Phillips v. State

• Decision Date: 28 June 2017
• Docket Number: No. 713, Sept. Term, 2016,713, Sept. Term, 2016
• Citation: 163 A.3d 230,233 Md.App. 184
• Parties: Bashunn PHILLIPS v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

233 Md.App. 184

163 A.3d 230

Bashunn PHILLIPS

v.STATE of Maryland

No. 713, Sept. Term, 2016

Court of Special Appeals of Maryland.

June 28, 2017

Argued by: Rachel Simmonsen (Paul B. DeWolfe, Public Defender, on brief) Baltimore, MD, for Appellant

Argued by: Robert Taylor, Jr. (Brian E. Frosh, Atty. Gen., on brief) Baltimore, MD, for Appellee

Panel: Meredith, Graeff, Leahy, JJ.

Leahy, J.Bashunn Phillips ("Appellant") is charged with the first-degree murder of Shar–Ron Mason and related crimes. Phillips filed a motion in limine to exclude certain cell phone evidence in the Circuit Court for Anne Arundel County, and, on February 12, 2016, the court granted Phillips's motion. The State sought in banc review of the order granting Phillips's motion in the circuit court pursuant to the Maryland Constitution, Article IV, section 22, and Maryland Rules 4–352 and 2–551.

Phillips filed a motion to dismiss the State's request for in banc review for lack of jurisdiction. A three-judge panel sitting in banc denied the motion. In a written order and memorandum dated June 3, 2016, the panel found in favor of the State, thereby reversing the trial court's ruling. Phillips filed a notice of appeal of the in banc decision and presents the following questions for our review:¹

1. "Did the three-judge panel lack appellate jurisdiction to review [the trial court's² ] ruling?"

2. "Did the three-judge panel fail to identify any legal error in [the trial court's] ruling?"

3. "Did [the trial court] correctly conclude that the State's use of a drive test for the forensic purpose of pinpointing the location of a cell phone during a crime was not generally accepted in the relevant scientific community, as required by the Frye – Reed test for admissibility of expert testimony?"

4. "Did [the trial court] properly exercise [its] discretion under Maryland Rule 5–702 in ruling that the State's witnesses were not qualified to offer expert testimony about the use of drive tests for the forensic purpose of pinpointing the location of a cell phone during a crime?"

The State has filed a motion to dismiss this appeal, arguing that this Court does not have appellate jurisdiction over the appeal filed by Phillips. We deny the State's motion.

We hold that the in banc panel lacked jurisdiction to review the trial court's grant of Phillip's motion in limine because it was an unappealable interlocutory order. Accordingly, we do not reach Phillips's remaining contentions. We vacate the panel's order, and remand the case with directions to reinstate the trial court's order and dismiss the appeal so that criminal proceedings may resume.

BACKGROUND

A. Indictment and Motion in Limine

On July 18, 2014, a grand jury indicted Phillips for the December 10, 2013 murder of Shar–Ron Mason. Phillips was charged with first-degree murder, second-degree murder, manslaughter, the use of a firearm in a felony, and the use of a firearm during a crime of violence. He was also charged with wearing, carrying, or transporting a handgun. Phillips was then arrested pursuant to a warrant.

The State notified Phillips that it intended to offer at trial a radio frequency ("RF") signal propagation map purporting to establish the approximate location of Phillips's phone on the morning of December 10, 2013. The propagation map represented data obtained through a drive test³ conducted by Special Agent Richard Fennern, a member of the Federal Bureau of Investigation's Cellular Analysis and Survey Team, on October 23, 2014.

Phillips filed a motion in limine on August 7, 2015, seeking to exclude the RF signal propagation map and related testimony. Phillips argued that the method used to create the map was not generally accepted as reliable within the relevant scientific community under Maryland's Frye – Reed test for admissibility of evidence based on novel scientific methodology.⁴ Phillips acknowledged that cell phone tower "ping" evidence is admissible, but drew a distinction between the method used to create the RF signal propagation map and the collection of historical cell phone "ping" evidence.⁵ Phillips argued that a drive test—in this case conducted ten months after the murder of Shar–Ron Mason—"is merely a snapshot in time that cannot give any reliable prediction of where [radio frequency] signals were or where they were going over time." "In order for the test to be reliable, conditions would have to be analogous to those that existed on [the date of the murder] such as but not limited to weather, time, volume of call traffic, and the state of the equipment in use by the cell phone company."

