Equivocal Texts ≠ Statements against Penal Interest — Mere Possibility Witness Might Invoke Fifth ≠ Unavailability — Authentication of Texts by Evidence of Phone Ownership & Contents OK, But Double Hearsay, Cloudy Circumstances Insufficient

Cottmeyer v. State, 2017 Md. App. LEXIS 725 (Md. Ct. Spec. App. July 17, 2017):

Appellant, Matthew Everett Cottmeyer, was charged in the Circuit Court for Somerset County, Maryland, with first degree burglary, conspiracy to commit first degree burglary, theft between $1,000 and $10,000, and related offenses. Appellant was acquitted by a jury of the burglary and conspiracy related charges, but convicted on the theft charge. Appellant was sentenced to ten years, with all but five years suspended, with credit for time served. He was also ordered to pay $1,583.95 restitution, as a condition of probation, to the victim in this case. Appellant timely appealed and presents the following questions for our review:

1. Was the evidence legally sufficient to sustain Mr. Cottmeyer's conviction?

2. Did the trial judge err in refusing to admit text messages corroborating Mr. Cottmeyer's claim that another person asked him to pawn the stolen property?

3. Did the trial judge err in ordering Mr. Cottmeyer to pay $1,583.95 in restitution, where the evidence did [*2]  not show that the loss suffered was a "direct result" of his conduct?

For the following reasons, we shall affirm.

BACKGROUND

Sometime in October 2015, Sharon Hoffman returned to her home in Eden, Maryland, from an extended stay in Georgia, and noticed that one of her windows was open and that several items of jewelry were missing from her bedroom. Hoffman described the missing jewelry as follows: (1) her grandmother's cameo ring, worth approximately $100 to $150 dollars; (2) her wedding band (3) engagement ring and, (4) her ex-husband's wedding ring, with all three of these appraised as a set at over $2,000.00; (5) a 1972 James M. Bennett High School class ring, with her initials inside, originally purchased between $100 and $150 dollars; (6) a gold chain; and, (7) a tennis bracelet with small diamonds.

Hoffman testified that a family named the Bonnevilles lived next door, and that the daughter's name was Jacqueline Bonneville Hughes. Hoffman also testified that, while she was away in Georgia, her ex-husband, Harry Hoffman stayed at the house. Mr. Hoffman denied that he took any of his ex-wife's jewelry.

On October 20, 2015, Maryland State Trooper James Cannon took a report from the Hoffmans [*3]  about the theft. Sharon Hoffman informed him that the seven items of jewelry were valued at $1,583.95. This information was then turned over to the Criminal Investigations section for the Maryland State Police.

Gerry Cullen, an employee of Crazy Louie's Pawn Shop in Salisbury, Maryland, confirmed that he was the custodian of records for the store and the records were kept in the ordinary course of business. Those records established that appellant sold five (5) rings on September 6, 2015 at approximately 4:35 p.m. These included: (1) a ten karat yellow gold men's ring with a broken shank; (2) a ten-karat yellow gold 1972 James M. Bennett High School class ring; (3) a fourteen-karat yellow gold cameo ring with antique setting; (4) a fourteen-karat women's yellow gold ring; and, (5) a fourteen-karat women's yellow gold wrap with two diamonds. Appellant was paid $150.00 for the five rings. This record was filed with law enforcement as required by pertinent licensing authority for the State of Maryland.

Maryland State Police Corporal Jonathan Pruitt, a criminal investigator, became involved in the burglary and theft from Sharon Hoffman's home on or around October 20, 2015. On November 12, [*4]  2015, he learned that appellant sold five rings, matching the description of the ones stolen, to Crazy Louie's. The rings, including the class ring with Hoffman's initials inside, were never recovered because they were either sold or melted down.

Corporal Pruitt eventually spoke to appellant on the phone on November 20, 2015, and appellant came to the Maryland State Police barrack in Princess Anne for an interview three days later on November 23, 2015. Appellant waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and a recording of his interview was played for the jury, without objection. In that interview, a transcript of which was admitted into evidence, appellant stated the following:

Jackie is the one that called me 'cause Kyle never really talks to me. Jackie called me saying she had four or five rings that she needed me to pawn because Kyle didn't have his license anymore for some reason or another. Something was going on with Kyle or something or whatever story they gave me. So, I was like all right. I just figured I was doing a favor for a friend. So, I went down there, five rings, like she said, pawned them, and that was it.1

Appellant told Corporal Pruitt that "Jackie" was the victim's neighbor, and that [*5]  they broke into the neighbor's house by climbing through a window. Appellant took Jackie and Kyle to the pawnshop, and that, after he sold the rings, including the victim's high school class ring, he gave the money to Kyle, who then gave the money to Jackie. Appellant did not receive any money in return.

