. LEE: Damn, yo. [BOSTON]: (Indiscernible).

MR. LEE: (Indiscernible) was it-was it-was it-you feeling me? Does it come out? [BOSTON]: No. MR. LEE: It ain't coming how you want it to? [BOSTON]: No. MR.

LEE: I hope you all right, my n*****. [BOSTON]: They say Shorty got hit a (indiscernible) times, twice in the face, once in the head (indiscernible). MR. LEE: Yeah, I heard. (Pause.) [BOSTON]: I don't know, bro.

MR. LEE: Yeah. I heard. (Pause.) MR.

LEE: That shit crazy. Oh, and that Kim-Kim called Keonia, talking about he saying-saying the name; you feeling me? [BOSTON]: Yeah. He say-you know. (Pause.) MR.

LEE: I just wanted to make sure you was good, my n*****. Yep. [BOSTON]: Yeah. MR. LEE: I'm going to try - [BOSTON]: I'm - MR.

LEE: Huh? [BOSTON]: -(indiscernible) might be out of town for a little bit. MR. LEE: I'm going to try to call you again tomorrow; you hearing me, dummy? [BOSTON]: All right. I'm not sure if she'll remember but I'm going to switch to another-but I'm (indiscernible)- * * * MR.

LEE: Yo, make sure you write me a letter or something real quick, if you can, tonight; you feeling me? [BOSTON]: Huh? MR. LEE: And drop it off. [BOSTON]: Huh? MR.

LEE: Drop it off somewhere or mail it to me or something; you feeling me, so I can hear (indiscernible). [BOSTON]: I'm going to write it and then drop it off at (indiscernible). MR. LEE: All right. So, I can hear from you, my n*****. [BOSTON]: All right.

MR. LEE: I love you. [BOSTON]: I love you, too, bro. MR. LEE: All right.

And keep checking on-keep calling my girl phone, letting her know you all right, n*****, so I ain't got to worry about it. At the outset of trial, before jury selection, Boston's lawyer orally moved in limine to preclude the State from introducing the recorded telephone call between Lee and Boston into evidence. She argued that Boston "did not waive his right to not be recorded" and that the conversation did not specifically mention Matthews or the date on which the attack on Matthews took place and therefore was too vague to be admitted. Finally, she argued that the conversation was "extremely prejudicial" and that its prejudice outweighed its probative value.

The trial court denied the motion. Later, the court granted defense counsel a continuing objection based on these arguments. The trial proceeded and eventually the prosecutor sought to introduce the recorded conversation through Detective Matthew Barnes, the lead detective in the case. Defense counsel objected on the basis of relevance, and the court recognized her continuing objection.

The court denied the motion. The prosecutor played for the jury the very beginning of the recorded call, in which the automated recording was played and Lee asked his girlfriend to add Boston to the call later, and the portion of the recorded call between Lee and Boston. Detective Barnes identified Boston's voice on the call. 3 On appeal, Boston argues that the recording of his telephone conversation with his brother was inadmissible as a matter of law because it was made in violation of the Maryland Wiretapping and Electronic Surveillance Act, Md. Code (1974, 2013 Repl. Vol.), §§ 10-401 et seq. of the Courts and Judicial Proceedings Article ("CJP") ("the Wiretap Act").

He further argues that, in any event, the conversation was not sufficiently linked to the attack on Matthews to be relevant evidence and, if it was, any probative value it had was outweighed by the likelihood that it would cause unfair prejudice. A. Boston maintains that his telephone call with Lee was recorded in violation of the Wiretap Act because he did not consent to its being recorded. Specifically, he was added to the call after the warning that it was being recorded was played, so he did not know the call was being recorded and therefore could not have consented. The State responds that Boston failed to make an adequate showing that the recording was obtained in violation of the Wiretap Act. 4 "Except as otherwise specifically provided in [the Wiretap Act] it is unlawful for any person to ... [w]illfully intercept ... any wire, oral, or electronic communication." CJP § 10-402(a)(1). 5 A telephone conversation is a "wire communication" within the meaning of the Wiretap Act.

