Paydar v. State

Siamak Paydar v. State of Maryland, No. 2673, September Term, 2018. Opinion by Kenney, J. EVIDENCE – HEARSAY – PUBLIC RECORDS EXCEPTION – WHEN OFFERED AGAINST AN ACCUSED IN A CRIMINAL ACTION Md. Rule 5-803(b)(8), commonly referred to as the “public records exception,” permits admission of hearsay statements contained within public records and reports. Under the exception, information in a public agency record of “matters observed pursuant to a duty imposed by law, as to which matters there was a duty to report” would ordinarily be admissible. Md. Rule 5-803(b)(8)(A)(ii).

But, under Md. Rule 5-803(b)(8)(C), sometimes referred to as the “law enforcement exception,” a “record of matters observed by a law enforcement person is not admissible . . . when offered against an accused in a criminal action.” EVIDENCE – HEARSAY – PUBLIC RECORDS EXCEPTION – BODY CAMERA RECORDINGS BY A LAW ENFORCEMENT PERSON Md. Rule 5-803(b)(8)(D) permits a recording from a body camera worn by a law enforcement person to be “offered against an accused” if the recording: (1) is made contemporaneously; (2) is properly authenticated; (3) is otherwise trustworthy; and (4) any hearsay statements within the recording fall within an independent hearsay exception under Md. Rule 5-805. EVIDENCE – HEARSAY – PUBLIC RECORDS EXCEPTION – BODY CAMERA RECORDINGS BY A LAW ENFORCEMENT PERSON – HEARSAY WITHIN HEARSAY Md. Rule 5-803(b)(8)(D) is not a separate and additional exception to the hearsay rule and should not be read as broadening the types of admissible hearsay. For a body camera recording to be admissible, the party offering the evidence must establish a hearsay exception for the statements contained therein. CRIMINAL LAW – HARMLESS AND REVERSIBLE ERROR – BOLSTERING THE CREDIBILITY OF A KEY WITNESS Erroneous admission of evidence bolstering a key witness’s credibility is not harmless.

Circuit Court for Montgomery County Case No. 132694 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2673 September Term, 2018 ______________________________________ SIAMAK PAYDAR v. STATE OF MARYLAND ______________________________________ Arthur, Leahy, Kenney, James A., III (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Kenney, J. ______________________________________ Filed: November 22, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-11-22 11:36-05:00 Suzanne C. Johnson, Clerk A jury in the Circuit Court for Montgomery County convicted Siamak Paydar, appellant, of first-degree assault and false imprisonment of his wife, Goli Ariani. He was sentenced to twenty years for false imprisonment and a consecutive twenty years for first- degree assault. On appeal, he raises one question: Did the trial court err in admitting hearsay contained within a body camera video? For the reasons discussed below, we answer that question “yes” and reverse the convictions.

FACTUAL1 AND PROCEDURAL BACKGROUND Mr. Paydar and Ms. Ariani married in Iran in 2013. In May of 2015, Ms. Ariani moved from Iran to the United States to live with Mr. Paydar. Their son was born in August of 2016. Ms. Ariani testified that they began having marital relationship issues after their son’s birth.

An argument between them escalated on the evening of October 7, 2017. According to Ms. Ariani, the argument began when she told Mr. Paydar “my heart is no longer with you.”2 He became angry and headbutted her, which caused her to fall to the floor and impaired her vision. Afterwards, she went upstairs to her bedroom and cried. 1 The State called Ms. Ariani, Margarita Epley, Paul Epley, Sandra Epley, Detective Theresa Durham, Detective Shamus Galey, Officer Joshua Locke, and Officer Michelle Morgado to testify. Defense counsel focused on inconsistences in their various accounts of that evening.

The factual background reflects the testimony of Ms. Ariani, Margarita and Sandra Epley and the audio portion of Officer Morgado’s body camera video. 2 During the trial, Ms. Ariani testified in English and in Farsi, and an interpreter translated the Farsi to English. Returning to the kitchen later, she took a plate of food to the living room. Mr. Paydar grabbed her plate, told her that she had to eat in the kitchen, and she complied. While in the kitchen, she prepared a bottle for their son.

