Jackson v. State

Greene, J. In this criminal case, Petitioner Allan Jackson ("Mr. Jackson") challenges the admissibility of two items of evidence that he claims lacked authenticity and were, thus, inadmissible. Specifically, we review the requisite evidentiary foundation for the admission into evidence of a bank statement record as well as a compact disk containing video surveillance footage. Because we determine that the evidence was properly authenticated under the Maryland Rules of Evidence, we shall affirm the judgment of the Court of Special Appeals. FACTUAL AND PROCEDURAL BACKGROUND Mr. Jackson was tried by a jury in the Circuit Court for Baltimore City on nine separate criminal counts. 1 The charges against Mr. Jackson stemmed from an alleged home invasion on April 29, 2015.

Testimony from the victim of the crime, Donald Daggett, described a confrontation at his home wherein Mr. Jackson pushed his way into Mr. Daggett's home, wielding a knife, and demanded money. Mr. Daggett surrendered some cash and his PNC Bank card as well as the card's personal identification number. According to the State, Mr. Jackson thereafter stole Mr. Daggett's van and used Mr. Daggett's bank card to make four unauthorized withdrawals from the ATM at the Bank of America Brooklyn-Curtis Bay branch at 3601 S. Hanover Street. The withdrawals exceeded $1,000 and were made over a span of several hours during the night of April 29, 2015, through the early morning of April 30, 2015.

After a five-day trial, the jury convicted Mr. Jackson of two of the nine counts: first-degree assault 2 and theft of at least $1,000 but less than $10,000. 3 Relevant to our inquiry is Mr. Jackson's conviction of theft of at least $1,000. To prove that Mr. Jackson withdrew funds, without authorization, from Mr. Daggett's PNC account, the State first introduced two ATM receipts, which had been recovered from the stolen van. One ATM receipt reflected a withdrawal in the amount of $200 from the Bank of America Brooklyn-Curtis Bay ATM at 11:43 p.m. on April 29, 2015. The second receipt reflected a withdrawal in the amount of $200 from the Bank of America Brooklyn-Curtis Bay ATM at 12:20 a.m. on April 30, 2015.

Additionally, the State produced two still photographs from a surveillance video at the Brooklyn-Curtis Bay ATM location, which captured an image of a man resembling Mr. Jackson standing near the ATM at 11:43 p.m. on April 29, 2015, and again at 12:20 a.m. on April 30, 2015. In addition, the State introduced two compact disks ("CD") containing video surveillance footage. The first CD showed the events that occurred at the Bank of America Brooklyn-Curtis Bay ATM during the period of 11:15 p.m. to 11:35 p.m. on April 29, 2015. The second disk showed video surveillance of events that occurred during the period of 12:10 a.m. and 12:30 a.m. on April 30, 2015. 4 It is undisputed that the man depicted in the video footage standing near the ATM resembles Mr. Jackson.

Finally, the State, through Mr. Daggett's testimony, introduced a bank statement from PNC bank for the business checking account of Mr. Daggett's business, Double D Tires, LLC. The bank statement reflected an accounting period of April 1, 2015, through April 30, 2015. As part of the same exhibit, there was a two-page "Account Transaction Detail Report," which showed each transaction in chronological order for the period of April 1, 2015, through April 30, 2015. The State's exhibit showed four ATM withdrawals from the Double D Tires, LCC account, which had posted to the account on "4/30." Specifically, the amounts of each individual withdrawal were $203, $503, $203 and $203, which totaled $1,112.

The State's exhibit, in its entirety, was moved into evidence. The jury convicted Mr. Jackson of first-degree assault and theft of at least $1,000 but not more than $10,000. In an unreported opinion, the Court of Special Appeals affirmed the judgment of the Circuit Court. Jackson v. State , No. 1516, 2016 Term, 2017 WL 4536000 (Md. Ct. Spec.

App., Oct. 11, 2017). The intermediate appellate court held that the disk segment containing the surveillance footage was properly authenticated by the Bank of America employee. The employee's testimony verified that the footage on the disk was a fair and accurate representation of what he had seen previously while viewing the bank's stored images of the cameras surrounding the Brooklyn-Curtis Bay ATM. Next, the Court of Special Appeals concluded that the PNC bank statements satisfied the four requirements of the business record hearsay exception, under Md. Rule 5-803(b)(6), and, thus, were properly authenticated.

