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Law Digest — Court of Special Appeals — Dec. 2, 2021

Maryland Court of Special Appeals

Criminal Procedure; Authentication of electronic evidence: Where defendant charged with drug-related offenses moved to exclude text messages obtained from his phone, circuit court did not err in denying the motion because, under the reasonable juror standard, the testimony of arresting officers and other evidence were sufficient for a reasonable juror to find by preponderance of the evidence that the electronic evidence was drug-related. Sykes v. State, No. 2132, Sept. Term 2019.

Real Property; Post-sale abatement during pandemic stay: Where ratification of foreclosure sale was delayed after due to temporary judicial stay of pending foreclosure proceedings during the COVID-19 pandemic, circuit court properly refused to abate foreclosure purchaser’s post-sale interest and taxes under the equitable exceptions applicable under certain circumstances, including when the delay is “caused by the conduct of other persons beyond the power of the purchaser to control or ameliorate,” because a foreclosure purchaser is not entitled to a reduction in payments it promised to pay simply because the court exercised its oversight role over a longer-than-ideal period of time due to a court backlog. North Star Properties, LLC v. Jeffrey Nadel, et al., No. 831, Sept. Term 2020.

Criminal Procedure

Authentication of electronic evidence

BOTTOM LINE: Where defendant charged with drug-related offenses moved to exclude text messages obtained from his phone, circuit court did not err in denying the motion because, under the reasonable juror standard, the testimony of arresting officers and other evidence were sufficient for a reasonable juror to find by preponderance of the evidence that the electronic evidence was drug-related.

CASE: Sykes v. State, No. 2132, Sept. Term 2019 (filed Nov. 18, 2021) (Judges Berger, Wells & Ripken).

FACTS:  On July 6, 2016 at about 9:30pm, Officer Westerfield was patrolling in Easton, Talbot County, Maryland, when he observed that a white 2007 Ford Crown Victoria had a malfunctioning rear light rendering the license plate illegible. After pulling the car over, Officer Westerfield observed Jessica Feldmeier in the driver’s seat and Brandon Sykes in the front passenger seat. The officer explained the reason for the stop and asked for Feldmeier’s license and registration. According to Officer Westerfield, Feldmeier’s hands were visibly shaking and there was a shake in her voice. He subsequently asked for Sykes’s identification. After returning to his patrol car, Officer Westerfield requested a K9 team to assist on the scene.

Officer Tindall responded with his K9, Meiko, and informed Feldmeier and Sykes that he was going to conduct a K9 scan of the vehicle. Meiko alerted at the driver’s door, giving a signal indicating the presence of narcotics. Officer Westerfield called for additional backup and searched the vehicle. Officer Chinn arrived on scene and stood with Sykes and Feldmeier while the vehicle was searched. Officer Westerfield discovered a plastic bag containing 84 packets of suspected narcotics. The larger bag contained 73 multicolored paper folds with a tan powdery material as well as 11 plastic baggies with a rock-like substance. He located the bag in between the passenger seat and either the center console or the gap between the passenger seat and the driver’s seat, within reach of both seats.

A field test of the substance returned a positive result for heroin. He informed Officer Chinn, who placed Sykes and Feldmeier under arrest. Officer Chinn escorted Sykes to the patrol car and placed him in the back seat. While Sykes was in the back seat, Officer Chinn observed him remove a Samsung smart phone from his pocket, unlock it, place a call, and talk on the phone. Officer Chinn radioed Officer Westerfield, who approached and observed Sykes on the phone. Officer Westerfield seized the cell phone from Sykes. The officers also seized a cell phone from Feldmeier. Sykes and Feldmeier were both charged with possession of a CDS and possession of a CDS with intent to distribute. Each was within close proximity to the drugs but neither claimed possession at that time.