Mr. Paydar took the bottle and told her that he would take their son to his room upstairs. She told Mr. Paydar not to keep him up past 8:00 PM, but when she went upstairs, their son was awake in their bedroom. She said to Mr. Paydar, “I told you several times to put him to sleep by 8:00 [PM]. Why didn’t you put him in his bed[?]” and he responded by choking her for a few seconds.

Ms. Ariani then took their son to his room. While she was changing his diaper, Mr. Paydar came into the room and whispered in her ear that he would kill her. When she went to her bathroom, Mr. Paydar followed her and shouted, “you came here to destroy my life.” Ms. Ariani ran down the stairs to escape with Mr. Paydar following her. When she opened the front door and screamed, Mr. Paydar slammed the door shut, and told her to go upstairs.

She refused, and he grabbed her hair and banged her head against the wall. He then dragged her to the room next to the kitchen and, with electrical tape, taped her hands, feet, and mouth. He told her “I am going to cut you in[to] pieces. I’m going to take you to a dark place[,] and your parents will have to come cry for you.” 2 Mr. Paydar carried Ms. Ariani to the garage, put her into the “trunk”3 of his SUV, and then put zip ties around her arms and legs.

He closed and locked the SUV, and told her, “I’m going to bring my gun. I’m going to take you to a dark place. This is your last night.” When Mr. Paydar left the garage, Ms. Ariani was able to free one hand from the restraints. Getting into the backseat of the SUV, she located the door lock and exited it.

She pushed the automatic garage door opener, rolled under the garage door as it opened, and ran to the house across the street. There, she rang the doorbell and called for help. Margarita Epley let her into the house where she remained until the police arrived. Mr. Paydar was arrested that evening in his home.

After his arrest, police searched the house and the SUV. In the SUV, the police found a zip tie in the trunk, and, in the home, they recovered two guns and a backpack that contained a pair of gloves, a plastic bag, a flashlight, and a red hooded sweatshirt. Defense counsel challenged Ms. Ariani’s claim that October 7 was the first time that she told Mr. Paydar that she did not love him with a cell phone video of Ms. Ariani yelling at Mr. Paydar, in Farsi, “I hate you. You are a piece of shit.

I will make your life a living hell.” Defense counsel also challenged Ms. Ariani’s account of the headbutt and choking with photographs of Ms. Ariani taken that evening. She acknowledged there was no bruising or bleeding depicted in the photographs. 3 Although the rear of an SUV is usually referred to as the “back,” we will refer to it as a “trunk,” as Ms. Ariani did during her testimony. 3 Margarita Epley, the daughter of Sandra and Paul Epley, testified that she heard an unusual scream and asked her parents if they had heard it. About fifteen to twenty minutes later, she heard the doorbell ring several times and pounding on the door. Opening the door, she saw Ms. Ariani with remnants of tape and zip ties on her wrists and ankles, and bloody gums and teeth.

On cross-examination, Margarita admitted that she did not provide the police officers with those observations that evening, and that, prior to trial, she did not inform anyone other than her parents about hearing a scream. Defense counsel also challenged her testimony with photographs showing that Ms. Ariani did not have bleeding gums or zip ties on her ankles. Sandra Epley testified that Margarita had asked her and her husband if they had heard a “weird scream,” and that she heard Ms. Ariani knock and pound on the door about fifteen minutes later. When shown a photograph taken of Ms. Ariani that night, Ms. Epley testified that it did not depict Ms. Ariani as she first appeared because she had tape all over her face upon her arrival.