Fearnow v. Chesapeake & Potomac Tel. Co. 104 Md. App. 1 , 34-35, 655 A.2d 1 (1995), rev'd on other grounds , 342 Md. 363 , 676 A.2d 65 (1996). 6 The meaning of "intercept" under the Wiretap Act encompasses electronic recording. 7 In addition to proscribing unlawful acts, the Wiretap Act identifies acts that are lawful. As pertinent here, an interception is lawful "where all of the parties to the communication have given prior consent to the interception[.]" CJP § 10-402(c)(3). 8 A communication that is intercepted unlawfully under the Wiretap Act may not be received in evidence at trial. CJP § 10-405(a). 9 See Seal v. State , 447 Md. 64 , 71, 133 A.3d 1162 (2016).

There is no evidence that Boston expressly or implicitly consented to having his telephone call with Lee recorded. See footnote 15, infra . 10 Accordingly, the recording of the telephone call would be an unlawful act under the Wiretap Act if the call was "willfully intercepted" by the Detention Center. CJP § 10-402(a)(1). 11 In Deibler v. State , 365 Md. 185 , 776 A.2d 657 (2001), the Court of Appeals addressed the meaning of "willfully" for purposes of CJP section 10-402(a). There the defendant placed a recording device in the bathroom of his friend's family's house.

After the friend's aunt used the bathroom, took a shower, and dried herself off, she noticed an unfamiliar piece of equipment hidden in the bathroom. As she and the friend's father tried to figure out what it was, the device recorded their conversation. Ultimately, the defendant admitted placing the equipment to record sounds in the bathroom, but maintained that the interception of the conversation between the friend's aunt and his father was not willful, under the Wiretap Act, because he did not know that his conduct was prohibited by the Wiretap Act. The Court reviewed the "bewildering array" of meanings given the word "willful" under federal and Maryland law, and ultimately concluded that the defendant need not have acted with knowledge that he was violating the Wiretap Act to have "willfully intercepted" the conversation in question.

As relevant here, the Court held that for purposes of CJP sections 10-402(a) and 10-405, "an interception that is not otherwise specifically authorized is done willfully if it is done intentionally-purposely." Id. at 199 , 776 A.2d 657 . Because the defendant "intentionally and deliberately intercepted an oral communication," he violated CJP section 10-402(a). Id. at 201 , 776 A.2d 657 . In the case at bar, the Detention Center willfully intercepted the telephone conversation between Lee and his girlfriend, i.e. , it recorded their conversation intentionally and with the purpose of doing so.

At the inception of the call, the Detention Center warned Lee and his girlfriend that their call was being recorded and would be monitored. They proceeded to talk, thereby consenting to their call being recorded. See State v. Maddox , 69 Md. App. 296 , 301, 517 A.2d 370 (1986) (stating that consent for purposes of the Wiretap Act can be expressly or implicitly given). The question is whether the Detention Center "willfully intercepted" the telephone conversation between Lee and Boston, which happened during the originally placed call when Lee's girlfriend added Boston to the call.

This question has not been addressed in Maryland. It has been addressed twice in Massachusetts, however, which has a wiretap act that in all significant respects is like Maryland's Wiretap Act. 12 In Commonwealth v. Ennis , 439 Mass. 64 , 785 N.E.2d 677 (2003), Knight, a prison inmate, placed a telephone call to Williams. At the beginning of the call, an automated recording announced that the call was being recorded and that the call would disconnect if the recipient (Williams) activated a three-way call, i.e. , added another person to the call. Despite the warning, Williams dialed Ennis into the conversation.

The call was not disconnected and no new automated warning played. Ennis made incriminating statements during the recorded call. Before his trial on charges of first degree murder, Ennis moved to preclude the Commonwealth from introducing the recorded call into evidence, arguing that the department of corrections had recorded the telephone call without his consent, in violation of the Massachusetts wiretap act. The Commonwealth responded that the recorded call was admissible because the department of corrections did not willfully intercept Ennis's statements.

