Santiago v. State

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ. Getty, J. ⁷⁹⁸ *¹⁴³ In this case, we are asked to determine whether the trial court erred in admitting the expert opinion testimony of Allen Hagy ("Mr. Hagy"). Additionally, we must determine whether the trial court erred by admitting evidence of Respondent Isa *¹⁴⁴ Manuel Santiago's ("Mr. Santiago") silence during an investigation by his automobile insurer. For the following reasons, we conclude that the trial court did not err in admitting the expert testimony under Maryland Rule 5-702(3).

We also hold that the trial court did not err when it admitted Mr. Santiago's failure to submit to an examination under oath for his voluntary automobile insurance claim as evidence of Mr. Santiago's consciousness of guilt because the admission of this failure was relevant. Accordingly, we affirm the judgment of the Court of Special Appeals. BACKGROUND A. The Murder and Investigation During the morning of Friday, June 13, 2003, LaToya Taylor ("Ms. Taylor") told a coworker that during her lunch break she was going to meet with someone who owed her money. Security camera footage captured Ms. Taylor leaving her employment in Washington, D.C. and stepping into a "box-type black truck." Ms. Taylor did not return from her lunch break.

The security footage was the last record of Ms. Taylor seen alive. Six days later, Ms. Taylor's body, wrapped in trash bags and with a single gunshot wound to the back of her head, was found in a field in Charles County, Maryland. In the early morning hours on Saturday, June 14, 2003, police were called to a vehicle fire on Spring Road in Northwest Washington, D.C. Police officers found a black Jeep Cherokee, registered to Mr. Santiago, engulfed in flames at the scene. Police officers also discovered a gasoline container next to the Jeep Cherokee.

William Walker ("Mr. Walker") told police that he witnessed a car that stopped next to the parked Jeep Cherokee and saw a man exit the car on the passenger side. The man then walked "up to the" Jeep Cherokee and "either went in or was at the car door." Mr. Walker stated that the Jeep Cherokee "eventually caught on fire" and the other vehicle then sped off. Following an investigation, police concluded that the fire had been intentionally set with the use of gasoline. Additionally, the investigation established *¹⁴⁵ that the ignition of the Jeep Cherokee had not been tampered with which led police to the conclusion that the Jeep Cherokee must have been driven to its location by using the vehicle's key.

At approximately noon on June 14, 2003, Mr. Santiago contacted police and reported that his Jeep Cherokee had been stolen. Lieutenant Robert Black, a Prince George's County police officer, interviewed Mr. Santiago at his home about the stolen vehicle. Mr. Santiago stated that he had returned to his home from a nightclub at ⁷⁹⁹ 3:00 a.m. and had parked the Jeep Cherokee on the street near his residence. Mr. Santiago recalled that he did not notice his Jeep Cherokee missing until he took the trash out.

During the interview, Lieutenant Black noted that Mr. Santiago was in contact with his automobile insurance agent and that Mr. Santiago's trash cans were still located inside the home. During the investigation into Ms. Taylor's disappearance, police acquired information that led them to believe Mr. Santiago was involved. Ms. Taylor and Mr. Santiago had an extensive and turbulent relationship. Kimberly Smith ("Ms. Smith") recounted that Ms. Taylor and Mr. Santiago met as teenagers.

Although they never married, Ms. Taylor and Mr. Santiago were romantically associated for approximately a decade prior to Ms. Taylor's disappearance. Ms. Smith would later testify that Mr. Santiago and Ms. Taylor's lengthy relationship included acts of domestic violence perpetuated by Mr. Santiago. At the time of her death, Ms. Taylor had a civil action pending against Mr. Santiago in which she sought child support. Mr. Santiago disputed paternity in this matter and later told police officers "his wife did not know he was the father of [Ms. Taylor's] youngest child" although Mr. Santiago asserted that "they [Ms. Taylor and Mr. Santiago] had resolved the child support issues." A court hearing to resolve the child support issues had been scheduled for June 18, 2003.