The drugs were sent to the Maryland State Police Forensics Sciences Division for testing. The multicolored paper folds contained a mixture of heroin and fentanyl. The individual plastic baggies contained heroin. The officers also applied for and obtained a search warrant for the cell phone that was taken from Sykes. Investigators downloaded the emails, text messages, social media conversations, and other data stored on the cell phone into an extraction report. The earliest extracted text messages dated back to 2012. The State created a printout with 691 text messages sent or received in the ten days prior to Sykes’s arrest—between June 27, 2016 and July 6, 2016.

Sykes filed a motion in limine to exclude the data extracted from the cell phone arguing that the State failed to demonstrate authenticity, the text messages contained hearsay, and the text messages were irrelevant and prejudicial. At the initial pre-trial motions hearing, the court addressed the issue of authenticity in terms of the chain of custody of the cell phone and text messages. The court found that there was a sufficient foundation to conclude that the text messages extracted were from the cell phone that was taken from Sykes at the time of arrest. As to the defense’s authenticity argument, the court denied the initial motion to exclude on that ground. However, the court reserved ruling on the hearsay, relevancy, and prejudice arguments.

Sykes later renewed the motion in limine presenting the same grounds as before, including authenticity. At the hearing addressing the motion in limine, Sykes’s defense counsel again argued that the State should not be permitted to introduce the text messages at trial because the State did not establish Sykes’s ownership of the phone or that he was the person making and receiving the text messages. Sykes’s defense counsel further reiterated that the text messages were hearsay. The State argued that the phone was authenticated because it had been taken from Sykes’s person, numerous email accounts accessed on the phone contained the name Brandon Sykes, and the officers on the scene who seized the phone as well as the officer who conducted the extraction of the text messages were available witnesses for the State. The State also argued that the text messages fell under numerous hearsay exceptions. The court denied the defense’s motion to exclude the text messages.

At trial, the officers testified regarding the events. The parties stipulated that the text messages listed in the State’s printout came from the phone that was seized from Sykes. The State moved to admit the full printout into evidence, and Sykes renewed his objection. The court noted the objection and admitted the printout. Over defense counsel’s objection, the State also called Sergeant Crouch, who was offered as an expert in field drug investigations and interdictions with expertise in drug paraphernalia, sales, and terminology. The defense did not call any witnesses.

The jury found Sykes guilty of possession of a CDS with the intent to distribute. He was sentenced to 18 years of imprisonment.

Sykes appealed to the Court of Special Appeals, which affirmed.

LAW: At issue was whether the circuit court erred in admitting the text messages extracted from the cell phone taken from Sykes’s person at the time of arrest.

Pursuant to Maryland Rule 5-901(a), authentication of evidence, including electronically stored evidence, is a condition precedent to its admissibility, and the condition is satisfied where there is sufficient evidence “to support a finding that the matter in question is what its proponent claims.” Md. Rule 5-901(a). “[T]he burden of proof for authentication is slight, and the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.” Darling v. State, 232 Md. App. 430, 456 (2017) (quoting Johnson v. State, 228 Md. App. 27, 59 (2016)). For electronic evidence, the applicable standard is the “reasonable juror” test, and ask whether a reasonable juror might find more likely than not that the evidence is what it purports to be. State v. Sample, 468 Md. 560, 597, 599 n.20 (2020). The standard, then, is by a preponderance of the evidence. Id.

Rule 5-901(b) sets forth a non-exhaustive list of the manners in which evidence may be authenticated. Relevant here, evidence may be authenticated directly, through testimony of a witness “with knowledge that the offered evidence is what it is claimed to be,” or circumstantially, “such as [through] appearance, contents, substance, internal patterns, location, or other distinctive characteristics[.]” Md. Rule 5-901(b)(1), (4).

In Dickens v. State, 175 Md. App. 231 (2007), Dickens was convicted of first-degree murder for the fatal shooting of his wife. After the shooting, Dickens went to a neighbor’s house and reported that he had “done something to his girlfriend,” prompting the neighbor to call the police. Id. at 235. At trial, the State introduced as evidence threatening text messages sent by him to his wife in the two and a half months leading up to the shooting. The text messages were sent from a phone that Dickens possessed prior to the shooting. On appeal, Dickens argued that the text messages were inadmissible as not having been authenticated by the State, and the circuit court erred in ruling otherwise. Id. at 237.