The trial court granted Ennis's motion and the Commonwealth noted a permissible interlocutory appeal. The case reached the Massachusetts Supreme Judicial Court, which reversed. The court explained that "not every recording of an oral communication without the knowledge of all participants is an 'offense,' nor is every such recording 'unlawful' or 'illegal.' " Id. at 68-69 , 785 N.E.2d 677 . The Massachusetts wiretap act, like Maryland's statute, requires that, to be unlawful, a telephone call must have been intercepted, i.e. , recorded, "willfully." The court concluded that willfulness was not shown: The department did willfully record inmate Knight's telephone call to Williams, announcing to both parties that their conversation would be recorded.

But the department affirmatively sought to prevent any additional party from being added to that two-party telephone conversation.... There is no evidence that the department's system failed or that the department could have taken other steps to prevent Williams from including Ennis in the telephone conversation. By whatever means (the record is not clear) Williams was able to bypass the feature intended to disconnect the call. Certainly the department did not "secretly record" any part of the resulting conversation willfully.

The department informed all of the anticipated parties to the ... telephone call that their communications would be recorded. Id. at 69-70 , 785 N.E.2d 677 (citations and footnote omitted). The court stated: "The wiretap act is not so broad as to impose liability each time an additional party is added to a two-party conversation in circumstances beyond the recorder's knowledge, direction, or control." Id. at 70 , 785 N.E.2d 677 . Five years later, the Supreme Judicial Court of Massachusetts extended its holding in Ennis to cover a situation in which a third party was added to a call simply by having the telephone handed to him.

In Commonwealth v. Boyarsky , 452 Mass. 700 , 897 N.E.2d 574 (2008), the defendant was convicted of first degree murder in the beating and stabbing death of the victim. At trial, the Commonwealth introduced recordings of telephone calls the defendant made from the jail where he was being held before trial. During some of the calls, the recipient, who had heard the automated announcement at the outset of the call that the call was being recorded, passed the telephone to another person, who had not heard the announcement. In the portions of the calls with these third parties, the defendant made incriminating statements.

On appeal, the defendant argued that those calls were recorded in violation of the Massachusetts wiretap act, as the people with whom he was speaking had not been informed that they were being recorded, did not otherwise know that that was the case, and therefore had not consented to being recorded. The court rejected this argument, explaining that there was no evidence "that those responsible at the jail for recording calls had any knowledge that the initial recipient of the defendant's telephone call had passed the telephone to someone else and no evidence in any event that the jail had any power to prevent such an occurrence." 452 Mass. at 707 , 897 N.E.2d 574 . It concluded that the interception was not willful: "As was true in Ennis , the absence of knowledge, power, and control on the jail's part signifies that the interception could not be deemed willful." Id. 13 The facts in Ennis and Boyarsky are similar to those in the case at bar, in that a third party was added to the call after the automated recording was played and apparently did not know that the call was being recorded. In Ennis , there was evidence that the correctional facility had a policy prohibiting three-way calls.

In Boyarsky , there was no evidence that the correctional facility had a policy limiting calls to only the initial recipients. The parties here have not referenced any policy governing telephone calls placed by inmates at the Detention Center. We are aware, from our own research, that the Baltimore County Department of Corrections Inmate Hand book & Rules (2013-2014) ("Handbook"), which covers "Telephone Privileges" for inmates, makes telephone calls by inmates "subject to recording and monitoring." Handbook at 11. The Handbook provides that calls by inmates are collect calls, and, if an intended recipient uses a carrier other than Verizon, the recipient must set up an account with ICSolutions.

Id. The "Telephone Privileges" portion of the Handbook says nothing about three-way calls or adding a third person to a call, however. 14 We agree with the reasoning of the court in Ennis and Boyarsky , and hold that although the Detention Center's recording of Lee's call to his girlfriend was an intentional, purposeful act, i.e., was willful, its recording of Boston's portion of the telephone conversation was not. A call by an inmate at the Detention Center commences with its placement to the party being called, at which point the inmate and the recipient of the call are notified that the call is being recorded and monitored. The call is between those two people and the intent to record is directed to them.

Even in the absence of a policy prohibiting the later addition of a third participant to an inmate call, the Detention Center ordinarily would not be acting "willfully" by continuing to record the call once it came to include the third participant. In his abbreviated motion to suppress, Boston alleged only that his telephone conversation with his brother was recorded in violation of the Wiretap Act. He did not assert any constitutional or non-statutory violation. We conclude, therefore, that as the proponent of the motion it was Boston's burden to produce evidence to show that the Wiretap Act was violated and to persuade the court to so rule.