Detective Charles Seward spoke to Mr. Santiago about Ms. Taylor's disappearance on the evening of June 14, 2003. Mr. Santiago stated that on the morning of Ms. Taylor's disappearance, *¹⁴⁶ he and Ms. Taylor had spoken on their cellular phones. Mr. Santiago contended that the conversation between the two related to the child support hearing. After this call with Ms. Taylor, Mr. Santiago stated that he took a nap until the early afternoon, ran errands with his wife, went to dinner with his wife in Baltimore, and then headed to a nightclub in Washington, D.C. following dinner.

During the interview, Mr. Santiago asked Detective Seward to speak quietly because Mr. Santiago's wife was sleeping and she disliked overhearing discussions about Ms. Taylor because the three were involved in a "love triangle." Other evidence contradicted Mr. Santiago's version of the events on the date of Ms. Taylor's disappearance. Mr. Santiago's children's daycare provider would later recall that at 4:27 p.m., Mr. Santiago called and told the daycare that he would not be able to pick up his children due to an emergency. Mr. Santiago's wife would later retrieve the children. Surveillance video from a Bank of America branch in Prince George's County showed that Mr. Santiago used the bank's ATM at 4:31 p.m.

The surveillance video also showed Mr. Santiago exiting his black Jeep Cherokee. John Naumoff ("Mr. Naumoff") stated that at approximately 5:38 p.m., he saw a dark Jeep Cherokee emerge from a forested area close to where Ms. Taylor's body was found in Newburg, Charles County. Because Mr. Naumoff worked as a service manager at a car dealership, he was able to confidently identify the car as a Jeep Cherokee. He was also able to specify the time when he had seen the dark Jeep Cherokee because Mr. Naumoff's E-ZPass clocked in at a nearby toll booth.

Mr. Santiago called a friend, Chiquita Jenkins ("Ms. Jenkins"), at approximately 5:50 p.m. At trial, Ms. Jenkins testified that she believed Mr. Santiago was travelling in a car while they spoke on the phone. At about 7:30 p.m., Mr. Santiago and his wife stopped by the home of his friend, Paris Jefferson ("Mr. Jefferson"), even though Mr. and Mrs. Santiago knew Mr. Jefferson was not home. The Santiagos visited with Mr. Jefferson's son for *¹⁴⁷ approximately ⁸⁰⁰ thirty minutes before departing.

Mr. Jefferson's home was located on Spring Road in Northwest Washington, D.C. Jamal Wilson ("Mr. Wilson") stated that he had seen Mr. Santiago at around 3:27 a.m. on June 14, 2003, outside of a bar in Northwest Washington, D.C. Mr. Wilson testified that Mr. Santiago was riding a motorcycle at that time. Although Mr. Santiago's Jeep Cherokee was badly damaged in the fire, police were able to find grass fragments within the undercarriage of the vehicle which were consistent with grass found in the field where Ms. Taylor's body was found. Additionally, police recovered carpet fibers on Ms. Taylor's clothing which matched the automobile carpet fiber samples from the Jeep Cherokee. At trial, the State's theory was that Mr. Santiago killed Ms. Taylor on June 13, 2003 after he used the ATM in Prince George's County at 4:31 p.m. and before the 5:50 p.m. call to Ms. Jenkins.

In support of its timeline, the State planned to introduce Mr. Santiago's cell phone records from June 13, 2003 to show that Mr. Santiago was located in Charles County at the approximate time of Ms. Taylor's murder. B. First and Second Trials On May 25, 2004, the State indicted Mr. Santiago in the Circuit Court for Charles County for the murder of Ms. Taylor and other crimes associated with the murder. Mr. Santiago's first trial ended in a mistrial on February 28, 2006 prior to any evidence being presented. Mr. Santiago's second trial began the next day, March 1, 2006.

