Stevenson v. State

NAZARIAN, J. Shawn Stevenson was convicted in the Circuit Court for Baltimore City, after a jury trial, of first-degree murder, first-degree sexual offense, and two counts of wearing, carrying, or transporting a deadly weapon. On appeal, Mr. Stevenson challenges many of the circuit court’s evidentiary rulings and argues that there was insufficient evidence to support his convictions. We find no error in any of the circuit court’s rulings, hold that the evidence was sufficient, and affirm. I. BACKGROUND At about 2:30 p.m. on April 23, 2012, Noi Sipayboun was found dead by her sister Sonmai Sipayboun (“Sister”) in the bathtub at a home she owned with Mr. Stevenson at 5406 Hillburn Avenue in Baltimore City.

Ms. Sipayboun had sustained three stab wounds and 13 cutting wounds and also had “injuries to the vagina and on the anus which ... consisted of multiple bruises and tears and scratches.” At the time of Ms. Sipayboun’s death, she and Mr. Stevenson had been romantically involved for thirteen years. The two were never married, but Mr. Stevenson was the beneficiary of a life insurance policy insuring Ms. Sipayboun’s life. They had lived together for some time at 4425 Powell Avenue in Baltimore City with Sister and her two sons, but at the time ¹²⁸ of her death, Ms. Sipayboun was in the process of moving with the children to 5406 Hillburn Avenue, where she and Mr. Stevenson had lived previously. According to Sister, this was prompted by the tension between Ms. Sipayboun and Mr. Stevenson, who was angered by Ms. Sipayboun’s decision to engage in an intimate relationship with another man, James Potter.

During the week before Ms. Sipayboun’s death, Sister witnessed multiple violent altercations between Mr. Stevenson and Ms. Sipayboun and Ms. Sipayboun told her that Mr. Stevenson had tried to force her to have sex with him against her will. In the morning of the day Ms. Sipayboun was killed, Sister overheard Ms. Sipayboun and Mr. Stevenson arguing. At around noon, Ms. Sipayboun called Sister “and told [her] that [Mr. Stevenson] had called her up and told her that she had to get all her stuff out of [5406 Hillburn Avenue] because the house was under contract and we couldn’t move in there.” As a result, Ms. Sipayboun asked Sister if she would come over and help move her belongings out of the house. After the phone call was finished, Sister was unable to reach Ms. Sipayboun by phone despite trying on several occasions.

Sister did not have contact with Ms. Sipayboun again until she found her dead two hours later. Ms. Sipayboun’s cell phone was not with her when she was discovered; police recovered it hours later from a storm drain near the 3500 block of North Point Road in Dundalk. Baltimore City Police Detective Eric Ragland became the primary investigator into Ms. Sipayboun’s death. He arrived on the scene at 3:51 p.m. and spoke with Sister and one of Ms. Sipayboun’s neighbors.

Detective Ragland determined that Ms. Sipayboun’s injuries were not self-inflicted. He observed that there was no damage to the doors of the house, which suggested that Ms. Sipayboun was familiar with her perpetrator. Sister provided Detective Ragland with Mr. Stevenson’s cell phone number, and Detective Ragland promptly enlisted the assistance of another detective to attempt to locate Mr. Stevenson. ¹²⁹ Mr. Stevenson was eventually located and taken to police headquarters, where the police took pictures of his body as part of the investigation, including his swollen right hand. Detective Ragland also went to the store where Mr. Stevenson worked and determined that on the day that Ms. Sipayboun was killed, Mr. Stevenson arrived at work just before 8:00 a.m. and departed at 12:13 p.m., even though he had been scheduled to work from 5:00 a.m. to 3:00 p.m. on that date.

In Detective Ragland’s view, “[t]he evidence pointed to [Mr. Stevenson]” as the perpetrator. During the investigation, Baltimore City Police Detective John Jendrek obtained “call detail records” for cell phones belonging to Mr. Stevenson, Ms. Sipayboun, and Sister. Based on his analysis of these records, Detective Jendrek determined that Mr. Stevenson’s cell phone was located in the area of Hillburn Avenue, in close proximity to where Ms. Sipayboun was killed, between 1:30 p.m. and 2:45 p.m. on the day of the murder. In addition, Mr. Stevenson’s cell phone was located in close proximity to North Point Road in Dundalk at 3:19 p.m., where Ms. Sipayboun’s cell phone was found by police.

