Clark v. State

ALPERT, J. William Leon Clark, appellant, was convicted at a bench trial in the Circuit Court for Prince George’s County of second-degree assault. 1 Appellant asks the following two questions on appeal: I. Was there sufficient evidence of criminal agency to sustain his conviction? ¹¹³ II. Did the trial court err in admitting into evidence two 911 recordings because the recordings: A) were not properly authenticated, and B) were testimonial and violated the Confrontation Clause to the United States Constitution? For the following reasons, we shall affirm the judgment. FACTS The State’s theory of prosecution was that at around 5:45 p.m. on June 8, 2007, appellant assaulted Marsha Thomas at an Econo Lodge in Clinton, Maryland.

Two responding police officers from the Prince George’s County Police Department testified for the State; Ms. Thomas did not testify. Additionally, the State introduced into evidence two 911 calls Ms. Thomas made immediately after the assault, and her medical records pertaining to her treatment after the assault. The defense’s theory was mistaken identification. The defense presented no testimonial or extrinsic evidence.

Viewing the evidence in the light most favorable to the State, the following was established. Patrol Officer Scott Loring testified that at around 5:45 p.m. on June 8, 2007, he received a dispatch call for a domestic disturbance at the Econo Lodge at 7851 Malcolm Road in Clinton. Ten minutes later, he and another officer entered the lobby of the motel and saw a woman sitting on a couch. She motioned to the officers and called out, “Over here.” The woman, who was very upset, crying, and distraught, said she was the person who had called the police.

Officer Loring noted some bruising on her neck and one of her shoulders, and, at one point, she pulled her sweat pants up to expose a misshapen knee cap. The officers took pictures of her injuries, which were introduced into evidence at trial. (St.Exh. 3-6,43) Ten minutes after the police arrived, Ms. Thomas was taken by ambulance to a hospital. The medical records pertaining to her treatment, which were also admitted into evidence, indicated that she had suffered multiple blunt trauma and had a ¹¹⁴ contusion on her right knee.

(St.Exh.2, p. 11, 33) The records related that Ms. Thomas’s boyfriend strangled her, kicked her in the stomach and groin, and punched her in the head. (St.Exh. 2, p. 13, 16-64, 69) Corporal Kevin Carter testified that at around 5:45 p.m. he received a dispatch call for a black man wearing an orange shirt driving a white car away from the Econo Lodge. Within two minutes of receiving the call and less than four miles from the Econo Lodge, the corporal saw a white car with one occupant, a medium-complected black man wearing an orange shirt. The corporal stopped appellant’s car and recovered a three and a half inch folding knife from appellant’s right front pant pocket.

Appellant was placed under arrest. Audio recordings of two 911 calls were admitted into evidence. In the first recording, made at 5:46 p.m., the sobbing and upset woman caller identifies herself as Marsha Thomas and a victim of “domestic violence.” She asks for police and ambulance assistance because she has been “beaten up.” She states that she is in her room at an Econo Lodge and gives the address. She adds that she is walking outside, and that “he” is getting ready to leave.

When the operator asked who beat her up, the line disconnects. In the second call, made at 5:47 p.m., the still sobbing and audibly upset woman again identifies herself as Marsha and says, “he” hung up the phone. When the operator asked who hung up the phone, she replies, “Leon Clark.” In response to the dispatcher’s questions, she describes him as a black man wearing an orange shirt and having a knife; she gives his date of birth as February 20 or 22,1966. She then says she does not know the exact date but knows that it is in February. 2 She states that he threw her down the steps and beat her up.

When asked if he has left, she replies, “hold on.” After a pause, she replies in the affirmative. She states that he is driving a white Chrysler toward D.C., but she knows he is coming back. In response to ¹¹⁵ the dispatcher’s questions, she states that she is calling from a pay phone but will wait for the police in the lobby of the motel. DISCUSSION I. Appellant argues that there was insufficient evidence to prove that he was the person who assaulted Ms. Thomas so as to sustain his conviction for second-degree assault.