During this trial, the jury acquitted Mr. Santiago of first-degree murder but convicted him of second-degree murder, use of a handgun in the commission of a crime of violence, and being a felon in possession of a firearm. Following sentencing for these convictions, Mr. Santiago noted an appeal. The Court of Special Appeals, in an unreported opinion, reversed the judgment of the trial court due to the failure to either hearken or poll the jury. Santiago v. State , 183 Md. App. 770 (2008).

The State *¹⁴⁸ filed a petition for writ of certiorari, which this Court granted. State v. Santiago , 407 Md. 529 , 967 A.2d 182 (2009). In our decision, we held that "a jury verdict, rendered and announced in open court, that is neither polled nor hearkened is not properly recorded and is therefore a nullity" and we remanded the case to circuit court for a new trial. State v. Santiago , 412 Md. 28 , 32, 42, 985 A.2d 556 (2009).

C. Third Trial The State, on remand, charged Mr. Santiago with first-degree murder in addition to the same charges for which he was convicted in the 2006 trial. Mr. Santiago filed a motion to dismiss the first-degree murder charge, arguing that the re-charging was a violation of double jeopardy. The circuit court denied the motion, and Mr. Santiago appealed the judgment. In March 2013, the Court of Special Appeals held that, although the 2006 jury verdicts were nullities due to the failure to hearken or poll, the acquittal of first-degree murder barred re-prosecution.

Santiago v. State , 210 Md. App. 708 (2013). The State did not file a petition for writ of certiorari. In 2015, the prosecution presented its case for a third time and a jury in the Circuit Court for Charles County convicted Mr. Santiago on all remaining counts. The circuit court sentenced Mr. Santiago to a thirty-year prison term for second-degree murder, a twenty-year consecutive prison term for use of a handgun, and a five-year cumulatively consecutive prison term for illegal possession of a firearm.

The collective prison term totaled fifty-five years. Mr. Santiago appealed his conviction ⁸⁰¹ to the Court of Special Appeals, which unanimously affirmed the judgment of the circuit court in an unreported opinion. Santiago v. State , No. 1694, Sept. Term, 2015, 2017 WL 347604 , at ¹ (Md. Ct. Spec. App. Jan. 24, 2017).

Mr. Santiago then petitioned this Court for a writ of certiorari, which we granted on May 9, 2017. Santiago v. State , 453 Md. 9 , 160 A.3d 547 (2017). Mr. Santiago presents two questions for our review: *¹⁴⁹ 1. Did the trial court err in finding a sufficient factual basis to admit testimony from the State's cellular communication expert, Allen Hagy? 2.

Did the trial court err in admitting evidence of Mr. Santiago's silence during an investigation by his automobile insurer that was related to and concurrent with the police investigation in this case? DISCUSSION A. Admissibility of Expert Testimony i. Testimony of Allen Hagy Allen Hagy was Cingular's senior network engineer for the Maryland, Virginia, West Virginia, and Washington, D.C. region prior to Mr. Santiago's second trial. Cingular's fraud and billing department was responsible for producing cellular phone records in response to court orders or subpoenas.

The fraud and billing department then sent those records to the network engineer responsible for the local market referenced in the records. Because Mr. Santiago's phone calls occurred in Mr. Hagy's geographic market, his job was to validate Mr. Santiago's records sent from the fraud and billing department. Using phone records, a cellular expert may be able to approximate the location of a mobile phone call using "historical cell site analysis." See State v. Payne , 440 Md. 680 , 696-97, 104 A.3d 142 (2014). When compiling the historical cell site analysis, call detail records ("CDRs"), which list calls to and from a phone and the towers to which a phone connected for calls, and tower indices, which list the locations of cell towers, are paramount factors.