The Dickens Court held that direct and circumstantial evidence linked the phone, and the messages sent from the phone, to Dickens. Id. at 240. As to the direct evidence connecting Dickens to the phone, the victim’s mother testified that she had given the victim a new phone in the months prior to the shooting, and the victim gave Dickens her old phone. She confirmed that the cell phone number from which certain threatening messages were sent matched the number of the victim’s old phone. Her testimony was corroborated by the fact that the phone was recovered near the neighbor’s home where Dickens was arrested. In regard to the circumstantial evidence, it was concluded that the content of the messages—referencing custody of their daughter and wedding vows (“until death do us part”)—and the context in which they were sent—contemporaneously with Dickens telling people he would find the victim and “deal with [her]”—also demonstrated authenticity. Id. at 238–40. Last, the Court looked at the text messages in the context of “what [Dickens] did later,” i.e., “shot his wife.” Id. at 238–39. It was thus held that the trial court did not err in ruling the text messages were authenticated based on the collective circumstances. Id. at 240.

The collective circumstances in the present case likewise demonstrated that the cell phone belonged to Sykes. The State introduced direct evidence that the phone belonged to Sykes through the testimony of two witnesses. At trial, both Officer Westerfield and Officer Chinn testified to seeing Sykes use the cell phone at the time of arrest. Officer Chinn further testified that he saw Sykes take the phone from his pocket, unlock it, and place a phone call. Such possession and use are consistent with ownership. The officers’ testimony provided sufficient evidence for the circuit court to conclude that a reasonable juror could find that the phone was what the State purported it to be—a cell phone belonging to Sykes.

Additionally, a reasonable juror could find it more likely than not that the outgoing text messages extracted from that cell phone were sent by Sykes. In State v. Sample, Sample was arrested following an attempted armed robbery where his accomplice, Mayo, was fatally shot. 468 Md. at 565. The State introduced evidence at trial of two Facebook profiles that the State claimed belonged to Sample and Mayo. Critically, the State provided evidence that the profile associated with Sample unfriended the profile associated with Mayo shortly after the attempted robbery. Id. at 582.

Later, the Court of Appeals applied the reasonable juror test to authentication of the Facebook profile associated with Sample and the action taken by that Facebook profile—unfriending Mayo’s profile. Id. at 597. The Court concluded that, based on the name of the Facebook profile, the email address associated with the account, the current city listed for the profile, and the “connections” for the profile, sufficient distinctive characteristics existed for a reasonable juror to conclude that the profile belonged to Sample. Turning to the “unfriending” action taken by Sample’s profile, the Court likewise concluded that a reasonable juror could find that Sample used the profile to unfriend Mayo’s profile. Id. at 602.

The Court reasoned that “[i]n and of itself, the ample evidence that the [Sample] profile belonged to Sample constitutes strong evidence that he was responsible for the unfriending.” Id. In addition, the evidence adduced at trial indicating that Sample was the surviving attempted robber supported the conclusion that Sample was responsible for unfriending the Mayo profile because it showed he had a motive to “sever ties” with Mayo. Id. The Court concluded that the evidence of Sample’s ownership of the profile as well as the collective circumstances provided sufficient evidence for a juror to conclude that Sample was responsible for the actions taken from the Sample profile. Id. at 603.

Here, the evidence that the phone belonged to Sykes “in and of itself” constituted strong evidence that he authored the outgoing text messages. In looking to the circumstances surrounding the text messages, it was noted that the drug-related text messages took place within ten days of Sykes’s arrest. In addition, the only other person in the car, Feldmeier, also had a cell phone that was seized from her person.