Defense counsel impeached her trial testimony with her prior deposition testimony that she did not recall what occurred on October 7. Officer Michelle Morgado responded to the Epleys’ home on the evening of October 7. Prior to her testimony, the State indicated its intention to introduce her body camera video. When defense counsel objected based on hearsay and confrontation grounds, the State argued that the video recording and the statements therein were admissible as an exception to the hearsay rule under Md. Rule 5-803(b)(8)(D).4 4 Md. Rule 5-803(b)(8)(D) provides: 4 Before the video was played, defense counsel renewed his objection: [DEFENSE COUNSEL]: Your Honor, I am not too sure . . . about this body worn camera [exception] . . . but when you look . . . they talk about . . . camera records of matters observed.

THE COURT: Uh-huh. [DEFENSE COUNSEL]: So, I think a fair reading of that section would be you can only use the body camera as a record of matters observed. It doesn’t mean the body camera would allow, or the fact that the body cam (unintelligible) hearsay statements of witnesses to just come in willy-nilly because they’re on a body camera. That’s – and again, that would be consistent with medical records, other types of documents. (Unintelligible) body camera comes in, but we’re talking about – it can be used to show what was observed by the officer, not what was said by the people on the body camera.

THE COURT: Okay. So, I think that would be one way of interpreting it. I guess the way I would interpret it is that, because the sentence, the section starts off saying subject to rule 5-805, if you go to rule 5-805, that’s the rule that doesn’t allow hearsay within hearsay. So, if the exception is that you can’t allow hearsay within hearsay, then the general would be that – I mean, they’re clearly talking about statements. [DEFENSE COUNSEL]: Right.

THE COURT: So, if they’re not allowing statements within statements, then clearly this is, to me, talking about statements. So, I would interpret this to mean that only recorded statements that are not violative of 5-805, which are statements within statements, are admissible as long as they’re authenticated, they’re made contemporaneously, and [their] circumstances [do not] indicate lack of trustworthiness. (…continued) Subject to Rule 5-805, an electronic recording of a matter made by a body camera worn by a law enforcement person or by another type of recording device employed by a law enforcement agency may be admitted when offered against an accused if (i) it is properly authenticated, (ii) it was made contemporaneously with the matter recorded, and (iii) circumstances do not indicate a lack of trustworthiness. 5 * * * THE COURT: Okay. Well, at this point I think my interpretation of [Md. Rule 5-803(b)(8)(D)] is that it is anticipating that statements made that are electronically recorded on the body camera are admissible, as long as those predicates are met. * * * THE COURT: And based upon the testimony, the predicates are met.

The circuit court admitted the body camera recording and gave the defense a continuing objection to its admission. The video begins at 1:40:50 with Ms. Ariani seated next to Sandra Epley on a couch across from Officer Morgado. Officer Joshua Locke is also present. Statements on the video include the following: Officer Locke: He pointed a gun?

Ms. Ariani: No Officer Locke: No gun tonight? Ms. Ariani: But he went to bring me and locked in the car and put me in the trunk. * * * Officer Morgado: What did he hit you with? Ms. Ariani: With the hands. Officer Morgado: So, you guys are saying – he headbutted you?

You guys were just discussing – you were discussing something? Ms. Ariani: (Unintelligible). Officer Morgado: He hit you like a ball? Ms. Ariani: Yeah.

On the wall. 6 * * * Officer Morgado: – pushed your head into the wall two times? Ms. Ariani: Yeah, and – with his hand, and two times on the wall. Officer Morgado: So, were you guys having an argument about something? * * * Ms. Ariani: And I was in the basement, and then my son used to sleep at 8:00 [PM]. Officer Morgado: Okay.

Ms. Ariani: At 8:00 [PM], and he (unintelligible) in the bedroom, and he didn’t let him to sleep. Officer Morgado: Okay Ms. Ariani: And he was not comfortable. My son was not comfortable, and I just went to the bedroom and saw that he’s not asleep, and it was after 8:00 – Officer Morgado: Okay. Ms. Ariani: – o’ clock [PM].

I just told him, why don’t you let him to sleep, because he usually sleeps at 8:00 [PM]. And I asked him, did you change his diaper? And he told, no, what are you – what, what do you want? Why did you, why did you come to the bedroom?