Unlike defense motions seeking the suppression of evidence obtained by a warrantless search, where, because the search is presumptively unconstitutional, and therefore the State bears the burden of production and persuasion, see e.g., McCain v. State , 194 Md. App. 252 , 278, 4 A.3d 53 (2010), the defense motion here did not enjoy the benefit of a presumed violation of the Wiretap Act. Boston did not produce any evidence in this case of what the Detention Center's monitoring of inmate telephone calls consists of-whether calls are listened to as they are happening and if so whether all calls are listened to. Nor did he produce any evidence that, if any such monitoring takes place, telephone calls may be disconnected depending upon what the monitoring reveals. Just as the court in Boyarsky observed, without evidence of knowledge, power, and control on the part of the Detention Center, its recording of a conversation between an inmate and a person who was not the recipient of the inmate's call but was added to the call by the recipient is not willful.

At most it would be inadvertent. In sum, Boston sought to have his recorded telephone conversation with his brother excluded from evidence as having been obtained in violation of the Wiretap Act, but did not offer evidence that would support a finding that the Detention Center willfully intercepted that call. In the absence of proof that the Detention Center violated the Wiretap Act by recording the call in question, the recording was not inadmissible under that act. 15 B. "Our standard of review on the admissibility of evidence depends on whether the 'ruling under review was based on a discretionary weighing of relevance to other factors or on a pure conclusion of law.' " Perry v. Asphalt & Concrete Services, Inc. , 447 Md. 31 , 48, 133 A.3d 1143 (2016) (quoting Parker v. State , 408 Md. 428 , 437, 970 A.2d 320 (2009) ).

We generally review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Id. (quoting Ruffin Hotel Corp. of Maryland, Inc. v. Gasper , 418 Md. 594 , 619, 17 A.3d 676 (2011) ). We apply a de novo standard of review, however, when deciding whether evidence is relevant because "we determine whether evidence is relevant as a matter of law." Id.

(citing State v. Simms , 420 Md. 705 , 725, 25 A.3d 144 (2011) ). To state it differently, "[a]lthough trial judges have wide discretion 'in weighing relevancy in light of unfairness or efficiency considerations, trial judges do not have discretion to admit irrelevant evidence.' " Id. (quoting Simms , 420 Md. at 724 , 25 A.3d 144 ). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Md. Rule 5-401.

The recorded telephone conversation between Boston and Lee was offered by the State to show consciousness of guilt on Boston's part. In Thomas v. State , 372 Md. 342 , 352-53, 812 A.2d 1050 (2002), the Court of Appeals explained the inferences that must be established for consciousness of guilt evidence to be relevant, including the inference that the defendant's consciousness of guilt is of the crime charged. Boston argues that there was insufficient evidence to support the inference that the words he spoke during his telephone conversation with Lee, about changing his contact information and leaving the area, showed consciousness of guilt of the crimes against Matthews. We disagree.

In the telephone call, Boston suggested that he intended to leave the area and change his contact information: [BOSTON]: (Indiscernible) might be out of town for a little bit. MR. LEE: I'm going to try to call you again tomorrow. [BOSTON]: All right. I'm not sure if she'll remember but I'm going to switch to another-but I'm (indiscernible).

He then made reference to information connected to the attack on Matthews: MR. LEE: (Indiscernible) was it-was it-was it-you feeling me? Does it come out? [BOSTON]: No. MR. LEE: It ain't coming how you want it to? [BOSTON]: No. MR.

LEE: I hope you all right, my n*****. [BOSTON]: They say Shorty got hit a (indiscernible) times, twice in the face, once in the head (indiscernible). * * * MR. LEE: That shit crazy. Oh, and that Kim-Kim called Keonia, talking about he saying-saying the name; you feeling me? [BOSTON]: Yeah. He say-you know.

(Emphasis added.) Thus, Boston is describing a victim who was shot in the head several times and is still alive-a very particular and unusual set of events that matches what happened to Matthews. In addition, he and Lee discuss the fact that the victim is "saying the name," i.e., that he is