Washington v. State

IRMA S. RAKER, Judge, (Retired, specially assigned). In this criminal case, we address the requirements of an adequate evidentiary foundation for the admission of a surveillance videotape. We shall reverse because the trial court erred in admitting the tape without an adequate foundation, and the error was not harmless beyond a reasonable doubt. I. Rory Washington was indicted by the Grand Jury for Baltimore City for the offenses of attempted murder in the first degree, attempted murder in the second degree, assault ⁶⁴⁵ in the first degree, assault in the second degree, and three handgun violations.

A jury found him guilty of assault in the first degree, assault in the second degree, and the three handgun violations. The jury acquitted him of attempted first degree murder and deadlocked on the attempted second degree murder charge. 1 The court sentenced him to a term of incarceration of twenty years on the first degree assault charge and fifteen years for use of a handgun in the commission of a crime of violence, three years for illegally carrying a handgun, and five years for possession of a regulated firearm, to be served concurrent with the twenty-year sentence for assault. The following facts were elicited during the trial. During the evening of June 23, 2005, Jermaine Wright went to Jerry’s Bar, a bar and liquor store located at 604 Poplar Grove Street in Baltimore City.

Wright and petitioner, Washington, got into an argument, Washington left the bar, then returned about ten minutes later and asked Wright to step outside. At approximately 10:00 p.m., Wright, unarmed, followed him outside and was shot in the stomach. A bullet lodged in his spinal cord, resulting in an L3 spinal cord injury. Police arrived on the scene and found narcotics on Wright’s person and recovered a pink hat belonging to Wright.

The police questioned Wright on the night of the shooting, and Wright said that he did not know who shot him and that he did not see the weapon. He described his assailant as a black male, with thick build, wearing a white t-shirt. When shown photographic arrays containing photos of petitioner, Wright either refused to view the array or said that he needed additional time. Petitioner was arrested and indicted for the shooting.

At trial, Wright identified petitioner as the person who shot him. He testified that he knew petitioner for three years. He acknowledged that initially he “hadn’t told the police nothing,” and explained that the reason he did not identify Washington ⁶⁴⁶ as the shooter was that he wanted to handle it himself. He testified as follows: “Because I wanted — I wanted him to still be out there because, you know, I was going to take advantage of myself.

I was going to get him.... I was so mad and angry I wanted — you know, I was going to deal with it myself.” The State introduced into evidence a videotape recording made by surveillance cameras inside and outside the bar. According to the owner of the bar, David Kim, the camera system was an eight-camera digital video security system, with six cameras inside and two cameras outside the bar, that recorded “24 hours a day.” Mr. Kim testified that the police called him after the incident on June 23, 2005 and requested to see the surveillance tapes. Kim said that a technician came out the next day to “print” a CD with surveillance footage that Kim turned over to the police.

The CD had been compiled from the various cameras and was transferred to a VHS tape. 2 Detective Carlos Vila testified that he received a copy of the tape, and after watching it, developed a suspect. Defense counsel objected to the admissibility of the tape, arguing lack of foundation to establish authenticity of the original CD-ROM, stating as follows: “I don’t think it’s — there’s enough for a business record. And what Mr. Kim — the only thing Mr. Kim said it was computer generated and based on Detective Vila’s testimony we have an unknown person who actually did the copying. Apparently Mr. Kim does not know how to do that.

The copying of — the copying from the system onto the CD-ROM or CD — a DVR or whatever. So I think there’s a hole that’s not filled.” The State argued that even if the tape was not authenticated under the business records exception, it was authenticated under the “silent witness” rule, based upon Kim’s testimony. ⁶⁴⁷ The court overruled the objection and admitted the tape into evidence. The State played the tape before the jury, pausing it and asking Detective Vila questions about what he could see on the tape. The State showed Detective Vila actual still photographs of the video footage and asked him to describe each of the photographs and identify anything of significance in them.

Defense counsel objected to Detective Vila’s testimony, arguing that by describing his observations of the still photographs, Detective Vila implicitly identified petitioner as one of the individuals pictured in the photographs. The court overruled the objection. Detective Vila testified that the tape depicted several individuals sitting at the bar and explained that one of the individuals wore blue jeans and a t-shirt with a rag or t-shirt on his head. He testified that another photograph depicted the same individual wearing a white t-shirt, a bandana or t-shirt on his head, and a watch on his left wrist.

A later photograph depicted the same individual, but without the head gear. Finally, he testified that a photograph showed an individual in a pink hat falling to the ground and the individual wearing a white t-shirt and blue jeans at a distance. The State called several witnesses who had been at the bar on the evening of the shooting. Some of those witnesses proved challenging to the State and were not particularly cooperative.

Charles Burrell, an employee of the bar, testified that on the night of the shooting he broke up a fight between Wright and another patron of the bar. Afterward, Burrell went to the corner to pick up some food and, while he was gone, he heard a shot ring out. He returned to the bar and saw Wright laying injured on the ground. Burrell testified that petitioner usually wore a white t-shirt or towel on his head.

Although the State called Burrell as a witness, based apparently on a statement he gave to the police the night of the shooting stating that he saw petitioner in the bar, Burrell insisted that he did not see petitioner in the bar on the night of the shooting. ⁶⁴⁸ Gregory Jennings, a person who helped out at the bar, testified that the night of the shooting, he observed Wright in an argument with several other bar patrons, including petitioner. Jennings followed petitioner and Wright outside the bar where he observed the two continue their argument, but then Jennings returned inside the bar. Jennings went to the police station on the night of the shooting, and after viewing photographs, he identified petitioner as the man who had been arguing with Wright. He conceded that he had signed a photograph of petitioner at the police station the night of the shooting and made a taped statement to the police that he had witnessed petitioner and Wright arguing, but testified at trial that the police had told him what to say in his taped statement and refused to let him leave the station until he complied.