Mr. Jackson filed a petition for writ of certiorari in this Court, which we granted to answer the following questions: 1. Whether the Court of Special Appeals erred in holding that evidence had been properly authenticated, despite acknowledging that the evidence was not what its proponent claimed. 2. Whether records of regularly conducted business activities can be authenticated through inferences and "common knowledge," even though Rule 5-902 requires "[t]estimony of authenticity." Jackson v. State , 457 Md. 397 , 178 A.3d 1241 (2018). We hold that the Court of Special Appeals did not err when concluding that the CD was properly authenticated and that the bank statements were admissible under the business records exception to the hearsay rule.

Accordingly, we affirm the judgment of the intermediate appellate court. DISCUSSION Parties' Arguments In this case, Petitioner asks us to decide whether the introduction of the CD of the surveillance video footage, which was recorded at the Bank of America Brooklyn-Curtis Bay ATM on April 29, 2015, between 11:15pm and 11:35pm, was properly authenticated. Petitioner argues that the CD of the surveillance video was not properly authenticated because the video does not show what the State claimed it showed-specifically, a withdrawal of $200 from Daggett's bank account at 11:43 p.m. on April 29, 2015. 5 According to Petitioner, the intermediate appellate court's holding, which upheld the admission of the videotape on the basis of authenticity, "is impossible to square with the plain text of Md. R. 5-901(a)." Petitioner reasons that this Court's affirmance of that holding "would undercut fundamental principles of trust and fairness in judicial proceedings." According to Petitioner, "[w]hat follows logically ... is that parties may distort, misrepresent, or even lie about the evidence that they present to the jury, so long as that evidence is somehow labeled as what it actually is." Petitioner asserts that the proper authentication of the surveillance footage turns on whether the evidence is "sufficient to support a finding that the matter in question is what its proponent claims," as provided in Md. Rule 5-901(a). Mr. Jackson argues that the video footage was "not what the State claimed," and, therefore, was not properly authenticated.

The State, on the other hand, reasons that the Bank of America employee, Brett Cunningham, who testified about the CD, filled the "authentication gaps" that were at issue in Washington v. State , 406 Md. 642 , 961 A.2d 1110 (2008). According to the State, the CD was properly authenticated based on Mr. Cunningham's testimony that the video was a reliable and accurate depiction of the events of that time period. i. Admission of ATM Surveillance Footage Maryland Rule 5-901(a) provides, "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." A threshold requirement of admissibility of evidence is whether the authenticity of the evidentiary matter may be established. Authentication refers to a process of "laying a foundation for the admission of such nontestimonal evidence as documents and objects." Hornstein & Weissenberger, Ma ryland Evidence: 2002 Courtroom Manual , at 306.

Underlying that process is the question of whether the evidence is what it is claimed to be. See 7 McLain, Maryland Evidence § 5-901:4(a), at 284 ("The fact that must be fulfilled by every offer of real proof, on which its relevance depends, is that the evidence is what its proponent claims it to be."). Authentication "is integral to establishing [the matter's] relevancy." Sublet v. State , 442 Md. 632 , 656, 113 A.3d 695 , 709 (2015). "Conceptually, the function of authentication or identification is to establish, by way of preliminary evidence, a connection between the evidence offered and the relevant facts of the case." Hornstein & Weissenberger, Maryland Evidence: 2002 Courtroom Manual , at 306.

Maryland's Rule 5-901(a) is identical to its federal counterpart, Federal Rule of Evidence 901(a). When interpreting Rule 901(a), the United States District Court for the District of Columbia has articulated that a "Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so." U.S. v. Safavian, 435 F.Supp.2d 36 , 38 (D.D.C. 2006) (emphasis in original). The threshold of admissibility is, therefore, slight. See generally Sublet , 442 Md. 632 , 113 A.3d at 709-10 (explaining that our adoption of Md. Rule 5-901 was intended to codify our common law of evidence, which was based upon Federal Rule of Evidence 901(a) ).

We have previously explained that, for purposes of admissibility, a videotape is subject to the same authentication requirements as a photograph. Washington , 406 Md. at 651 , 961 A.2d at 1115 . Photographs and videotapes may be authenticated through first-hand knowledge, or, as an alternative, as "a 'mute' or 'silent' independent photographic witness because the photograph speaks with its probative effect." Id. at 652 , 961 A.2d at 1115 (quoting Washington v. State , 179 Md. App. 32 , 44, 943 A.2d 704 , 711 (2008) ). We explained in Washington that "so long as sufficient foundational evidence is presented to show the circumstances under which it was taken and the reliability of the reproduction process," photographs may be admissible as probative evidence.