I don’t want to see you. I don’t want to – and he was shouting, and my son start, start crying. Officer Morgado: Okay. Ms. Ariani: Started crying.

And I took my son, and – I took my son in his, in his room, and I was changing his diaper, and he came again in his room, and he was discussing with me, he was shouting, and I told him, what do you want? I’m just – it’s his routine. He has to sleep at 8:00 [PM]. And he was angry.

He’s not normal. He just try – he trying to find something to argue, to discuss, to shout. 7 Officer Morgado: Okay. Ms. Ariani: Every day. And I’m exhausted, and that’s, that’s all.

We didn’t have any discussion. Officer Morgado: Okay. * * * Ms. Ariani: I put my son in the bed and then went to the bathroom, and he came to my bathroom, and he was choking me. What do you want? (The videotape was muted from 2:29:02 – 2:29:17).

Ms. Ariani: And then he was choking me. Then I ran down the stairs, and then he, in the back of [the] entrance door, he grabbed me – Officer Morgado: Okay. Ms. Ariani: – and he didn’t let me to run away, and then hit me several time[s]. Officer Morgado: Okay.

Ms. Ariani: And two time he tr[ied] [to] hit head on the wall next to the mirror in the, in – Officer Morgado: The hallway? Ms. Ariani: There is a mirror next to the entrance door. Officer Morgado: Okay. Ms. Ariani: And then he – I was shouting.

I was shocked, and he pushed me to go upstairs. Officer Morgado: Okay. Ms. Ariani: Because my son was crying, and he told me you have to go upstairs next to your son. Officer Morgado: Okay. 8 Ms. Ariani: And I don’t – I didn’t want to go upstairs.

I just wanted to be next to the door, because I know him. He, he wanted to stop me in the room because he took my cell phone at first. And then I told, I said, no, I don’t want to go upstairs. I’m going to go – I’m going to sleep here.

I told him, you are not going upstairs from anybody. Why? Why do you want me to go upstairs? * * * Ms. Ariani: And then when I told him these words, he, he was – he got so angry, and then oh you tell oh I’m scared from police? Okay.

So, and then put some tape and then put me in the car (unintelligible). * * * Officer Morgado: How did you ever get yourself out of the trunk? How did you get yourself out – you told me he put you in a car in a trunk? Ms. Ariani: Yeah. Officer Morgado: How did you get yourself out?

Ms. Ariani: In the garage. Officer Morgado: In the garage? The car never moved, right? Ms. Ariani: No. Officer Morgado: Okay.

Ms. Ariani: He hugged me. He hugged me and pushed, and then brought [zip ties], because he just – Officer Morgado: The tape? * * * Ms. Ariani: And then he put me in the trunk. I didn’t do anything. I was like this, and then he brought [zip ties].

Officer Morgado: The ties? 9 Ms. Ariani: From garage, because we have them in the garage, and then put [zip ties] and closed the door, closed the trunk, and turned the lights off, and then went to the hall and told me, I’ll be right back, and it’s your last night. After the video was played, the defense moved for a mistrial. Defense counsel argued that the State’s interpretation of Md. Rule 5-803(b)(8)(D) was fundamentally unfair in that it would allow a “trial by body worn camera,” in which witnesses could not be effectively cross-examined. The State responded that Mr. Paydar would not be prejudiced by the use of body camera videos in the manner contemplated by the rule because he had the power to subpoena witnesses and question them about the contents of the body camera video.

The circuit court denied the motion for a mistrial, reasoning as follows: Okay. Well, I think, although I didn’t state it earlier, I think one thing that needs to be stated on the record sort of to put this in perspective is that this rule, [5-803(b)(8)(D)], is within the rule that deals with hearsay exceptions. So, clearly we have to be talking about statements or we wouldn’t be talking about hearsay exceptions. If the body cam – if this rule only applied to the visual part of a body cam, it wouldn’t be a hearsay exception because there’s no language, there’s no statements, there’s no speaking.