The content of the drug-related text messages was also consistent with the evidence of Sykes’s arrest with a large quantity of heroin. The State provided an expert witness who testified that the terminology used in the text messages was consistent with heroin transactions. And the most recent incoming text message discussing drug transactions was received the day before Sykes’s arrest and is marked: “Read.” Thus, the collective circumstances, coupled with the evidence of Sykes’s ownership of the cell phone, lends support to the circuit court’s conclusion that a juror could find more likely than not that Sykes authored the text messages.

Since there was sufficient evidence to conclude that a reasonable juror could find, by preponderance of the evidence, that Sykes owned the cell phone, there was no error in the court’s determination of authenticity. Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Sykes argued that no testimony from a witness with personal knowledge was presented, as none of the text messages that were offered at trial were alleged to have been sent in the officers’ presence. However, personal knowledge is just one method by which evidence may be authenticated pursuant to Maryland Rule 5-901.

Sykes also maintained that the State failed to exclude the possibility that the phone belonged to someone else, for example by obtaining records of the account holder. Such contentions were also without merit, as they went to the weight, not the admissibility, of the evidence. For admissibility purposes, the State is not required to disprove all other possibilities, nor is it required to prove authenticity with absolute certainty. See Sample, 468 Md. at 605 (“The State was not required to eliminate all possibilities that were inconsistent with authenticity or prove beyond any question” that the defendant was the one who used the communication device). Rather, it need prove “only that there was sufficient evidence for a reasonable juror to find by preponderance of evidence” that Sykes was responsible for the text messages. See id. Sykes’s control and possession over the phone permitted the jury to conclude that he authored the recently composed text messages. Thus, there was sufficient evidence to find that the State met its burden.

  

PRACTICE TIPS: “Under some circumstances, where intent is legitimately an issue in the case, and where by reason of similarity of conduct or temporal proximity, or both, evidence of other bad acts may possess a probative value that outweighs the potential for unfair prejudice, the evidence may be admissible.” Howard v. State, 324 Md. 505, 514 (1991).

Real Property

Post-sale abatement during pandemic stay

BOTTOM LINE: Where ratification of foreclosure sale was delayed after due to temporary judicial stay of pending foreclosure proceedings during the COVID-19 pandemic, circuit court properly refused to abate foreclosure purchaser’s post-sale interest and taxes under the equitable exceptions applicable under certain circumstances, including when the delay is “caused by the conduct of other persons beyond the power of the purchaser to control or ameliorate,” because a foreclosure purchaser is not entitled to a reduction in payments it promised to pay simply because the court exercised its oversight role over a longer-than-ideal period of time due to a court backlog.

CASE: North Star Properties, LLC v. Jeffrey Nadel, et al., No. 831, Sept. Term 2020 (filed Nov. 19, 2021) (Judges Kehoe, Arthur & Alpert (Senior Judge, Specially Assigned)).

FACTS: At a foreclosure sale conducted on February 25, 2020, Sukhpal Singh and Rajwant Virk jointly purchased 901 Park Terrace, Fort Washington (the “Property”) for $222,000. During the foreclosure proceedings, North Star Properties, LLC substituted for Singh and Virk as the foreclosure purchaser. Jeffrey Nadel and the others were the substitute trustees.

North Star deposited $46,000. In pertinent part, the Contract of Sale for the Property provided: “Balance of the purchase price to be paid in cash within ten days of final ratification of sale by the Circuit Court…. There shall be no abatement of interest due from the purchaser in the event additional funds are tendered before settlement or if settlement is delayed for any reason, including but not limited to exceptions to sale, bankruptcy filings by interested parties, Court administration of the foreclosure or unknown title defects. All taxes…are to be adjusted to the date of auction and thereafter are to be assumed by the purchaser.”

On March 18, 2020, the Chief Judge of the Court of Appeals of Maryland issued an “Administrative Order on Suspension of Foreclosures and Evictions during the COVID-19 Emergency” that was effective immediately. The order stayed all foreclosures of residential properties pending in the circuit courts.