Id. at 652, 961 A.2d at 1116 . This Court has yet to adopt "any rigid, fixed foundational requirements" for admission of evidence under the "silent witness" theory. See Dep't of Pub. Safety & Corr.

Servs. v. Cole , 342 Md. 12 , 26, 672 A.2d 1115 , 1122 (1996). The foundational basis may be established through testimony relative to "the type of equipment or camera used, its general reliability, the quality of the recorded product, the process by which it was focused, or the general reliability of the entire system." Washington , 406 Md. at 653 , 961 A.2d at 1116 (quoting United States v. Stephens , 202 F.Supp.2d 1361 , 1368 (N.D. Ga. 2002) ). In the instant case, the State sought to admit a CD containing video surveillance footage showing the events that occurred at the Bank of America Brooklyn-Curtis Bay ATM during the period of 11:15 p.m. to 11:35 p.m. on April 29, 2015. Prior to the CD's admission, the State relied on the testimony of Brett Cunningham, Bank of America's Protective Services Manager, in order to provide the foundation for the CD's authenticity.

Mr. Cunningham described the process he used to access the ATM video footage, which entailed accessing a Digital Video Recording "program and pull[ing] up the Curtis Bay branch for that date and time and the cameras that I was looking for." Once he had located the date, time and cameras for the Brooklyn-Curtis Bay branch relative to the incident, Mr. Cunningham testified that he then "exported the images into a digital file and emailed them to [the detective]." Mr. Cunningham was not able to modify, cut, paste, or enhance the video in any way. According to his testimony, Mr. Cunningham, in fact, did not even have the ability to copy the file directly to another storage device, such as a thumb drive or DVD. Once Mr. Cunningham received confirmation from the detective, he was then required to submit a specific request with date, time, location and camera specifications to a Bank of America team located in North Carolina, who would "download the requested video and mail it directly to the detective." Mr. Cunningham testified that he submitted requests for two time ranges, including April 29, 2015, starting at 11:15 p.m. to end at 11:35 p.m. as well as April 30, 2015, starting at 12:10 a.m. to end at 12:30 a.m. When the State moved to admit the CD containing video footage of the Brooklyn-Curtis Bay ATM location on April 29, 2015, at 11:15 p.m. to 11:35 p.m., it did so without proffer.

Petitioner's trial counsel objected. His argument at that time belies the one Petitioner makes before us now. Mr. Jackson's objection at trial was based not on the authenticity of the video footage but on its relevancy : Your Honor, my concern is this, the gentleman Mr. Cunningham indicated that he didn't, let me see his wording, didn't review the details of the transaction involved. As a result, I'm not certain from listening to him testify that he has linked this particular video to the transaction in this particular case, and if that's the case, that would make the relevance questionable.

(Emphasis added.) The Circuit Court admitted the evidence over objection and explained: Well, the receipts are in evidence already [ ] showing what dates and times they are[. T]he relevance is conditional on the State tying it together, but the jury would certainly have a basis to believe that these are the appropriate time corresponding to those receipts and that's all that's necessary to bring it in as authentic. Whether the State ultimately ties it all together would be a matter of convincing the jury that it all relates. But the foundation is sufficient to show that these are fair and accurate reproductions of what those cameras captured at those particular times.

We agree. The question of authenticity is whether the evidence "is what its proponent claims" it to be. Rule 5-901(a). In that regard, given the foundation that the State provided through Mr. Cunningham's testimony, the video surveillance footage is what Mr. Cunningham sought when he submitted his request to the Bank of America team in North Carolina: four exterior camera angles of the ATM on April 29, 2015, starting at 11:15 p.m. to 11:35 p.m.

Mr. Cunningham testified that the CD introduced at trial was what he had viewed on May 18, 2015, when he first viewed Bank of America's DVR program. The ATM surveillance video does not include the 11:43 p.m. transaction, as suggested by Mr. Cunningham in his trial testimony. Thus, the April 29, 2015, footage is not directly relevant to the 11:43 p.m. transaction. The absence of the 11:43 p.m. transaction, however, does not detract from the video's authenticity.