Jennings also testified at trial that petitioner always wore a towel or t-shirt around his head. The defense theory of the case was twofold: first, that petitioner was not the person who shot Wright and, alternatively, that if the jury were to find that petitioner was the shooter, that there was a mutual affray and that petitioner acted in self-defense. The defense presented no evidence, but argued that petitioner was not the shooter. During jury deliberations, the jury requested to view the videotape, and the court, after agreement from the State and defense counsel, sent a TV/VCR combination unit into the jury room.

As indicated, the jury convicted petitioner of assault and the three handgun violations. Petitioner noted a timely appeal to the Court of Special Appeals. The Court of Special Appeals affirmed, holding that the trial court abused its discretion in admitting the videotape and still photographs into evidence, but that the error was harmless. Washington v. State, 179 Md.App. 32 , 943 A.2d 704 (2008).

We granted certiorari to consider the following questions: (1) Did the trial court abuse its discretion when, in violation of Rule 5-701, it permitted the investigating detective, who did not know the petitioner and who did not witness the ⁶⁴⁹ shooting, to opine that the person shown in a surveillance videotape and photographs over an hour before the shooting was the same person shown in the videotape and photographs at the time of the shooting, when such testimony amounted to an implicit identification of the petitioner as the shooter? (2) Was the investigating detective’s testimony about the surveillance videotape and photographs harmless beyond a reasonable doubt? (3) Did the Court of Special Appeals err when it held that the introduction of an improperly authenticated surveillance videotape and photographs was harmless error, where the videotape and the photographs purportedly placed the petitioner at the scene of the crime, where they purportedly showed the petitioner committing the crime and where the prosecutor, in opening and closing arguments, repeatedly referred to, and relied on, those exhibits to argue that the petitioner was not guilty? Washington v. State, 405 Md. 63 , 949 A.2d 652 (2008). 3 II.

The determinative issue in this case is whether the introduction of the surveillance videotapes and photographs was harmless error. Petitioner argues that the Court of Special Appeals erred in holding that the introduction of the improperly authenticated surveillance videotape was harmless error. He argues that because the intermediate appellate court held that “[bjecause the error probably did not affect the jury’s verdict, a reversal is not warranted,” the court used the wrong standard for assessing harmless error. The Court of Special Appeals, in ruling on the harmless error issue, stated as follows: “Upon our independent review of the record, we can affirmatively say beyond a reasonable doubt that the trial ⁶⁵⁰ court’s error in admitting the videotape and still photographs without proper authentication did not in any way influence appellant’s verdict.

Lawson v. State, 389 Md. 570, 581 , 886 A.2d 876 (2005). The videotape and still photographs added to or illustrated the testimony of Wright, Burrell and Jennings and, thus, in our view, the jury would have found appellant guilty without reliance on the improperly admitted evidence. Because the error ‘probably’ did not affect the jury’s verdict, a reversal is not warranted. Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946) (Non-constitutional errors require reversal only when the error ‘substantially’ or ‘probably’ affected the jury’s verdict and, thus, to put it another way, only when there is no probability that the jury’s verdict would have been different is the error harmless).” Washington, supra, 179 Md.App. at 54-55 , 943 A.2d at 717 .

While the intermediate appellate court cited Strickland and the “probability” standard, the court made clear that in Maryland, the standard for review as to whether an error is harmless, is beyond a reasonable doubt, and not a probability or preponderance standard. Petitioner argues, on the merits, that the error was not harmless beyond a reasonable doubt. We agree with petitioner and hold that under the circumstances presented herein, the admission of the videotape without proper authentication was not harmless error. 4 ⁶⁵¹ The Court of Special Appeals held that the State failed to lay an adequate foundation assuring the accuracy of the process that produced the videotape and therefore, the trial court abused its discretion in permitting the videotape into evidence. Id. at 51-52, 943 A.2d at 715 .

The court reasoned as follows: “Because of the lack of extrinsic evidence showing under what circumstances the surveillance footage was transferred to a compact disc, the trier of fact could not reasonably infer that the subject matter is what the State claims it to be and, thus, the videotape was not sufficiently authenticated.” Id. at 52 , 943 A.2d at 716 . Maryland Rule 5-901(a), identical to the Federal Rule of Evidence 901(a), governs the authentication of evidence in both civil and criminal trials. Md. Rule 5-901 (a) provides as follows: “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.” In order to satisfy the evidentiary requirement for authentication, the proponent of the evidence must show that the evidence is “sufficient to support a finding that the matter in question is what its proponent claims.” Md. Rule 5-901(a). A videotape is considered a photograph for admissibility purposes.

It is admissible in evidence and is subject to the same general rules of admissibility as a photograph. Dep’t of Public Safety v. Cole, 342 Md. 12, 20 , 672 A.2d 1115, 1119 (1996). Photographic manipulation, alterations and fabrications are nothing new, nor are such changes unique to digital imaging, although it might be easier in this digital age. As noted by Professor Lynn McLain, “[mjovies and tapes are easily manipulated, through such means as editing and changes of speed, to produce a misleading effect.” 5 Lynn McLain, Maryland Evidence § 403.6 at 592 (2001).

Courts therefore require authentication of