Appellant maintained that he was just "doing a favor for a friend." Appellant informed Corporal Pruitt as follows:

After — after I came out the pawnshop and we were headed back home — I was going to drop them off, I kinda was pressing them a little bit. And I was saying things kinda didn't make sense or whatever. Why, you know, (inaudible) five rings right now and Bennett — one of them was a Bennett ring. And I was like, "Y'all didn't go to Bennett." So, I was like, "What's the deal?" And he ended up — she ended up saying they went to the neighbor's house. They were gone for a while or whatever. And —

Appellant continued, as follows:

[APPELLANT]: -- she was like, "All right. Well, our next door neighbors are gone for a while —" I forget where she said they went to. And, she said Kyle went in the window and let me in, then I came in through the door. And, then, we were rummaging around [*6]  or whatever and found these rings."

CORPORAL PRUITT: And, then, were you pissed? 'Cause I'd be pissed if someone just had me pawn —

[APPELLANT]: Yeah.

CORPORAL PRUITT: -- some stolen — stolen rings.

[APPELLANT]: Yeah, I said — she was like "They're elderly. They're elderly. They're not gonna notice. You're not gonna get in any trouble," or whatever. I was like, all right.

Corporal Pruitt confirmed that "Jackie" was Hoffman's neighbor, Jacqueline Hughes. He also went to the Hoffman residence and saw a "smudge of a palm print on the window," but it was not suitable for evidence collection due to age and weathering.

Appellant testified on his own behalf. Appellant confirmed that "Jackie" had five gold rings that she wanted him to sell. She claimed that she obtained the rings from her grandmother. After he drove Jackie and Kyle to the pawnshop and sold the rings for her while she remained outside in the car, he gave her the money, less $20 gas money for himself. It was after the transaction was complete, according to appellant, that Jackie informed him that she and Kyle stole the rings from the neighbor's house.

Appellant also explained that he did not look at the rings until he was inside the [*7]  pawn shop. On cross-examination, appellant agreed that he saw the high school class ring as it was laid out on the counter, and agreed that he became suspicious at that point in time. Based on his suspicions, appellant testified that he then questioned Jackie and Kyle about where the rings came from.

Appellant further testified that he had never been on the victim's, Hoffman's, property or in that house. He confirmed that, sometime in 2015, he was convicted for theft for stealing speakers from a Target. And, appellant concluded by testifying that, had he known the rings were stolen, he would not have sold them.

We shall include additional detail in the following discussion.

DISCUSSION

***

II.

Appellant next asserts the court erred in not admitting text messages, purportedly between appellant and Jacqueline Hughes, on the grounds that these were statements against Hughes' penal interest. The State responds on the merits that the messages were not admissible under that exception to the rule against hearsay. We agree with the State.

On cross-examination, Corporal Pruitt testified that he suggested that appellant try to text "Jackie", a.k.a., Jacqueline Hughes, in order to see if "she would acknowledge [*18]  something via text that could verify what he had to say[.]" The following then ensued:

BY [DEFENSE COUNSEL]:

Q. I'm showing you what has been marked as State's exhibits 1 and 2. Can you identify what State's — I mean Defense exhibit 1 is?

A. Yes. These are screen shots of [appellant's] phone when he text[ed] between Jackie and himself.

Q. And were you able to personally observe those on the phone as well as the screen shots?

A. Yes. I believe he either text[ed] me or e-mailed me a copy of the screen shots.

Q. Okay. And were you able to look at the entire conversation between himself and Jackie?

A. Yes.

Q. Okay. Is that an accurate reflection of what you recall seeing as to the conversation between him and Jackie of this incident?

A. Correct.

[DEFENSE COUNSEL]: Move to admit State's exhibit — Defendant's exhibit 1 and 2.

THE COURT: Any objection.

[PROSECUTOR]: Objection. Hearsay, Your Honor. THE COURT: It is hearsay. Tell me how you get it in?