For the jury to properly rely on the video footage as a "silent witness," as probative evidence in itself, the State was required to establish "sufficient foundational evidence [ ] to show the circumstances under which it was taken and the reliability of the reproduction process." Washington , 406 Md. at 652 , 961 A.2d at 1116 (citing People v. Bowley , 59 Cal.2d 855 , 31 Cal.Rptr. 471 , 382 P.2d 591 , 594 (1963) ). The State elicited through Mr. Cunningham's testimony the process of reproduction, the reliability of that process, and whether the reproduction was a fair and accurate representation of what the witness had viewed when he submitted a request for the video footage to the Bank of America team in North Carolina. We cannot say that Mr. Cunningham's testimony failed in any respect to properly authenticate the surveillance video footage. As the Court of Special Appeals explained, " 'the matter in question' is whether the video showed what it purported to show per its running clock, namely, activity that transpired on April 29, 2015, between 11:15 p.m. and 11:35 p.m. at and about the ATM at the Bank of America Brooklyn-Curtis Bay branch." The surveillance footage serves as a silent witness of the continuous activity at that ATM between 11:15 p.m. and 11:35 p.m. on April 29, 2015.

We conclude that the CD containing the video surveillance footage was properly authenticated. The jury did not have video footage for activity at the Brooklyn-Curtis Bay Branch ATM between 11:36 p.m. and 12:10 a.m. The evidence the jury had included an ATM receipt with a time-stamp of 11:43 p.m. as well as a still-photograph of Mr. Jackson at the Brooklyn-Curtis Bay ATM at 11:43 p.m. Thus, the video footage of 11:15 p.m. to 11:35 p.m., not unlike the ATM receipt, was one of several pieces of evidence available for the jury's consideration.

The surveillance footage is obviously limited in what it shows, e.g. that Mr. Jackson was at the Brooklyn-Curtis Bay branch ATM during that time period. The video footage could not have proven, for instance, how much money Mr. Jackson withdrew from the account at that time. Notwithstanding, a jury is charged to consider each piece of evidence for its own evidentiary value. With that in mind, the discrepancy between the running clock on the video footage and the State's suggestion that the video footage supported a withdrawal at 11:43 p.m. does not negate the possibility of a withdrawal between 11:15 p.m. and 11:35 p.m.

The jury could have determined that the video footage was evidence of Mr. Jackson at the Brooklyn-Curtis Bay ATM during the timeframe of 11:15 p.m. to 11:35 p.m. Additionally, the jury could have reasonably determined that the ATM receipt with a time-stamp of 11:43 p.m., in conjunction with the still photo with the time stamp of 11:43 p.m., showed that Mr. Jackson was at the ATM at 11:43 p.m. The jury, therefore, could have reasonably concluded that Mr. Jackson was involved with all of the unauthorized withdrawals from Mr. Daggett's account. Petitioner's concern that the intermediate appellate court's holding would invite distortion or misrepresentation of evidence that is presented to the jury highlights the essential role of the trial judge as "gatekeeper." See Sublet , 442 Md. at 656 , 113 A.3d at 709 ("The role of judge as 'gatekeeper' is essential to authentication, because of jurors' tendency, 'when a corporal object is produced as proving something, to assume , on sight of the object , all else that is implied in the case about it[.]' " (Emphasis in original) ).

In this case, the trial judge astutely recognized that the State had sufficiently established the foundation for the video footage's authenticity, even if the video's relevance remained conditional on the rest of the State's case. The Court of Special Appeals agreed. Writing for the intermediate appellate court, the Honorable Lawrence Rodowsky succinctly posited, "As admissible evidence, the April 29 disk segment was available for argument." We agree. ii. Admission of PNC Bank Statements Mr. Jackson posed a second inquiry in his petition for certiorari, which asked "whether records of regularly conducted business activities can be authenticated through inferences and 'common knowledge,' even though Md. Rule 5-902 requires 'testimony of authenticity.' " Mr. Jackson argues that Md. Rule 5-902"governs authentication of business records" and directs us to consider the extrinsic evidence that may be used to authenticate a document under Md. Rule 5-902.

Although Mr. Jackson challenges whether the bank statements were genuine, he rejects any applicability of Md. Rule 5-901 or Md. Rule 5-803(b)(6) to a business record. Maryland Rule 5-902(b)(2), which describes the procedure for admitting self-authenticating documents, provides: Testimony of authenticity as a condition precedent to admissibility is not required as to the original or a duplicate of a record of regularly conducted business activity, within the scope of Rule 5-803(b)(6) that has been certified pursuant to subsection (b)(2) of this Rule, provided that at least ten days prior to the commencement of the proceeding in which the record will be offered into evidence, (A) the proponent (i) notifies the adverse party of the proponent's intention to authenticate the record under this subsection and (ii) makes a copy of the certificate and record available to the adverse party and (B) the adverse party has not filed within five days after service of the proponent's notice written objection on the