Appellant argues that “Marsha Thomas did not appear in court to even confirm that she had made the 911 calls, much less that she had actually been the victim of a crime, and less still that the ‘Leon Clark’ that is mentioned in the recording and the William Leon Clark on trial are one and the same.” Appellant cites Cartnail v. State, 359 Md. 272 , 753 A.2d 519 (2000), in support of his argument. When reviewing the sufficiency of the evidence, our task is to determine “ Vhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Taylor v. State, 346 Md. 452, 457 , 697 A.2d 462 (1997)(quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979))(emphasis in original). The appellate court does not weigh the evidence or judge the credibility of the witnesses, as that is the responsibility of the trier of fact. Bryant v. State, 142 Md.App. 604, 623 , 791 A.2d 161 , cert. denied, 369 Md. 179 , 798 A.2d 552 (2002).

See also Jones v. State, 343 Md. 448, 465 , 682 A.2d 248 (1996). Instead, “we [ ] determine whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.” Bryant, 142 Md.App. at 622-23 , 791 A.2d 161 (quotation marks and citation omitted). The same standard applies to those criminal cases resting upon circumstantial or direct evidence “since, generally, proof of guilt based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accounts.” State v. Suddith, 379 ¹¹⁶ Md. 425, 430, 842 A.2d 716 (2004) (quotation marks and citation omitted). As with direct evidence, circumstantial evidence -will sustain a conviction when all the facts taken together do not require that the fact-finder resort to speculation or mere conjecture.

Taylor, 346 Md. at 458 , 697 A.2d 462 . Several cases have recited the litany that a conviction upon circumstantial evidence alone will not “be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.” Hebron v. State, 331 Md. 219, 224 , 627 A.2d 1029 (1993)(quotation marks and citation omitted). See also Wilson v. State, 319 Md. 530, 536-37 , 573 A.2d 831 (1990); West v. State, 312 Md. 197, 211-12 , 539 A.2d 231 (1988). We have stated that these cases “have been understandably vague about what would constitute a case based solely on circumstantial evidence and what would amount to inconsistency with any reasonable hypothesis of innocence.” Hagez v. State, 110 Md.App. 194, 204 , 676 A.2d 992 (1996).

See State v. Smith, 374 Md. 527, 560-61 , 823 A.2d 664 (2003)(Harrell, J., concurring)(characterizing “reasonable hypothesis” language as “abstruse”). We stated that the better test is “whether the evidence, circumstantial or otherwise, and the inferences that can reasonably be drawn from the evidence, would be sufficient to convince a rational trier of fact beyond a reasonable doubt, of the guilt of the accused.” Hagez, 110 Md.App. at 204 , 676 A.2d 992 (citations omitted). See also Jensen v. State, 127 Md.App. 103, 117-20 , 732 A.2d 319 , cert. denied, 356 Md. 178 , 738 A.2d 855 (1999). The Court of Appeals has explained: Circumstantial evidence is not like a chain which falls when its weakest link is broken, but is like a cable.

The strength of the cable ... does not depend upon one strand, but is made up of a union and combination of the strength of all its strands. No one wire in the cable that supports the suspension bridge across Niagara Falls could stand much weight, but when these different strands are all combined together, they support a structure which is capable of sustaining the weight of the heaviest engines and trains. We therefore ¹¹⁷ think it is erroneous to speak of circumstantial evidence as depending on links, for the truth is that in cases of circumstantial evidence each fact relied upon is simply considered as one of the strands and all of the facts relied upon should be treated as a cable. Hebron, 331 Md. at 227-28 , 627 A.2d 1029 (quotation marks and citations omitted). “Where it is reasonable for a trier of fact to make an inference, we must let them do so, as the question is not whether the [trier of fact] could have made other inferences from the evidence or even refused to draw any inference, but whether the inference [it] did make was supported by the evidence.” Suddith, 379 Md. at 447 , 842 A.2d 716 (quotation marks and citation omitted)(brackets in original).