[DEFENSE COUNSEL]: Your Honor, it would, a, she doesn't acknowledge anything. She just says — it's his words that he's sending to her. And she acknowledges by saying she recalls what he's talking about.

[PROSECUTOR]: Objection, Your Honor.

THE COURT: Sustained. Come up, come [*19]  up.

(Counsel and the Defendant approached the bench and the following ensued:)

THE COURT: I didn't ask you what she said. I just asked you how you were going to get it in.

[DEFENSE COUNSEL]: Sorry. I would have argued that it is a statement against her penal interest. She's acknowledging that he pawned the rings for her and her boyfriend. He asked her remember the rings I pawned for you (inaudible). She says, yeah, what about them. So it's a statement against her interest that she is the person that gave him those rings.

[PROSECUTOR]: (Inaudible). She just says what about it.

THE COURT: Say again?

[PROSECUTOR]: She doesn't even acknowledge if it is true or not. She says what about it, what about that circumstance. It's not a statement against penal interest. It's just saying what about that time that you pawned those rings. It's not an admission. It's not anything.

THE COURT: Objection is sustained.

[PROSECUTOR]: Your Honor, I'd ask that the jury be instructed to disregard that —

(Counsel and the Defendant returned to the trial table and proceedings resumed in open Court.)

THE COURT: The jury will disregard the statements that were just made by the Defense Counsel. Objection sustained.

The exhibits, [*20]  included with the record, purport to be print outs of one long text message exchange from appellant's cell phone, reproduced over two printed pages. The name "Jackieee" is printed at the top of each page, along with two different times: 9:42 a.m. and 10:08 a.m. Read as a whole, the message is as follows2:

Wyd [sent]

J: Just sitting here bored you

Bored. Hey u remember them rings I pawned for u n kyle?.. [sent]

J: Arent you workin lol and what bout it

Not yet [sent]

But how much did they give I forget [sent] J: Idk

U don't remember [sent]

J: I have no idea what time u go in today usually you already there lol

Under the Maryland Rules, hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Md. Rule 5-801(c). Further, "[e]xcept as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible." Md. Rule 5-802. "[I]n deciding whether a hearsay exception is applicable, we review the trial judge's ruling for legal error rather than for abuse of discretion; that is because hearsay is never admissible on the basis of the trial judge's exercise of discretion." [*21]  Thomas v. State, 429 Md. 85, 98, 55 A.3d 10 (2012).

Maryland Rule 5-804(b)(3) provides an exception to hearsay for:

A statement which was at the time of its making so contrary to the declarant's pecuniary or proprietary interest, so tended to subject the declarant to civil or criminal liability, or so tended to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

In Jackson v. State, 207 Md. App. 336, 348-49, 52 A.3d 980, cert. denied, 429 Md. 530, 56 A.3d 1242 (2012), we explained:

For a statement to be admissible under Rule 5-804(b)(3), the proponent of the statement must convince the trial court that "'1) the declarant's statement was against his or her penal interest; 2) the declarant is an unavailable witness; and 3) corroborating circumstances exist to establish the trustworthiness of the statement.'" Stewart v. State, 151 Md. App. 425, 447, 827 A.2d 850 (2003) (quoting Roebuck v. State, 148 Md. App. 563, 578, 813 A.2d 342 (2002)). "The proponent of the declaration has the burden 'to establish that it is cloaked with 'indicia of reliability[,]' ... mean[ing] that there must be a showing of particularized guarantees of trustworthiness.'" Id. (quoting [*22]  West [v. State], 124 Md. App. [147], 167, 720 A.2d 1253 [(1998)]) (other citations omitted).

"The trial court's evaluation of the trustworthiness of a statement is 'a fact-intensive determination' that, on appellate review, is subject to the clearly erroneous standard." Id. (quoting State v. Matusky, 343 Md. 467, 486, 682 A.2d 694 (1996)) (citing Powell v. State, 324 Md. 441, 453, 597 A.2d 479 (1991); Wilkerson v. State, 139 Md. App. 557, 576-77, 776 A.2d 685 (2001)). Then, like other exceptions to the hearsay bar, "'admissibility is a question addressed exclusively to the discretion of the trial judge.'" Wilkerson, 139 Md. App. at 577, 776 A.2d 685 (quoting Jacobs v. State, 45 Md. App. 634, 653, 415 A.2d 590 (1980)).