On April 20, 2020, North Star filed a Motion to Abate and Limit Interest, seeking to reduce both post-sale interest and taxes on the Property. Citing the Chief Judge’s order, North Star argued that because the “unforeseen stay of proceedings that was a response to the COVID-19 pandemic” differs from a foreseeable “court back log[,]” it “would be inequitable and contrary to the holdings and spirit of existing case law” to make foreclosure purchasers “responsible for all interest and real property taxes from the date of the foreclosure sale up to the date of settlement.” North Star acknowledged that in these circumstances, requesting abatement was “tantamount to requesting a reallocation of costs” because it “would fully shift the additional costs from the foreclosure purchaser to the lender,” but argued that the COVID-19 stay “was not reasonably foreseeable and is not of the type a foreclosure purchaser could or should have been aware of at the time of its bid.”

The trustees responded that the “standard language” in the Contract of Sale expressly precludes such abatement regardless of the reason for any delay in ratification. They argued that this pandemic-related delay is analogous to where the delay is caused by Court review, which under AMT Homes, LLC v. Fishman, falls within the risks properly allocated to purchasers, and a cost of doing business. Furthermore, the North Star cited no authority for abating real estate taxes.

The stay on residential foreclosure proceedings was lifted on July 25, 2020. On August 31, 2020, the circuit court denied the North Star’s motion, concluding that the delay in ratifying the sale was due to an unprecedented pandemic and through no fault of any party, so that abating post-sale taxes would reallocate the “well-known” responsibility that “frames everyone’s expectations.” The court also concluded that it did not have jurisdiction to reallocate tax obligations to “the original homeowner” under these circumstances.

The court later clarified its order, applying the same principles governing allocation of post-sale tax responsibility to post-sale interest. In addition, the court concluded that under AMT Homes, a “court is not deemed a person beyond the power of the purchaser to control or ameliorate.” On September 24, 2020, the court ratified the foreclosure sale.

North Star appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: As a matter of contract and convention, foreclosure sale purchasers who deposit a portion of the purchase price commonly “pay interest upon the unpaid balance for the period between the time fixed for settlement and the date of actual settlement” and pay property taxes from the date of the sale. See Donald v. Chaney, 302 Md. 465, 477 (1985); AMT Homes, LLC v. Fishman, 228 Md. App. 302, 310 (2016). Yet if ratification of the sale or the ensuing settlement is delayed, the Court of Appeals has held that equitable exceptions may be warranted under certain circumstances, including when the delay is “caused by the conduct of other persons beyond the power of the purchaser to control or ameliorate.” Donald, 302 Md. at 477. “In ordinary circumstances and in the absence of special provisions in the sale offer,” a foreclosure purchaser may not be “discharge[d]…from the obligation to pay interest from the date fixed for settlement by the terms of sale until a delayed settlement date.” Donald, 302 Md. at 477-78; see also AMT Homes, 228 Md. App. at 309-10.

The Court of Appeals has recognized three exceptions to this general rule: “[A] purchaser at a judicial sale will be excused from [the] requirement to pay interest upon the unpaid balance for the period between the time fixed for settlement and the date of actual settlement only when the delay stems from neglect on the part of the trustee; was caused by necessary appellate review of lower court determinations[;] or was caused by the conduct of other persons beyond the power of the purchaser to control or ameliorate.” Donald, 302 Md. at 477.

At issue here was the third exception, for unavoidable delay caused by “the conduct of other persons[.]” Id. As in this case, many of the decisions comprising the Maryland jurisprudence on this exception involved a foreclosure sale made under a contract that allocates responsibility for post-sale interest and taxes to the purchaser and prohibits abatement. See generally Zorzit v. 915 W. 36th Street, LLC, 197 Md. App. 91, 97 (2011). Significantly, in all but one of these cases, the settlement delay was caused by a mortgagor or former owner, seeking to impede the foreclosure proceedings. Cf. Baltrotsky v. Kugler, 395 Md. 468, 480-81 (2006) (holding that former property owner’s efforts to void the sale through filing “persistent and monotonous pleadings” was “conduct of other persons” for abatement purposes); Zorzit, 197 Md. App. at 108-09 (holding that former property owners’ use of “legal process to delay the final ratification” for 77 days constituted “conduct of other persons” for abatement purposes).

