Baker v. State
| Decision Date | 06 July 2015 |
| Docket Number | No. 1397, Sept. Term, 2014.,1397, Sept. Term, 2014. |
| Citation | 223 Md.App. 750,117 A.3d 676 |
| Parties | Michael Edward BAKER v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Wyatt Feeler (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
Brenda Gruss (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: WOODWARD, GRAEFF, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.
On November 8, 2013, Michael Edward Baker, appellant, was arrested and charged with second degree rape, second degree sex offense, fourth degree sex offense, second degree assault, and impersonating a police officer. Appellant subsequently was convicted, in the Circuit Court for Cecil County, of each offense, and the court sentenced him to a prison term of ten years.1
On appeal, appellant raises three issues for our review, which we have reordered and rephrased slightly, as follows:
For the reasons set forth below, we answer question one in the affirmative, and therefore, we shall reverse the judgments of the circuit court.
Because appellant does not challenge the sufficiency of the evidence to support his conviction, we will recite only those facts necessary to provide context to our discussion of appellant's contentions.
On July 18, 2013, the victim, A.O. was “prostituting” at the Knights Inn on Belle Road in Cecil County.2 She testified that the person she worked for, her former boyfriend, set up an advertisement on a website, backpage.com, which listed a “Google account number,” “a separate [phone] number that rings to your personal phone.”
Sometime after dark, she received a call from a man, whom she later identified as appellant, seeking an encounter with her. She told appellant where to meet her, and he came to her hotel room between 7:00 and 9:00 p.m.
Appellant stated that he wanted to engage in oral and vaginal sex without a condom. A.O. told him that she did not do that. Appellant pulled out what appeared to be a police badge and told A.O. that he was a police officer. He said that if she did not do what he told her to do, he was going to arrest her, and he “made [her] write down [her] information like a cop would do.” He also informed her that “his supervisor was in a nearby room.”
Appellant then physically struck A.O. and forced her to engage in oral and vaginal sex without the use of a condom. At one point during the encounter, appellant appeared to receive a phone call, and he responded to the person on the phone: “Yeah, I'm with her right now, she's scared, but there's not really nothing here I could charge her for, so we will wrap things up.” After appellant left, A.O. was “an emotional wreck,” and she told several girls that she worked with that she had been raped.
At some point in the week following the rape, appellant contacted A.O. again. He told her: “Hey, it's Mike, the cop from the other night, I just want to let you know that don't be out there tonight because they are doing stings again,” and he stated that he just wanted to warn her. After this call, A.O. put appellant's phone number in her cell phone under the contact name: “Do not answer.” The day after the second phone call, A.O.'s boyfriend arranged for her to meet with a police officer, but A.O. was “still an emotional wreck,” and she refused to talk to the officer.
In October 2013, Trooper First Class Alan Flaugher approached A.O. to question her about the rape. Although A.O. was hesitant to talk to Trooper Flaugher because she believed appellant was a police officer, and she “didn't want to talk to another cop about what a cop did to” her, she eventually spoke with Trooper Flaugher. She showed Trooper Flaugher appellant's number on her phone and described how appellant raped her. Trooper Flaugher later showed her a photo array, and A.O. identified a photograph of appellant as the man who raped her. She also identified appellant in court.
As discussed in more detail, infra, Trooper Flaugher testified that he obtained a number from A.O.'s cell phone that she identified as the number of the man who raped her. He further testified that, based on records he obtained from AT & T, he identified that number as belonging to appellant. The call records reflected that, on the evening of the rape, there were several calls from the number he identified with appellant to A.O.'s phone number.
Appellant contends that the circuit court erred in admitting the “records connecting [his] cell phone with A.O.'s phone.” As explained below, we agree.
On October 15, 2013, the circuit court issued an order directing “AT & T/Cingular” to produce “certified copies of subscriber information, C.D.R. (call detail records), incoming and outgoing text message phone numbers, and cell tower locations/records ... from July 17, 2013 to August 30, 2013” for the cell phone number that A.O. identified as belonging to the man who raped her. The State's Attorney's Office faxed the order to “AT & T/Cingular Wireless.” AT & T responded with a cover letter stating: “All available requested information is enclosed,” along with the call records directed to be provided by the circuit court's order. The logs indicate that the phone number was owned by “Michael E. Baker,” and they showed the calls that the phone made, along with the cell phone towers from which each call “pinged” to connect to the call.
The State attempted to admit into evidence the logs of the calls made from appellant's phone. The prosecution began by asking Trooper Flaugher whether he obtained a phone number from A.O. related to her rape, and when he indicated that he had done so, the prosecutor asked what, if anything, Trooper Flaugher did with that number. Appellant's counsel objected, and a bench conference ensued. Appellant's counsel argued that the State was trying to establish that the number Trooper Flaugher got from A.O. was appellant's number, but it had “no witness from AT & T to enter [the] records into evidence,” noting that Trooper Flaugher was “not the custodian of records for AT & T,” and the records were not certified. When the court indicated that it was inclined to sustain the objection, the prosecutor responded that Trooper Flaugher was an expert who relied on the records in the course of his investigation, and the records were admissible as the basis for his expert testimony, stating that, “even if the document is not itself admitted into evidence, the facts contained within it can be presented in trial as evidence.” Appellant's counsel responded that the State had not named any experts prior to trial. The prosecutor did not dispute that assertion, but he stated that he had given appellant's counsel “ the courtesy of bringing him in, sitting him down with [Trooper Flaugher], having [Trooper Flaugher] ... go through these records, explain to [appellant's counsel] what they meant and what the conclusions were.” The prosecutor asserted that appellant's counsel knew “everything this witness is going to testify about.”
Appellant's counsel stated that he believed Trooper Flaugher was going to use the records to demonstrate that appellant's cell phone was in a certain area because it pinged certain cell phone towers. He argued that Trooper Flaugher should not be permitted to give such expert testimony because he was not named as an expert, and therefore, the defense had not obtained a “corresponding expert” on this issue. Accordingly, he asserted, the defense would be prejudiced by any testimony regarding the location of calls based on cell tower pings. The prosecutor argued that, if the court determined that the State should be sanctioned for not disclosing Trooper Flaugher as an expert witness, that sanction should not include disqualification of Trooper Flaugher as a witness because appellant's counsel had been informed of the testimony that Trooper Flaugher was going to give.
After the court issued its ruling, appellant's counsel objected, expressing his continued opposition to Trooper Flaugher's testimony:
Your Honor, but if he is going to testify to calls made, he wouldn't be expressing any kind of expert opinion so he wouldn't be able to testify as to the hearsay of when calls were made, because that information, the business records exception to that would have to come from a qualified witness who established that they were made for that.
He further stated that evidence 3
The court rejected defense counsel's argument, stating as follows:
I find he's an expert with regard to the cell phone issue. What I find is that you had a surprise in not knowing that he was going to testify as to the location. You said you knew that he was going to testify as to the calls. I find that he's an expert in that and can testify.
As noted, Trooper Flaugher testified that the phone number that A.O. identified as the number of the man who raped her belonged to appellant. He further testified that the call records showed that there were...
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