In Cartnail v. State, 359 Md. 272 , 753 A.2d 519 (2000), the police were on the lookout for three black males fleeing in an unknown direction from a hotel robbery in a gold or tan Mazda. Cartnail, 359 Md. at 277 , 753 A.2d 519 . An hour and fifteen minutes after the robbery was reported, the police stopped a gold Nissan about two miles from the robbery. Id.

Inside the car were only two black males, one of whom was the defendant. Id. at 278 , 753 A.2d 519 . Under those circumstances, the Court of Appeals concluded that there was insufficient evidence to confer reasonable articulable suspicion to stop the vehicle. Id.

The facts of Cartnail are easily distinguishable. Here, on the 911 tape the victim identified the man who assaulted her as “Leon Clark” with a date of birth of February 20 or 22, 1966. That information was nearly identical to appellant’s name, “William Leon Clark,” and his date of birth of February 24, 1966. Unlike Cartnail, supra, appellant was stopped within minutes of the assault and four miles of the Econo Lodge wearing clothing and driving a car matching the description given by the victim; he was the sole occupant of the car.

Under the circumstances, we are persuaded that a rational juror could find beyond a reasonable doubt that ¹¹⁸ appellant was the person who committed the assault upon Ms. Thomas.

II

Appellant argues that the trial court erred in admitting the two 911 audio recordings. He presents two arguments as to why the recordings were inadmissible. First, he argues that the voice on the recordings was not authenticated as Ms. Thomas’s voice. Second, he argues that the recordings’ statements were “largely testimonial” because the “immediate emergency was concluded” and the caller was in large measure “telling the operator what has been done to her[.]” Appellant argues that as testimonial statements, their admission violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and were inadmissible under Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).

We find no merit to either argument, which we shall address in turn. A. Authentication Md. Rule 5-901, titled “Requirement of authentication or identification” provides, in pertinent part, “The requirement of authentication or identification as a condition precedent to the admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Subsection (b) lists 10 examples of authentication conforming with the Rule’s requirements. The Rule states, however, that the listed examples are “[b]y way of illustration only, and not by way of limitation^]” One of the listed examples, Rule 5-901(b)(4), provides that identification may be accomplished through circumstantial evidence. In Knoedler v. State, 69 Md.App. 764, 772-74 , 519 A.2d 811 (1987), the Court of Special Appeals held that telephone conversations are admissible if direct or circumstantial evidence is presented “to establish the identity of the other person to the conversation.” The Knoedler Court stated that “[s]uch authentication can be found either from evidence that the witness was familiar with and recognized the voice of ¹¹⁹ the alleged caller, or, in the absence of such recognition, ‘sundry circumstances (including other admissions and the like) may suffice.’ ” Id.

(citing 7 Wigmore on Evidence, § 2155(l)(b) (1978)). Here, the female caller identified herself as “Marsha Thomas” to the Prince George’s County 911 operator. She described her assailant, her injuries, and stated that her assailant had beaten her up, strangled her, and pushed her down the stairs. She told the operator that she would be near the front desk of the Econo Lodge lobby waiting for the police to arrive.

When the police arrived ten minutes later, they found a woman sitting on a couch in the front lobby. She waved them over and said she had called. She had bruises on her neck and shoulder and her knee was misshapen. She was taken by ambulance to a hospital.

The medical records pertaining to her treatment were introduced into evidence without objection. The records identify the patient as “Marsha Thomas” and contain a photocopy of her Washington, D.C. driver’s license. The records list the injuries and the cause of the injuries, which are consistent with the injuries about which she complained to the police. Under the circumstances, we are persuaded that the trial court did not err in admitting the two 911 recordings as sufficiently authenticated.

Cf. United States v. Orozco-Santillan, 903 F.2d 1262, 1266 (9th Cir.1990) (“The identity of a telephone caller may be established by self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, internal patterns and other distinctive characteristics, and disclosure of knowledge of facts known peculiarly to the caller.”). B. Confrontation Clause In Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004),