B. Frye – Reed Hearing and the Trial Court's Opinion

The trial court heard arguments on Phillip's motion and conducted a Frye – Reed hearing over four days between September 24, 2015 and October 30, 2015. Phillips maintained that drive tests are routinely performed by cell phone companies to improve coverage and minimize "dropped calls," but that they are not generally accepted in criminal investigations. Testifying for the defense, William Folson, accepted as an expert witness "in the field of cellular technology and historical cell site analysis" explained that he "consider[s] [drive tests] a waste of time" because "[t]hey add no value to the historical analysis of a cell phone." He further testified that the manner in which Special Agent Fennern had performed the drive test was not accepted as reliable in the relevant scientific community. Mr. Folson explained that the RF signal range in December 2013 when the murder occurred would be different than the range in October 2014 when the drive test was conducted because the strength of RF signals fluctuate. Because of this, according to Mr. Folson, a drive test is not representative of the strength of the RF signals on any other date. He also pointed out that drive tests were not peer reviewed, accepted by the scientific community, or used in criminal investigations.

Providing a different opinion and testifying for the State, Special Agent Fennern was accepted as an "expert in the field of historical cell site analysis, cellular technology, and [ ] radio frequency drive testing for cell phone mapping." Agent Fennern opined that factors such as weather only have a "minimal" impact on radio frequency strength. He also testified that, relying on information provided by cell phone companies, the RF signal strength only varied by five or ten percent.

The State also offered the testimony of T–Mobile employee Stephen Willingham, accepted as an expert in radio frequency engineering. He testified that cell phone companies use drive tests for "competitive analysis reasons." He explained that when a customer complains about a missed call, a cell phone company will use a drive test to attempt to recreate that dropped call to identify a gap in service. Mr. Willingham testified that, over time, radio frequency "[f]ootprints remain consistent as long as nothing major has changed [,]" referring to the physical layout of the cell site, such as antennas and equipment. He stated that the maximum variation he had seen for a footprint was a quarter mile.

In a written memorandum and order dated February 12, 2016, the trial court granted Phillips's motion excluding the RF signal propagation maps and related expert testimony on drive tests. First, the trial court concluded that experts were required to testify on the drive test methodology. Next, the court concluded that law enforcement's use of drive tests for forensic purposes was novel and, thus, subject to the Frye – Reed reliability and admissibility standards. After determining that the digital forensic science field is the relevant scientific community, the court found that the State's experts lacked familiarity with that field and were unable to produce studies or peer-reviewed articles in that field supporting the reliability or general acceptance of drive tests for forensic purposes. The court ultimately concluded that the State did not establish that drive tests as used by the FBI are generally accepted in the digital forensic science community. The court then mused that, even if the drive test were considered generally accepted and reliable, the State's experts were not qualified to testify because they were not members of the digital forensic science community and failed to satisfy the requirement of Maryland Rule 5–702.⁶

C. In Banc Proceedings

i. Article IV, § 22 and Maryland Rule 2–551

Displeased with the court's interlocutory order granting Phillips's motion in limine , on February 18, 2016, the State filed a request for in banc review of the trial court's order pursuant to the Maryland Constitution, Article IV, section 22, and Maryland Rules 4–352 and 2–551. To provide context for the parties' ensuing filings and arguments, we interpose the relevant text authorizing in banc review in the circuit courts.

Article IV, section 22, of the Maryland Constitution reads:

Where any trial is conducted by less than three Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting at which such decision may be made; and the procedure for appeals to the Circuit Court in banc shall be as provided by the Maryland Rules. The decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal by an adverse party who did not seek in banc review, in those cases, civil or criminal, in which appeal to the Court of Special Appeals may be allowed by Law. The right of having questions reserved shall not, however, apply

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