According to Mr. Stevenson, he left the Royal Farms store where he worked at around noon on the day Ms. Sipayboun was killed to drop off supplies to another Royal Farms store. While away from work, Mr. Stevenson went home and took a shower before going to the area of Golden Ring Mall to get a cake for his son’s birthday. Mr. Stevenson stated emphatically that he did not go to 5406 Hillburn Avenue on that day and was not responsible for Ms. Sipayboun’s death. Mr. Stevenson was charged on June 28, 2012 with Ms. Sipayboun’s murder and a number of other offenses.

At the conclusion of an eight-day jury trial, Mr. Stevenson was convicted of first-degree murder, first-degree sexual offense, and two deadly-weapon counts. He noted a timely appeal.

II

DISCUSSION Mr. Stevenson argues that the circuit court erred in several evidentiary rulings and asserts that there was insufficient ¹³⁰ evidence to support his convictions. 1 We disagree. A. The Circuit Court Did Not Err By Admitting Cellular Tower “Ping” Evidence Without A Frye-Reed Hearing. At trial, Detective Jendrek was qualified as an expert in the fields of cell phone “certification, detail analysis, mapping and location.” He testified that he had reviewed the “call detail records” for cell phones belonging to Mr. Stevenson, Ms. Sipayboun, and Sister and determined that Mr. Stevenson’s cell phone had registered with a cell phone tower located near Hillburn Avenue from 1:40 p.m. to 2:45 p.m. on the date Ms. Sipayboun was killed. In other words, Detective Jendrek testified that Mr. Stevenson’s cell phone was in the area where Ms. Sipayboun’s body was found during the time she was killed.

He testified further that Mr. Stevenson’s cell phone registered with a cell phone tower near North Point Road in Dundalk at 3:19 p.m. that same day, which was in close proximity to where Ms. Sipayboun’s cell phone was found by police later that day. In explaining how he was able to determine the cell phone tower with which Mr. Stevenson’s cell phone had registered, Detective Jendrek testified that he ¹³¹ determined which “cell site ... provided the cleanest, strongest available signal and as a general rule that is the cell site that’s the closest to the cell [phone].” Before trial, Mr. Stevenson made a motion in limine to exclude Detective Jendrek’s testimony because, in his view, it was not generally accepted in the scientific community “that the location of a single cellular tower can accurately locate [a] cellular phone.” Mr. Stevenson argued that the circuit court was required to conduct a Frye/Reed hearing to determine whether the technique the Detective employed to determine the location of his cell phone was generally accepted in the scientific community. In response, the circuit court found that “I’m not sure this is a Frye/Reed issue or that you’ve established it as a Frye/Reed [issue] simply by saying so,” and decided not to conduct a Frye/Reed hearing because Mr. Stevenson was not offering an expert who could dispute the acceptance of the Detective’s technique. Detective Jendrek’s testimony was admitted at trial over objection.

In his brief, Mr. Stevenson contends that “the trial court erred by not conducting a Frye/Reed hearing to test the prosecutor’s theory that a target cell phone can be located by the use of data identifying cell phone towers used during communication.” The State counters that a Frye/Reed hearing was unnecessary because “cell phone location evidence is not novel scientific evidence.” We agree and hold that the circuit court did not err in declining to hold a Frye/Reed hearing. Maryland Rule 5-702 governs the admissibility of expert witness testimony and provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a ¹³² sufficient factual basis exists to support the expert testimony. Id. “A trial judge has wide latitude in determining whether expert testimony is sufficiently reliable to be admitted into evidence, and his sound discretion will not be disturbed on appeal unless the decision to admit the expert testimony was clearly erroneous or constituted an abuse of discretion.” Montgomery Mut.

Ins. Co. v. Chesson, 399 Md. 314, 327 , 923 A.2d 939 (2007) (citations omitted). With regard to the admissibility of expert testimony regarding scientific evidence in particular, Maryland adheres to the standard set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), for determining the admissibility of scientific evidence and expert scientific testimony. Reed v. State, 283 Md. 374, 389 [ 391 A.2d 364 ] (1978) (adopting the Frye standard).

Under the Frye-Reed test, a party must establish first that any novel scientific method is reliable and accepted generally in the scientific community before the court will admit expert testimony based upon the application of the questioned scientific technique. Wilson v. State, 370 Md. 191, 201 [ 803 A.2d 1034 ] (2002). A trial court may take judicial notice of the reliability of scientific techniques and methodologies that are widely accepted within the scientific community. Reed, 283 Md. at 380 [ 391 A.2d 364 ].

A trial court also may take notice that certain scientific theories are viewed as unreliable, bogus, or experimental. Id. However, when it is unclear whether the scientific community accepts the validity of a novel scientific theory or methodology, we have noted that before testimony based on the questioned technique may be admitted into evidence, the reliability must be demonstrated. Wilson, 370 Md. at 201 [ 803 A.2d 1034 ].

