Jackson v. State , 460 Md. 107 ( 2018 )

Allan Jackson v. State of Maryland, No. 78, September Term, 2017. Opinion by Greene, J.
EVIDENCE — MARYLAND RULE 5-901 — AUTHENTICATION — VIDEO
SURVEILLANCE FOOTAGE:
The Court of Appeals held that a compact disk containing video surveillance footage from a
Bank of America ATM was properly authenticated after Bank of America’s protective services
manager testified as to the process he used to view the ATM surveillance footage, and that he
then requested that the footage be copied and sent directly to the detective investigating the
alleged crimes. The testifying witness was unable to cut, paste, modify or enhance the footage
in any way. The witness verified that the video segment moved into evidence was the video
segment he had previously viewed. The discrepancy between the video footage’s time-stamp
and the time-stamp on the ATM receipt for a single transaction does not undermine the
authenticity of the compact disk.
EVIDENCE — MARYLAND RULE 5-803(b)(6) — BUSINESS RECORDS
EXCEPTION — BANK STATEMENTS:
The Court of Appeals held that a bank statement was properly authenticated after the account
holder testified that he had received the bank statement from his bank’s personnel the day after
unauthorized withdrawals were made from his account. The bank statement satisfied the four
requirements of Md. Rule 5-803(b)(6), the business record exception to hearsay, because it was
made at or near the time of the unauthorized withdrawals, it was made by PNC, which had
knowledge of the transactions, it was a statement “made and kept in the course of a regularly
conducted business activity” and, finally, it was the regular practice of PNC bank to make and
keep these statements.
Circuit Court for Baltimore City
Case No. 115230020 IN THE COURT OF APPEALS
Argued: May 31, 2018
OF MARYLAND
______________________________________
No. 78
September Term, 2017
______________________________________
ALLAN JACKSON
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: July 12, 2018
2018-07-12
08:43-04:00
In this criminal case, Petitioner Allan Jackson (“Mr. Jackson”) challenges the
admissibility of two items of evidence that he claims lacked authenticity and were, thus,
inadmissible. Specifically, we review the requisite evidentiary foundation for the
admission into evidence of a bank statement record as well as a compact disk containing
video surveillance footage. Because we determine that the evidence was properly
authenticated under the Maryland Rules of Evidence, we shall affirm the judgment of the
Court of Special Appeals.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Jackson was tried by a jury in the Circuit Court for Baltimore City on nine
separate criminal counts.1 The charges against Mr. Jackson stemmed from an alleged home
invasion on April 29, 2015. Testimony from the victim of the crime, Donald Daggett,
described a confrontation at his home wherein Mr. Jackson pushed his way into Mr.
Daggett’s home, wielding a knife, and demanded money. Mr. Daggett surrendered some
cash and his PNC Bank card as well as the card’s personal identification number.
According to the State, Mr. Jackson thereafter stole Mr. Daggett’s van and used Mr.
Daggett’s bank card to make four unauthorized withdrawals from the ATM at the Bank of
1
The jury considered nine charges, which included: home invasion and first-degree
burglary, pursuant to Criminal Law Article § 6-202; robbery, pursuant to Criminal Law
Article § 3-402; robbery with a dangerous weapon, pursuant to Criminal Law Article § 3-
403; first-degree assault, pursuant to Criminal Law Article § 3-202; second-degree assault,
pursuant to Criminal Law Article § 3-203; theft of at least $1,000 but less than $10,000,
pursuant to Criminal Law Article § 7-104; unlawful taking of a motor vehicle, pursuant to
Criminal Law Article § 7-105; and wearing or carrying a deadly weapon with intent to
injure, pursuant to Criminal Law Article § 4-101.
America Brooklyn-Curtis Bay branch at 3601 S. Hanover Street. The withdrawals
exceeded $1,000 and were made over a span of several hours during the night of April 29,
2015, through the early morning of April 30, 2015.
After a five-day trial, the jury convicted Mr. Jackson of two of the nine counts: first-
degree assault2 and theft of at least $1,000 but less than $10,000.3 Relevant to our inquiry
is Mr. Jackson’s conviction of theft of at least $1,000. To prove that Mr. Jackson withdrew
funds, without authorization, from Mr. Daggett’s PNC account, the State first introduced
two ATM receipts, which had been recovered from the stolen van. One ATM receipt
reflected a withdrawal in the amount of $200 from the Bank of America Brooklyn-Curtis
2
Section 3-202 of the Criminal Law Article, Maryland Code (2002, 2012 Repl. Vol.)
provides:
(a) (1) A person may not intentionally cause or attempt to cause serious
physical injury to another.
