[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Harrod v. State, 261 Md. App. 499 (2024), addressed introduction of a “composite” video as summary evidence and the use of police officers’ testimony describing it.
A prior blog addressed the admissibility of a “composite” video prepared by the prosecution. This second blog will address the use of a police officer to narrate the composite video at trial.
Neither of the testifying detectives witnessed the events about which they testified. Id. at 538. The Maryland Supreme Court recently held that a witness can authenticate a video that contains images the witness did not see. Can a witness authenticate a video if the video contains images that the witness did not see? (Aug. 16, 2024).[1] Here, in Harrod, the question was whether the police officers could describe a video that contained images that they had not witnessed.
On appeal, defendant argued “the narration was inadmissible because the investigators were not present during the events as they unfolded. Specifically, the appellant challenges whether the investigators could describe certain vehicles, their movements, and routes of travel and link them to either the victims or the shooters. Additionally, he challenges the detectives’ ability to describe their observations of where the person wearing the ‘distinctive black sweatshirt’ went and what he did, as well as the movements of the Trailblazer and the actions of its occupants.” Id. at 536-37.
The State responded that the detectives were allowed “to contextualize the sequence of clips in the summary exhibit based on their personal knowledge of the local geography and locations of various cameras.”
Although neither detective witnessed the events as they unfolded, their knowledge of the area and camera locations provided a foundation for them to describe what they saw on the videos in a way that helped the jury understand the evidence without intruding into its exclusive realm.
Harrod v. State, 261 Md. App. 499, 537-38 (2024) (emphasis added).
The Appeals Court of Maryland agreed. It described some of the police testimony:
Some of the challenged testimony from Lieutenant McDonald included: describing a person in “a black sweatsuit with distinctive white logo” getting out of a particular vehicle and interacting with others; describing that person’s travel and interactions with others; describing the travels of “the same Trailblazer that was – ended up later, that was shot at the end of Pleasant Street during the course of this incident,” including the actions of those who alighted from that vehicle; describing the person in the distinctive sweatshirt jogging toward the car; describing the travels of the man in the sweatshirt and stating that he retrieved a phone from a woman; describing the man in the sweatshirt walking around a set of dumpsters towards the vehicle; describing the “person wearing the black sweatshirt with distinctive design” getting into a taxi accompanied by another person.
Some of the challenged testimony from Detective Stein included describing “Breonna Barnes and R.J. [Atwell] … coming into the neighborhood in that Chevy Trailblazer” and “that individuals with the distinctive logo … stepping onto the sidewalk, going the same way as the Trailblazer[.]”
Id. at n. 8.
The Court also explained that:
Detective Aaron Stein, who had served with the Annapolis Police Department for over six years, was familiar with the neighborhood near the hotel. After the shooting, Detective Stein went to the hotel and Pleasant Street to investigate. He helped collect footage from local businesses and reviewed footage gathered by the team.
The State asked Detective Stein to review the composite video during his testimony. He used the two neighborhood maps to guide the jury through the clips of the composite video because they were “sometimes difficult to follow[.]” Over various objections, he explained the relationship between the different clips in the composite video and identified the camera numbers, times, streets, and specific activities depicted in the clips. He conveyed that the clips in the composite video were chronological.
Id.
Maryland Rule 5-701 permits lay witness testimony that includes opinions “which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.”
The Appeals Court explained that a witness may offer narrative testimony but cannot “interpret” audio or video evidence because interpretation would invade the province of the jury. Id. at 537-38.
The Court wrote that:
We hold that the circuit court did not abuse its discretion in allowing the detectives to testify about what they saw in the videos. Lieutenant McDonald, who was familiar with the community and the camera locations, pointed out aspects of the source videos that were relevant to the investigation. Detective Stein, who was experienced working in the area and investigated the shooting, explained how the clips in the composite video related chronologically to each other in the context of the geography depicted on the neighborhood maps. Although neither detective witnessed the events as they unfolded, their knowledge of the area and camera locations provided a foundation for them to describe what they saw on the videos in a way that helped the jury understand the evidence without intruding into its exclusive realm.
The detectives’ testimony established the chronology of events, the suspects’ movements before and after the shooting, and the significance of the black sweatsuit with the white “Keys to Success” logo found later. All this was helpful to the jury in understanding the events depicted in the videos, how the composite video was prepared, and how the video evidence related to other evidence presented at trial. Furthermore, the jury saw the composite video, which was admitted along with the source videos. It could have judged whether the detectives’ perceptions of movements and descriptions of individuals were accurate…. The court, therefore, did not abuse its discretion in allowing the detectives to describe what they saw in the video evidence.
Id. (emphasis added).
In a belts-and-suspenders holding, the Court also found that any error was harmless. “Not only was the jury free to view the videos themselves and judge the accuracy of the detectives’ descriptions, but other witnesses identified the appellant in specific footage as the person wearing the distinctive black sweatsuit. There is no dispute that the shooting was captured on video, nor was it disputed that the person seen firing the gun was wearing a distinctive black sweatsuit.”
In sum: “We fail to see how the detectives’ descriptions of movements they saw in the video evidence, to the extent they strayed beyond what was permissible, had any discernible effect on the jury’s verdict.” [2]
Notes
[1] For more on authentication, see Authentication Article by Paul Mark Sandler (Aug. 23, 2024).
[2] There were a number of other important facts and evidentiary issues, including inculpatory actions, cell phone location evidence, DNA, as well as other corroboration.