Moreover, the trial judge must "'be satisfied that the statement was in fact against the declarant's interest and that the declarant actually understood that his statement could indeed cause him [or her] a loss of property, money, or liberty.'" Jackson, 207 Md. App. at 350 (quoting Joseph F. Murphy, Jr., Maryland Evidence Handbook § 802[E] (4th ed. 2010)).

Looking to the text messages, we first consider whether Hughes made a statement that is against her penal interest. The Court of Appeals has stated, "[t]he statement must in fact be against the penal interest of the declarant. It need not be a full confession but must involve substantial exposure to criminal liability." State v. Standifur, 310 Md. 3, 13, 526 A.2d 955 (1987). Appellant suggests that Hughes' response "what bout it" was an acknowledgement that appellant sold the stolen rings on her behalf. The State disputes this, stating that [*23]  "the texts do not specify what rings he is referring to or when he pawned them." Even accepting Hughes' acknowledgment, the messages do not contain any agreement that the rings were stolen. There is no exposure to criminal liability in the text of the message.

This conclusion appears to be the primary basis for the trial court's ruling, and is sufficient to support affirmance. Nevertheless, we continue with our analysis. The penal interest exception also requires proof that the witness was unavailable. The Maryland Rules of Evidence define "unavailability" as follows:

"Unavailability as a witness" includes situations in which the declarant:

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;

(2) refuses to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;

(3) testifies to a lack of memory of the subject matter of the declarant's statement;

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of the statement has been [*24]  unable to procure the declarant's attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4) of this Rule, the declarant's attendance or testimony) by process or other reasonable means.

A statement will not qualify under section (b) of this Rule if the unavailability is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.

Maryland Rule 5-804(a).

Appellant suggests that subsection (1) applies because "[a]lthough the record does not show that Jackie invoked her Fifth Amendment right against self-incrimination, one can infer that she was unavailable given defense counsel's description of her as a "Codefendant," and given that Corporal Pruitt indicated to [appellant] that Jackie's connection to the stolen rings was being investigated."

Our research reveals that Hughes, along with Kyle Insley, were listed as codefendants in the circuit court docket entries in appellant's case. The Maryland Judiciary Case Search website also shows that she was charged contemporaneously with appellant. According to the judiciary website, all charges against Hughes were nolle prossed on or around June 13, 2016.3

However, even given that Hughes was a codefendant, the problem [*25]  in this case is that we do not even have as much as a proffer as to her unavailability. See Commercial Union v. Porter Hayden, 116 Md. App. 605, 642-43, 698 A.2d 1167(concluding that the trial judge may resolve an "unavailability" issue on the basis of a proffer from counsel), cert. denied, 348 Md. 205, 703 A.2d 147 (1997); see also Gray v. State, 368 Md. 529, 547, 796 A.2d 697 (2002)(recognizing that a witness who invokes his right to remain silent becomes "unavailable"). No discussion of whether Hughes was available to testify, or whether she would invoke her right against self-incrimination, appears in the record. Although this issue arises more frequently with prosecution witnesses, "[t]he ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness." Cordovi v. State, 63 Md. App. 455, 462-63, 492 A.2d 1328 (citation omitted), cert. denied, 304 Md. 297, 498 A.2d 1184 (1985). Under the circumstances, although there was a possibility that Hughes might invoke her privilege against self-incrimination, absent any showing on the issue, we conclude that Hughes' unavailability as a witness was unsupported.

In any event, the final requirement for admission of a statement against penal interest is a showing of "corroborating circumstances [that] clearly indicate the trustworthiness of the statement." As this Court has explained:

"The corroboration requirement [*26]  serves to deter 'criminal accomplices from fabricating evidence at trial.'" Roebuck, 148 Md. App. at 580 (quoting United States v. Camacho, 163 F.Supp.2d 287, 299 (S.D.N.Y.2001)). But, "there is no litmus test that courts must follow to establish adequate corroboration or trustworthiness." Roebuck, 148 Md. App. at 580. Ultimately, it is "within the trial court's discretion to determine whether the evidence was sufficiently reliable for admissibility." Wilkerson, 139 Md. App. at 577; see West, 124 Md. App. at 166.