While the most common practice will include witness testimony, a court may take judicial notice of journal articles from reliable sources and other publications which may shed light on the degree of acceptance vel non by recognized experts of a particular process or view. Reed, 283 Md. at 380 [ 391 A.2d 364 ], The opinion of an “expert” witness should be admitted only if the ¹³³ court finds that “the basis of the opinion is generally accepted as reliable within the expert’s particular scientific field.” Wilson, 370 Md. at 201 [ 803 A.2d 1034 ]. Id. Mr. Stevenson argues that the circuit court abused its discretion in declining to hold a Frye/Reed hearing to determine whether the cell phone location technique employed by Detective Jendrek was generally accepted in the scientific community.

But he offered no evidence or argument, in the circuit court or here, to support the contention that the technique employed by Detective Jendrek was “novel” or not generally accepted. He simply asserts that Detective Jen-drek’s testimony “should not have been admitted because it did not meet the standard applicable to expert testimony commonly referred to as the Frye/Reed standard” without providing any supporting evidence. Although it is true that a witness using telephone call detail data to locate someone must be qualified as an expert, see State v. Payne & Bond, 440 Md. 680 , 104 A.3d 142 (2014), that does not mean that there is any dispute about the general acceptance of the underlying techniques. The Frye/Reed standard is only applicable to determinations of the admissibility of novel scientific evidence.

See Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405 , 431 n. 18, 914 A.2d 113 (2007) (“The [.Frye/Reed ] standard continues to be the standard by which Maryland trial courts determine the admissibility of novel scientific evidence.” (citation omitted) (emphasis added)); CSX Transp., Inc. v. Miller, 159 Md.App. 123, 186-87 , 858 A.2d 1025 (2004) (“It is only with respect to new and novel scientific techniques that a [Frye/Reed ] assessment must be made ... What is contemplated [by Frye/Reed ] are new, and arguably questionable, techniques such as lie detector tests, breathalyzer tests, paraffin tests, DNA identification, voiceprint identification, as in the Reed case itself, and the use of polarized light microscopy to identify asbestos fibers.” (emphasis added)). The cell phone location evidence at issue here is not novel scientific evidence, so Frye/Reed is not applicable. ¹³⁴ Our decision in Wilder v. State, 191 Md.App. 819 , 991 A.2d 172 (2010), is instructive on this point. In that case, we were asked to determine whether cell phone location evidence required the presentation of expert testimony.

Id. at 847, 991 A.2d 172 . Although the issue of whether a Frye/Reed hearing was required to admit such evidence was not specifically before us, “[w]e recognize[d] that cellular telephone technology has become generally understood [and] the use of telephone company cell phone records for investigative purposes has been noted in Maryland cases.” Id. at 367, 991 A.2d 172 (citations omitted). We even went so far as to endorse a procedure for admitting cell phone location evidence: “[W]e believe that the better approach [for admitting cell phone location evidence] is to require the prosecution to offer expert testimony to explain the functions of cell phone towers, derivative tracking, and the techniques of locating and/or plotting the origins of cell phone calls using cell phone records.” Id. at 365, 991 A.2d 172 ; see also Coleman-Fuller v. State, 192 Md.App. 577, 619 , 995 A.2d 985 (2010) (“[Cell phone location] evidence may only be introduced through a witness qualified as an expert.”). That is precisely how the State offered cell phone location evidence against Mr. Stevenson.

Moreover, “the use of cell phone location records to determine the general location of a cell phone has been widely accepted by numerous federal courts.” United States v. Jones, 918 F.Supp.2d 1, 5 (D.D.C. 2013) (citations omitted). In the absence of any evidence that that the cell phone location technique employed by Detective Jendrek was not generally accepted in the scientific community, Chesson, 399 Md. at 327 , 923 A.2d 939 (“[T]he most common practice [for a Frye/Reed hearing] will include witness testimony.” (emphasis added)), the circuit court did not err in declining to conduct a Frye/Reed hearing here. B. The Circuit Court Did Not Abuse Its Discretion In Qualifying Detective Jendrek As An Expert Witness. During trial, the State called Detective Jendrek as a witness and sought to have him qualified as an expert in the ¹³⁵ area of “call detail record analysis, call detail interpretation and cell site mapping.” He testified that for the last five years, he had been assigned to the Advanced Technology Team, “the unit that handles — assists any detective or detective unit that needs help with cell phone information, be it obtaining the records from the provider or finding cell phones.” He testified that during his time with the Advanced Technology Team, and during a previous stint with the DEA, he had received an extensive amount of training regarding cell phones and call detail records.

