Spinks v. State

• Decision Date: 29 September 2021
• Docket Number: No. 1935, Sept. Term, 2019,1935, Sept. Term, 2019
• Citation: 260 A.3d 726,252 Md.App. 604
• Parties: Jerel Lewis SPINKS v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

252 Md.App. 604

260 A.3d 726

Jerel Lewis SPINKS

v.STATE of Maryland

No. 1935, Sept. Term, 2019

Court of Special Appeals of Maryland.

September 29, 2021

Submitted by: Katherine P. Rasin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Submitted by: Jer Welter (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Nazarian, Beachley, Ripken, JJ.

Beachley, J.

On the night of February 18, 2019, in the parking lot of the Sligo House Apartments, Oumar Sanoh was robbed at gunpoint. The State charged Jerel Lewis Spinks, appellant, with assisting the gunman during that robbery. At trial, the contested issue was whether Spinks did so, or instead, whether he was merely present while his companion unexpectedly committed the robbery. After hearing Mr. Sanoh's testimony via Skype, viewing surveillance video showing Spinks and the gunman returning to the apartment building with an item taken from the car, and considering Spinks's statement to police, a jury in the Circuit Court for Montgomery County convicted Spinks of armed robbery and conspiracy to commit armed robbery. He was sentenced to twenty years for the robbery and a consecutive ten years for the conspiracy conviction.

In this appeal, the sole question presented by Spinks is whether the trial court violated his Sixth Amendment right to confront his accuser by allowing Sanoh to testify via Skype.¹ Based on our independent constitutional review of the record, we conclude that the trial court did not err and therefore affirm Spinks's convictions.

BACKGROUND

The Motion Record

Because the sole appellate issue is whether the trial court erred in permitting Mr. Sanoh to testify via Skype, we shall provide a detailed summary of the motion record pertinent to that question. At the outset of proceedings on the scheduled trial date, the prosecutor requested permission for Sanoh to testify remotely via Skype. She explained that although Sanoh had been served with a subpoena and was scheduled to meet with her before trial, he received a phone call that his mother had been hospitalized for a medical emergency and flew home to Guinea the next day, on August 13, 2019. He could not return to the United States because he did not have a visa. The prosecutor argued that Skype testimony may be admitted over a Sixth Amendment objection, in accordance with standards established by Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), and White v. State , 223 Md. App. 353, 116 A.3d 520 (2015).

The trial judge ruled that he would conduct a preliminary hearing to determine whether the necessary predicate for Skype testimony was satisfied. Mr. Sanoh testified via Skype, outside the presence of the jury. Confirming the prosecutor's proffer regarding his mother's medical emergency and his flight home, Sanoh testified that he is not a U.S. citizen and that his visa expired in 2018. He explained that he would like to return to the United States but could not do so without a new visa.

Defense counsel objected that the State could not "make a showing of necessity" because Sanoh's expired visa "means that really it was just a matter of time before he was leaving anyway[.]" In counsel's view, moreover, the fact that the prosecutor "had not spoken with [Sanoh] despite various attempts" indicated "that he was not cooperative and didn't want to come in to testify." Based on Sanoh's inability to identify the family member who called him, his lack of any documentation regarding his mother's hospitalization and his flight, and inconsistencies in his testimony, defense counsel argued that Sanoh was not credible.

The trial court granted the State's motion, explaining its factual findings and legal conclusions in detail, as follows:

The [S]tate has requested leave to produce the testimony of a witness via Skype. The defendant opposes that request. We have had an evidentiary hearing, at which the [putative] witness has appeared via Skype, was asked questions by the State, was asked questions by counsel for the defendant, was asked questions by the court. I find that the witness appeared by Skype. He appeared via a real time video conference program accessible via computer over the internet. That was recognized by the Court of Appeals in ... [Att'y Grievance Comm'n of Md. v. Agbaje ], 438 Md. 695 . Understanding that was a civil case, I find here it was a real time video conference at which the witness could see everybody in the courtroom. Everybody in the courtroom, including the defendant, could see the witness. I find the witness was alone when he was testifying. I find the witness was first sworn, that the oath was duly administered just as if the witness had been in the courtroom.