(2) A person may not commit an assault with a firearm, including:
(i) a handgun, antique firearm, rifle, shotgun, short-barreled shotgun, or
short-barreled rifle, as those terms are defined in § 4-201 of this article;
(ii) an assault pistol, as defined in § 4-301 of this article;
(iii) a machine gun, as defined in § 4-401 of this article; and
(iv) a regulated firearm, as defined in § 5-101 of the Public Safety Article.
3
At the time of Mr. Jackson’s conviction, Section 7-104 of the Criminal Law Article,
Maryland Code (2002, 2012 Repl. Vol.), provided, in relevant part:
(a) A person may not willfully or knowingly obtain or exert unauthorized
control over property, if the person:
(1) intends to deprive the owner of the property;
(2) willfully or knowingly uses, conceals, or abandons the property in a
manner that deprives the owner of the property; or
(3) uses, conceals, or abandons the property knowing the use, concealment,
or abandonment probably will deprive the owner of the property.
* * *
(g) (1) A person convicted of theft of property or services with a value of:
(i) at least $1,000 but less than $10,000 is guilty of a felony[.]
2
Bay ATM at 11:43 p.m. on April 29, 2015. The second receipt reflected a withdrawal in
the amount of $200 from the Bank of America Brooklyn-Curtis Bay ATM at 12:20 a.m.
on April 30, 2015. Additionally, the State produced two still photographs from a
surveillance video at the Brooklyn-Curtis Bay ATM location, which captured an image of
a man resembling Mr. Jackson standing near the ATM at 11:43 p.m. on April 29, 2015,
and again at 12:20 a.m. on April 30, 2015.
In addition, the State introduced two compact disks (“CD”) containing video
surveillance footage. The first CD showed the events that occurred at the Bank of America
Brooklyn-Curtis Bay ATM during the period of 11:15 p.m. to 11:35 p.m. on April 29, 2015.
The second disk showed video surveillance of events that occurred during the period of
12:10 a.m. and 12:30 a.m. on April 30, 2015.4 It is undisputed that the man depicted in the
video footage standing near the ATM resembles Mr. Jackson.
Finally, the State, through Mr. Daggett’s testimony, introduced a bank statement
from PNC bank for the business checking account of Mr. Daggett’s business, Double D
Tires, LLC. The bank statement reflected an accounting period of April 1, 2015, through
April 30, 2015. As part of the same exhibit, there was a two-page “Account Transaction
Detail Report,” which showed each transaction in chronological order for the period of
April 1, 2015, through April 30, 2015. The State’s exhibit showed four ATM withdrawals
from the Double D Tires, LCC account, which had posted to the account on “4/30.”
4
Mr. Jackson does not challenge the evidence shown in the video between 12:10 a.m. and
12:30 a.m.
3
Specifically, the amounts of each individual withdrawal were $203, $503, $203 and $203,
which totaled $1,112. The State’s exhibit, in its entirety, was moved into evidence.
The jury convicted Mr. Jackson of first-degree assault and theft of at least $1,000
but not more than $10,000. In an unreported opinion, the Court of Special Appeals
affirmed the judgment of the Circuit Court. Jackson v. State, No. 1516, 2016 Term (Md.
Ct. Spec. App., Oct. 11, 2017). The intermediate appellate court held that the disk segment
containing the surveillance footage was properly authenticated by the Bank of America
employee. The employee’s testimony verified that the footage on the disk was a fair and
accurate representation of what he had seen previously while viewing the bank’s stored
images of the cameras surrounding the Brooklyn-Curtis Bay ATM. Next, the Court of
Special Appeals concluded that the PNC bank statements satisfied the four requirements
of the business record hearsay exception, under Md. Rule 5-803(b)(6), and, thus, were
properly authenticated.
Mr. Jackson filed a petition for writ of certiorari in this Court, which we granted to
answer the following questions:
1. Whether the Court of Special Appeals erred in holding that evidence had
been properly authenticated, despite acknowledging that the evidence was
not what its proponent claimed.