AMT Homes is the only reported Maryland case involving settlement delay caused by judicial operations, rather than by another person interested in the foreclosure proceedings. In that case, the Court applied the principles articulated in Donald to a foreclosure settlement delayed by a backlogged court calendar, which prevented ratification within the 60-day period contemplated by Md. Rule 14-305.4 The Court rejected the foreclosure purchaser’s argument that interest accruing after that 60-day period should be abated under an exception for delay “due to no fault of the purchaser,” instead concluding that the rule does not establish a presumptive period within which ratification should reasonably be expected to occur. See id. at 308, 312-13.

It was held that the circuit court did not err or abuse its discretion in declining to abate the foreclosure purchaser’s obligation to pay post-sale interest and taxes when doing so would shift that obligation to another party who also had no control over the court’s calendar. See id. at 310-11.

Despite the novel circumstances presented by this case, where ratification was delayed by a judicial stay imposed during a public health emergency, there was no legal or equitable reason to depart from the principles of Donald and AMT Homes. Although delay in judicial review caused by the “conduct of other persons” may warrant abatement in certain circumstances, North Star expressly agreed in the Contract of Sale that interest would not be abated “for any reason, including but not limited to…Court administration of the foreclosure[.]” Similarly, North Star expressly agreed that “[a]ll taxes…are to be adjusted to the date of auction, and thereafter are to be assumed by the purchaser.” Based on the established precedent and policy articulated in AMT Homes, this contract language allocated the risk and responsibility for post-sale interest and taxes to North Star, even if judicial review were to be delayed because of court-related circumstances beyond the control of any party to the foreclosure proceedings.

Thus, the circuit court did not err or abuse its discretion in declining to abate North Star’s obligation to pay post-sale interest and taxes based on the temporary judicial stay on pending foreclosure proceedings during the COVID-19 public health emergency. Accordingly, the judgment was affirmed.

COMMENTARY: As grounds for abating both post-sale interest and property taxes, North Star emphasized the “novel set of facts not seen in any reported case; to wit: a delay caused by administrative orders entered in response to the COVID-19 pandemic that entirely closed off access to the judicial system for the type of proceedings needed to complete the transactions and thereafter limited and qualified the proceedings.” In North Star’s view, the Chief Judge’s stay orders effectively “frustrated” the parties’ basic assumption that come the settlement day, the court would be open to process the settlement. In these circumstances, North Star argued that an equitable revision of a term of the contract was warranted under the recognized exception for delay caused by the conduct of other persons beyond the power of the purchaser to control or ameliorate.

Among other things, the trustees contended there is no equitable basis for abating interest or taxes, because even after the judicial stay on foreclosure proceedings was lifted on July 25, 2020, North Star delayed their own settlement from August 2020 through at least May 2021, a span of nine months, without any apparent ill effect. In these circumstances, the trustees argued, North Star could not have been “unduly harmed” by judicial stay.

Although the Court agreed with the trustees that the circuit court properly exercised its discretion in denying North Star’s motion, it did not address this contention because it rested on allegations regarding post-ruling events, for which the trustees offered no citation to the record.

  

PRACTICE TIPS: “As equitable owner of the property, the purchaser should bear the risk associated with judicial review. With the benefits of equitable ownership come its obligations, one of which is that the purchaser pays interest from the time of sale. Whether or not it’s fair—and reasonable people might disagree—this allocation of costs and responsibilities is well-known and frames everyone’s expectations.” AMT Homes, LLC v. Fishman, 228 Md. App. 302, 309-10 (2016) (citations omitted).

 

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