The only potential defect in the Skype program is a tiny delay about sound, a couple of milliseconds. Vastly less than Neil Armstrong's delay from when he was communicating from where he was communicating from to Houston. The screen was clear, not pixelated, and, quoting Judge McCormick, "these were as good as wedding photographs." So, with respect to the quality of the technical piece, I am persuaded that reasonable safeguards are in place to protect the integrity of testimony given through Skype. ... While I didn't ... measure that screen diagonally, ... it's at least 42 inches. I'm sure it's bigger than that, because it looks bigger than my TV. I could see it clearly. ...

With respect to the other pieces, I find that the witness was duly subpoenaed. I find that on the 12th of August of 2019, the witness received a call from family members that his mother in the country of Guinea, ... had taken ill, was in the hospital in a coma. The fact that the witness didn't remember the exact name of the cousin who called him, to me, frankly, is not of big moment. You get a call out of the blue, not expecting it, I find, which is what happened here, that mom not only has taken ill, but is in the hospital in a coma, that's what you're paying attention to. He was concerned his mother was gravely ill. I find that, on the very next day, he flew back home. That he booked a ticket, and while he didn't fly non-stop, he left the United States and flew back to the country of Guinea in West Africa. I find that his U.S. Visa expired in 2018, and while it may very well be that his remaining in the United States post the expiration of his Visa exposed him to federal deportation or federal penalties, the long and the short of it is I couldn't even tell you the number of folks who are here under those circumstances, whether it be through inadvertence or students who forgot or -- it doesn't matter.

But what happened here, I find, is the gentleman, since he's left the United States, cannot lawfully re-enter. I find he does not have a valid Visa. I find, based on the evidence presented, there is no ... reasonable expectation that he'll even get one because he will have to reveal to the immigration authorities that he probably knowingly overstayed his prior Visa and the chances of him getting a new one are probably not high. So, his ability to lawfully re-enter the United States, based on the information I have, is nominal at best.

Second, I find that this is neither a sham nor a ruse. While he came across as somewhat weary and concerned, he has made himself available to the State court system via Skype when, frankly, we can't make him do that. Nobody is putting a gun to this guy's head to make him communicate to make him be available. I find that he's trying to comply and to do the right thing. He simply, I find, cannot lawfully re-enter the United States at any time. So, even if, God willing, mom got better tomorrow and you put him on an airplane, he can't get lawfully through immigration.

There is, I find, an important public policy in this case. That is that all persons who are in this country, regardless of why they're here, regardless of whether it is or isn't lawful for them to be here, are entitled to the protection of our criminal laws and are entitled, if they are the victim of a crime, to be heard and to have a case decided by a jury. To me, that is an overriding and important public policy. Just as important as solving cold cases was in ... White . All persons -- it would be, in my judgement, a sad place for this country to be if we said, you know, there's more than one class of victim. There are certain victims who are going to be, let their cases go to trial, but if you happen to be in this country illegally and you're the victim of a crime and you happen to step over the border, your case goes away because, since you can't lawfully come back, your alleged assailant goes free. I find that to be appalling, were that the case, and I am not persuaded that that is proper public policy. Of course, I don't make policy, but in terms of the public interest at stake, this case, in all the respects, I am persuaded fits quite neatly within what Judge Leahy explicated [in White ], and I'm not going to go through all of their pieces and reasoning in White v. The State , but this is as close as it gets to in person confrontation. This isn't even remarkably similar to Craig , where Justice O'Connor allowed the witness not to see the defendant. Well, this witness sees the defendant. The defendant sees the witness. Everybody sees everybody in real time, and I am ... highly confident we can arrange the TV screen, just like I did yesterday in a trial, so the jury and everybody sees everybody. That is not a technical problem in this day and age.

* * *

Simply, technology evolves, and sometimes, albeit slowly, the courts evolve with it. There's no question that a defendant's right to confront an accuse[r] is paramount, and it is also quite clear that the defendant's right to confront an accusatory witness may be satisfied absent a face to face in the courtroom. Here we have face to face over, I find, a reliable technological medium, and it would not deny his rights under the Sixth Amendment to the

...