CDRs assign three data points for each call: (1) the "switch" through which the call was routed, (2) the particular "cell site" within the switch's control that connects the call to a network, and (3) the "radio channel" at the cell site which carries the call through the airwaves. In 2003, there were four Cingular switches in the Washington D.C./Baltimore region: Switch 1 controlled Virginia and West Virginia, Switch 2 controlled southern Maryland, Switch 3 controlled northern Maryland, and Switch 4 controlled Washington, D.C. Within *¹⁵⁰ each switch, there were multiple cell sites, and each cell site contained multiple radio channels. In June 2005, Mr. Hagy received Mr. Santiago's cell phone records from Cingular's fraud and billing department for the day of Ms. Taylor's disappearance. Mr. Hagy did not perform the historical cell site analysis but did analyze the relevant CDRs.

During his review, Mr. Hagy discovered "geographical inconsistencies" between several call entries, leading him to believe that the CDRs were inaccurate. These "geographical inconsistencies" did not come as a surprise to Mr. Hagy as Cingular had undergone a "rehoming" process in late 2003 and 2004. Mr. Hagy testified that during a rehoming process, cell towers and switch numbers were reassigned due to growth or reduction in cellular usage in certain geographical areas. Instead of the subpoenaed records in 2005 being retrospective to account for the rehoming process, it was Mr. Hagy's belief that the fraud and billing department sent Mr. Hagy switch information based upon the company's latest data which included the reassigned switch numbers.

While analyzing the subpoenaed reports, the "geographical ⁸⁰² inconsistencies" Mr. Hagy found showed that some of the cell sites listed on the CDRs contained radio channel numbers that did not exist. Additionally, Mr. Hagy noted that nine calls placed from Mr. Santiago's phone only minutes apart were routed through a northern Maryland cell site and a Virginia cell site. Because connection to a cell site is predicated upon the strongest available signal and because Mr. Santiago could not have travelled from Northern Maryland to Virginia in a matter of minutes, Mr. Hagy concluded that the data provided must be flawed. After reaching this conclusion, Mr. Hagy initiated a "data dump" in which he utilized a software program to identify Cingular's network makeup at the time of Mr. Santiago's 2003 calls.

Through this "data dump," Mr. Hagy was able to create a comprehensive spreadsheet ("2003 Index") that identified the corresponding switches, cell sites, and radio channels for the Washington D.C./Baltimore region at the time of the murder. This 2003 Index then served as the basis of Mr. *¹⁵¹ Hagy's "engineering analysis," in which Mr. Hagy made corrections to the geographic mistakes in Mr. Santiago's CDRs. In his corrections, Mr. Hagy assumed that the cell sites and radio numbers were accurate in the CDRs and used the 2003 Index to examine whether a switch was actually connected to a particular cell site and radio. Mr. Hagy testified that he relied on his experience managing Cingular's network and his personal knowledge of the cell site locations in adjusting the CDRs.

Mr. Hagy concluded that if he modified the Switch 3 calls (northern Maryland) to Switch 2 calls (southern Maryland), the cell sites, radio numbers, and switches would be consistent. By adjusting the Switch 3 calls to Switch 2 calls, the combination of switch, cell site, and radio channel numbers positioned Mr. Santiago in the vicinity of where Ms. Taylor's body was found on the night of June 13, 2003. More specifically, the CDRs modified by Mr. Hagy showed that between 5:00 p.m. and 6:30 p.m. that day, nine phone calls were made to or from Mr. Santiago's phone which all connected to cell sites near where Ms. Taylor's body was eventually found. At the second trial in 2006, Mr. Hagy stated that he had the 2003 Index with him while testifying though the 2003 Index was not introduced into evidence.