Stewart v. State, 151 Md. App. 425, 447, 827 A.2d 850 (2003); see also Matusky v. State, 105 Md. App. 389, 398, 660 A.2d 935 (1995) (observing that "a declaration against penal interest is 'presumptively unreliable'") (citing Wilson v. State, 334 Md. 313, 335, 639 A.2d 125 (1994)), aff'd, 343 Md. 467, 682 A.2d 694 (1996).

In this case, there is an apparent foundational problem concerning the lack of authentication of the text messages. "Maryland Rule 5-901 addresses the requirements to authenticate evidence, including electronically stored evidence." Donati v. State, 215 Md. App. 686, 709, 84 A.3d 156 (2014). It 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." Md. Rule 5-901(a).

In Dickens v State, 175 Md. App. 231, 927 A.2d 32 (2007), this Court addressed the authentication requirements for text messages. In that case, Mr. Dickens fatally shot his wife; the only dispute between the State and the defense was whether the killing was premeditated murder or a lesser degree of culpable homicide. Dickens, 175 Md. App. at 234-35. The State's theory was [*27]  that Mr. Dickens had been planning for several weeks to murder his wife because she was seeing another man. Id. at 236. Mr. Dickens, however, told the police that he went to his wife's mother's house with a gun planning to commit suicide in front of his wife, but after he told his wife of his plan, and she told him to "go ahead," Mr. Dickens "lost it" and shot his wife. Id. at 235.

The State introduced several text messages, the content of which showed "veiled threats to kill" the victim. Dickens, 175 Md. App. at 238-39, 241. Dickens argued the text messages were not properly authenticated. This Court disagreed. One of the texts was sent from a telephone number associated with a cell phone that was possessed by the defendant until he discarded it shortly after the murder. Id. at 238-39. Another text message referred to the daughter of Dickens and the victim, and this Court agreed that the circumstantial evidence established that that message was sent by Dickens. Id. at 239. Three messages were sent by the same sender, and one of these referred to wedding vows. Id. at 240. Under these circumstances, and after recognizing that the burden of proof for authentication is slight, this Court held that the text messages were properly admitted at trial. Id. at 240.

Unlike Dickens, here, there [*28]  is little actual evidence showing when the text messages were made and under what circumstances. As the State observes, there is no date provided for the message. And, left unexplained are the two different times provided for the message, with the first page listing a time of 10:08 a.m., and the second page listing the non-sequential time of 9:42 a.m. There are also no phone numbers, and, other than the nickname "Jackieee" and the reference to "kyle," no indication who exactly the participants were to the messages.

We acknowledge that Corporal Pruitt testified the appellant told him that the text message came from appellant's cellphone. However, this amounts to, at best, double hearsay which, although admissible under certain circumstances, see Md. Rule 5-805, undermines the overall trustworthiness of the out-of-court statement. Considering all of the evidentiary factors, we conclude that the trial court properly declined to admit the text messages under the penal interest exception to the rule against hearsay.

Furthermore, even had the court erred, we conclude that any error would be harmless beyond a reasonable doubt. See Dionas v. State, 436 Md. 97, 108, 80 A.3d 1058 (2013)(An error is harmless when a reviewing court is "'satisfied that there is [*29]  no reasonable possibility that the evidence complained of - whether erroneously admitted or excluded - may have contributed to the rendition of the guilty verdict'") (quoting Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976)). Here, the text messages are not entirely exculpatory because, by their content, appellant admits that he sold the rings for Hughes and "kyle," apparently referring to Kyle Insley. Moreover, whereas appellant's theory of the case was that he did not know the rings were stolen, nothing in the messages adds anything to that defense. There simply is no admission that the rings were stolen. Accordingly, we conclude that any error in excluding the text messages was harmless beyond a reasonable doubt.

 


Although some of the evidence indicates the rings were "pawned," our review of the pawnshop records persuades us that appellant actually sold the rings in exchange for $150 cash.

The parties, in their briefs, added the names of the participants in the text message. We have reproduced the contents of the exhibits, as is.

"We take judicial notice that records of the Maryland Judiciary are made available by the Administrative Office of the Courts on the Judiciary website." Marks v. Criminal Injuries Comp. Bd., 196 Md. App. 37, 79 n.17, 7 A.3d 665 (2010) (citing http://www.mdcourts.gov); see also http://casesearch.courts.state.md.us/casesearch/

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