All you would do is move it in as a movie or as a video. So, I think you have to look at the writing or the rule in the context of the rule itself, which is 5-803 is a rule dealing with hearsay exceptions, and therefore the rule has to be talking about statements, or else we wouldn’t be, we wouldn’t talking about hearsay to begin with. So, I think that, in my view, that 5-803(b)(8)(d) deals with the admissibility of statements that are electronically recorded on an officer[’s] body camera, and as long as those predicates are met, that this rule allows its admissibility. The following day, defense counsel renewed the motion for a mistrial on the grounds that the court’s interpretation of Md. Rule 5-803(b)(8)(D) was incorrect.

He 10 argued that the rules against hearsay were applicable to statements contained in the body camera recording. The court ruled that Md. Rule 5-803(b)(8)(D) was its own “separate and additional” exception to the hearsay rule and denied the defendant’s motion. DISCUSSION I. The Body Camera Recording Contentions Mr. Paydar contends that the circuit court committed reversible error when it admitted Officer Morgado’s body camera recording, which included Ms. Ariani’s out-of- court statements about the altercation on October 7, 2017. He argues that these statements were inadmissible hearsay, and that the court should have sustained defense counsel’s objection to their admission.

The State, conceding that Ms. Ariani’s statements were inadmissible hearsay, contends that any error in their admission was harmless beyond a reasonable doubt. Analysis “‘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.” Md. Rule 5-801(c). And “[e]xcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” Md. Rule 5- 802. “If one or more hearsay statements are contained within another hearsay statement, each must fall within an exception to the hearsay rule in order not to be excluded by that rule.” Md. Rule 5-805. A trial court “has no discretion to admit hearsay in the absence of a provision providing for its admissibility.

Whether evidence is hearsay is an issue of 11 law reviewed de novo.” Bernadyn v. State, 390 Md. 1, 8 (2005); see also Thomas v. State, 429 Md. 85, 98 (2012). Md. Rule 5-803(b)(8), commonly referred to as the “public records exception,” permits admission of hearsay statements contained within public records and reports. Under the exception, information in a public agency record of “matters observed pursuant to a duty imposed by law, as to which matters there was a duty to report” would ordinarily be admissible. Md. Rule 5-803(b)(8)(A)(ii).

But, under Md. Rule 5-803(b)(8)(C), a “record of matters observed by a law enforcement person is not admissible . . . when offered against an accused in a criminal action.” This rule, sometimes referred to as the “law enforcement exception,” “place[s] police narrative reports outside of the common law business records exception,” because “after-the-fact” narrative reports were considered less reliable due to the delay between when the observation is made and when the report is prepared. Minutes of January 8, 2016 Meeting of the Court of Appeals Standing Committee on Rules of Practice and Procedure (“Rules Committee”) at 15, 18 [hereinafter “Meeting Minutes”]. On December 13, 2016, the rules were amended to permit, under certain circumstances, the admission of certain electronic recordings made by body cameras or other recording devices to be “offered against an accused.”5 Md. Rule 5-803(b)(8)(D). 5 Court of Appeals of Maryland, Rules Order at 2, 106–07 (Dec. 13, 2016), available at https://www.mdcourts.gov/sites/default/files/rules/order/191ro.pdf [https://perma.cc/M4WF-W6VM]; see also Md. Rule 5-803(b)(8)(D) Rules Committee’s note to 2016 amendment (“[Md. Rule 5-803(b)(8)(D)] establishes requirements for the admission of certain electronic recordings made by a body camera worn by a law 12 Concerned that the “law enforcement exception” could be understood as categorically preventing the admission of body camera recordings, and thereby undermine a primary purpose for employing such cameras,6 the Rules Committee proposed, and the Court of Appeals adopted, the “body camera exception.” Md. Rule 5-803(b)(8)(D) permits a recording from a body camera worn by a law enforcement person to be “offered against an accused” if the recording: (1) is made contemporaneously; (2) is properly