Detective Jendrek attended several courses regarding call detail records, which “included two separate classes that were related directly to mapping of cell site and call detail record interpretation and analysis.” From 2009 to the time of trial, Detective Jendrek was invited to teach numerous classes about call detail record analysis. And significantly, he testified that he had worked on 1,500 cases involving cell phone location. Based on this testimony, the circuit court, over objection, accepted Detective Jendrek as an expert in the field of cell phone location: The Court upon review of the testimony and voir dire of the witness, based on his background, training and experience, his teaching, as well as his practical experience, the Court accepts the witness as an expert in the area and will allow him to testify in the area of cellular detail certification, detail analysis, mapping and location. Mr. Stevenson argues that the circuit court erred in qualifying Detective Jendrek as an expert witness.

In his view, Detective Jendrek should not have been qualified as an expert witness because (1) the Detective “had not studied telecommunications or network engineering in college[,] [rjather, his undergraduate degree was in history;” (2) “[h]e had not published any articles involving the subjects for which he was offered as an expert;” and (3) “[ajll of his experience was related to law enforcement.” Md. Rule 5-702 directed the circuit court, in determining whether to admit expert witness testimony, to determine “whether the witness is qualified as an expert by knowl ¹³⁶ edge, skill, experience, training, or education.” Id. “It is well settled in Maryland that Rule 5-702 vests trial judges with wide latitude in deciding whether to qualify a witness as an expert or to admit or exclude particular expert testimony.” Massie v. State, 349 Md. 834, 850-51 , 709 A.2d 1316 (1998) (citations omitted). “The admissibility of expert testimony is within the discretion of the trial court, and therefore, the circuit court’s decision to admit expert testimony ‘will seldom constitute a ground for reversal.’ ” Donati v. State, 215 Md. App. 686, 742 , 84 A.3d 156 cert. denied, 438 Md. 143 , 91 A.3d 614 (2014) (quoting Bryant v. State, 393 Md. 196, 203 , 900 A.2d 227 (2006)). “The trial court is free to consider any aspect of a witness’s background in determining whether the witness is sufficiently familiar with the subject to render an expert opinion, including the witness’s formal education, professional training, personal observations, and actual experience.” Massie, 349 Md. at 851 , 709 A.2d 1316 (citations omitted). And “[t]o qualify as an expert, one need only possess such skill, knowledge, or experience in that field or calling as to make it appear that [the] opinion or inference will probably aid the trier [of fact] in his search for the truth.” Donati, 215 Md.App. at 742 , 84 A.3d 156 (citations omitted). We find no abuse of discretion in the circuit court’s conclusion that Detective Jendrek qualified as an expert through his experience, training, and education. The Detective described his extensive first-hand training and experience in analyzing cell phone call detail data, including: (1) training related to cell phones and call detail records from DEA and the Baltimore Police Department; (2) several courses, including a 40-hour course taught by the National Technical Investigators’ Association; (3) lectures he had given regarding cell phone location techniques; and (4) 1,500 cases worth of direct experience.

Although Detective Jendrek’s undergraduate degree was in history and he had not published any articles involving cell phone location, “the qualifications he did have supported the circuit court’s decision to accept him as an expert witness,” Donati, 215 Md.App. at 743 , 84 A.3d 156 and amply so. ¹³⁷ C. The Circuit Court Did Not Abuse Its Discretion In Qualifying Detective Allen As An Expert Witness. The State also called Baltimore City Police Detective Kevin Allen and sought to have him qualified as an expert witness in the field of digital forensics. Detective Allen testified that (1) he had 20 years of police experience; (2) had worked in the field of cell phone forensics specifically from 2009 to 2013; (3) had taken classes and received certifications “[w]ith the Department of Homeland Security and Mobile Device Investigations, CMD Labs, which is a certification for Cellebrite National White Collar Crimes Association, NW3C, BK Forensics for digital mobile seizure, Image Scan, which is with the FBI, and a host of other training;” (4) had been qualified as an expert witness in the field of digital forensics on a prior occasion; and (5) had analyzed over 1,000 cell phones. Over objection, the circuit court qualified Detective Allen as an expert in the field of digital forensics, and he testified that he had extracted data from Ms. Sipayboun’s cell phone and, utilizing computer software, generated a report revealing the data stored on the cell phone.