At this trial, defense counsel did not seek to obtain a copy of the 2003 Index. 1 Mr. Hagy destroyed the 2003 Index sometime after the 2006 trial but prior to the 2015 trial. Before Mr. Santiago's third trial in 2015 commenced, Mr. Santiago moved to exclude Mr. Hagy's testimony and "any evidence or argument that purport[ed] to alter" Mr. Santiago's CDRs on the basis that the 2003 Index was no longer available. Mr. Santiago argued that Mr. Hagy's testimony did not contain a "sufficient factual basis to be helpful to a jury" because Mr. Hagy did not publish his "engineering analysis" and Mr. Hagy lacked the ability to reproduce the analysis and testing that was the crux of the 2003 Index. Additionally, Mr. Santiago argued that Mr. Hagy's methodology was not a reliable basis for expert testimony. *¹⁵² In response, the State contended that there was an adequate factual basis for Mr. Hagy's expert testimony even though the 2003 Index had been destroyed.

The State proffered that Mr. Hagy would testify about his methodology regarding the CDRs, the "data dump," and how Cingular had utilized databases and channel lists similar to the one Mr. Hagy produced. As ⁸⁰³ an example of this point, the prosecution provided a channel list spreadsheet from 2001 that Mr. Hagy had previously created. The State argued that the fact that the 2003 Index was unavailable affected the weight, not the admissibility, of Mr. Hagy's testimony: [A]gain, when you look at the call detail records, as the defense wants to stand in and of themselves and on their own, they don't work. If they want to put an expert up there to say they work, that's fine.

They can certainly do that. If they want to challenge [Mr. Hagy] as to why it is he is changing the records, that's fine. They can certainly do that. And, they can bring up the fact that the database doesn't exist.

They can bring up all of that in cross-examination.... We did not seek to exclude their cellular expert. He is perfectly entitled to testify as to the records as he sees them, and as to the issues he potentially sees with [Mr. Hagy's] analysis. That's going to go before the jury.

And, ultimately, it's a matter of weight for [the jury] in terms of what it is that they're going to do with [Mr. Hagy's testimony], and how they're going to interpret it. The trial court asked the State to provide additional information about how and why the 2003 Index had been destroyed. The State asserted that between 2006 and 2015, the 2003 Index had been destroyed during the ordinary course of Cingular's business, 2 which included the removal of Mr. Hagy's computers and paper files. The trial court ruled in favor of Mr. Santiago finding that although the State had not acted in bad faith and that Mr. *¹⁵³ Santiago's prior defense team had an opportunity to receive a copy of the 2003 Index during the 2006 trial, the 2003 Index was essential to Mr. Hagy's testimony.

The trial court specifically stated that allowing Mr. Hagy's testimony would "not [be] fair to the defense." After this ruling, the State filed a motion for reconsideration of the trial court's decision. In support of its motion, the State asked Mr. Hagy to testify about his engineering analysis and the corrections to Mr. Santiago's CDRs. The State argued, regarding expert opinion under Rule 5-702, that the bar for the factual basis that is necessary for an expert to testify is quite frankly very low. You can use almost anything as I said.

You can use inadmissible hearsay. You can use admissible hearsay. Opinions of others in certain circumstances.... But we're not even going that far here.

Everything that [Mr. Hagy] had testified to today would be admissible. And that forms a factual basis for his testimony. The trial court vacated its prior ruling and concluded that Mr. Hagy's expert testimony was admissible. In its explanation, the trial court determined that the question surrounding Mr. Hagy's testimony was a question of "weight not its admissibility." Following his convictions in the third trial, Mr. Santiago appealed to the Court of Special Appeals.

In an unreported opinion, the Court of Special Appeals found that Mr. Hagy's "substantial experience" and "specialized knowledge," combined with "a logical reasoning process" to compare Mr. Santiago's CDRs with independent analysis clearly demonstrated that there was a sufficient factual basis for Mr. Hagy's expert opinion testimony. Santiago , 2017 WL 347604 , at ⁹. As such, the Court of Special Appeals affirmed the trial court's decision on reconsideration regarding Mr. Hagy's testimony. Id. at ¹⁵. ⁸⁰⁴ ii.

Analysis This Court has held that "the admissibility of expert testimony is a matter largely within the discretion of the trial *¹⁵⁴ court, and its action in admitting or excluding such