The report was later admitted into evidence by the State and used to adduce testimony from other witnesses about messages they had sent her. Mr. Stevenson claims that the circuit court abused its discretion in qualifying Detective Allen as an expert because “Detective Allen had not received any degrees in the fields of telecommunications, network technology, electronics or radio frequency; his training was limited to mobile devices; he had been qualified as an expert witness only once before the Circuit Court for Baltimore City.” We disagree. We recently affirmed a circuit court’s decision to qualify a witness with similar credentials as an expert in the field of digital forensics in Donati, 215 Md.App. at 741-43 , 84 A.3d 156 . As here, the witness’s experience in that case primarily took the form of on-the-job training and experience: Detective Heverly testified that he had completed more than 240 hours of training in computer forensics, as a result ¹³⁸ of which he had been “certified by the Department of Defense as a computer forensic examiner.” He was a member of the “National White Collar Crime Center,” the “International Association of Computer Investigative Specialists,” the Department of Defense “Cyber Investigative Training Academy,” and he was a deputized member of the “United States Secret Service, Washington Metro Electronic Crimes Task Force.” In addition, he took a Windows Forensic Examinations course and a mobile forensic examination course for cell phones, GPS, and other mobile devices.

Id. at 742-43 , 84 A.3d 156 . We held that “[although [he] did not have post-graduate degrees in computer science, and he had not testified previously, the qualifications he did have supported the circuit court’s decision to accept him as an expert witness.” Id. at 743 , 84 A.3d 156 . Detective Allen has taken classes and received multiple certifications in the field of digital forensics. Id.

In addition, and unlike the witness in Donati , Detective Allen had been qualified as an expert witness in the field of digital forensics on a prior occasion, id. at 743 , 84 A.3d 156 and had analyzed over 1,000 cell phones. His lack of degrees in the fields of telecommunications did not disqualify him from serving as an expert, and the court acted within his discretion in qualifying him here. D. Mr. Stevenson Failed To Preserve His Contention That The Circuit Court Erroneously Admitted Inadmissible Hearsay. At trial, Lashawn Stevenson, Mr. Stevenson’s niece, was called to testify on behalf of the State.

During the State’s direct examination of Ms. Stevenson, the following exchange took place: [PROSECUTOR]: Okay. Do you recall telling the police that your father[, Mr. Stevenson’s brother,] said [Ms. Sipay-boun] just got cut up? ¹³⁹ [MS. STEVENSON]: I — I think so. I remember so.

I think I said that. I don’t know remember [sic]. I’m sorry. [THE COURT]: Next question. [PROSECUTOR]: Did your father say that [Ms. Sipay-boun] had just been cut up? [DEFENSE COUNSEL]: Objection. She’s harassing the witness. [THE COURT]: Approach, please.

(Counsel and Defendant approached the bench, and the following occurred:) [THE COURT]: What’s your objection? [DEFENSE COUNSEL]: I thought that she just asked a question and she wasn’t sure that in terms of what she said. And again, she hasn’t examined her on the — on the statement probably, and at times I don’t even know what page she’s on. What’s— [THE COURT]: Well, there are — there are two things happening is is [sic], you know, obviously, there’s something in that statement you want to get to but it’s sometimes better to go through some things before you jump 10 foot ahead. I’ll allow the question as to whether or not you recall telling the police that your father said.

Okay? And— [PROSECUTOR]: Thank you. [DEFENSE COUNSEL]: And I think she’s already responded to that. [THE COURT]: I’m going to allow the question so that we can move on. [DEFENSE COUNSEL]: Okay. [THE COURT]: I’m confused. Then at that point we’re all in the same place. Let’s move along, please.

(Counsel and Defendant returned to the trial tables, and the following occurred in open court:) [THE COURT]: I understand the objection. In light of the prior response, the Court will allow the question. [PROSECUTOR]: Do you recall telling the police that your father said that [Ms. Sipayboun has] been cut? ¹⁴⁰ [DEFENSE COUNSEL]: Objection for reasons I already stated to you. [THE COURT]: Objection is — is noted. Overruled. I’ll allow you to answer that question.

Do you recall saying that? That your father said— [MS. STEVENSON]: Yes. Yes.

Mr. Stevenson argues that the circuit court erred in allowing Ms. Stevenson to testify that her father, Mr. Stevenson’s brother, had told her that Ms. Sipayboun had been cut, which he says is inadmissible hearsay. The State counters that Mr. Stevenson failed to preserve his objection for appellate review because Mr. Stevenson objected only on the grounds that the prosecutor was harassing the witness. We agree. Objections to the admissibility of evidence are governed by Maryland Rule 4-323, which provides, in relevant part: (a) An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent.

Otherwise, the objection is waived. The grounds for the objection need not be stated unless the court, at the request of a party or on its own