2. Whether records of regularly conducted business activities can be
authenticated through inferences and “common knowledge,” even though
Rule 5-902 requires “[t]estimony of authenticity.”
Jackson v. State, 457 Md. 397, 178 A.3d 1241 (2018).
4
We hold that the Court of Special Appeals did not err when concluding that the CD
was properly authenticated and that the bank statements were admissible under the business
records exception to the hearsay rule. Accordingly, we affirm the judgment of the
intermediate appellate court.
DISCUSSION
Parties’ Arguments
In this case, Petitioner asks us to decide whether the introduction of the CD of the
surveillance video footage, which was recorded at the Bank of America Brooklyn-Curtis
Bay ATM on April 29, 2015, between 11:15pm and 11:35pm, was properly authenticated.
Petitioner argues that the CD of the surveillance video was not properly authenticated
because the video does not show what the State claimed it showed—specifically, a
withdrawal of $200 from Daggett’s bank account at 11:43 p.m. on April 29, 2015.5
5
On direct of examination of its witness Brett Cunningham, the Protective Services
Manager from Bank of America, the State elicited the following testimony:
[STATE]: And did there come a time when Detective Green-Dargan
contacted you asking about security video for ATM transactions at that
branch?
[CUNNINGHAM]: Yes.
[STATE]: And in response to her inquiry, what action if any did you take?
[CUNNINGHAM]: She had emailed me some receipts for the ATM and I
accessed the video for that site and pulled up some images of who was at the
ATM and emailed them to her to verify that’s what she was looking for.
On re-direct of Mr. Cunningham, the State more directly connected the ATM receipts to
the surveillance video segments that Mr. Cunningham had requested:
[STATE]: So you were looking for security video based on transactions –
based on the times that were on, that you read onto the record?
(continued . . . )
5
According to Petitioner, the intermediate appellate court’s holding, which upheld the
admission of the videotape on the basis of authenticity, “is impossible to square with the
plain text of Md. R. 5-901(a).” Petitioner reasons that this Court’s affirmance of that
holding “would undercut fundamental principles of trust and fairness in judicial
proceedings.” According to Petitioner, “[w]hat follows logically . . . is that parties may
distort, misrepresent, or even lie about the evidence that they present to the jury, so long as
that evidence is somehow labeled as what it actually is.” Petitioner asserts that the proper
authentication of the surveillance footage turns on whether the evidence is “sufficient to
support a finding that the matter in question is what its proponent claims,” as provided in
Md. Rule 5-901(a). Mr. Jackson argues that the video footage was “not what the State
claimed,” and, therefore, was not properly authenticated.
The State, on the other hand, reasons that the Bank of America employee, Brett
Cunningham, who testified about the CD, filled the “authentication gaps” that were at issue
in Washington v. State, 406 Md. 642, 691 A.2d 1110 (2008). According to the State, the
CD was properly authenticated based on Mr. Cunningham’s testimony that the video was
a reliable and accurate depiction of the events of that time period.
(. . . continued)
[CUNNINGHAM]: Yes.
[STATE]: And you testified earlier that when [you] made the request for
copies of the video, you had the same times and they correspond to those
receipts; is that correct?
[CUNNINGHAM]: Yes.
6
i. Admission of ATM Surveillance Footage
Maryland Rule 5-901(a) provides, “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.” A threshold
requirement of admissibility of evidence is whether the authenticity of the evidentiary
matter may be established. Authentication refers to a process of “laying a foundation for
the admission of such nontestimonal evidence as documents and objects.” Hornstein &
Weissenberger, Maryland Evidence: 2002 Courtroom Manual, at 306. Underlying that
process is the question of whether the evidence is what it is claimed to be. See 7 McLain,
Maryland Evidence §5-901:4(a), at 284 (“The fact that must be fulfilled by every offer of
real proof, on which its relevance depends, is that the evidence is what its proponent claims
it to be.”). Authentication “is integral to establishing [the matter’s] relevancy.” Sublet v.
State, 442 Md. 632, 656, 113 A.3d 695, 709 (2015). “Conceptually, the function of
authentication or identification is to establish, by way of preliminary evidence, a
connection between the evidence offered and the relevant facts of the case.” Hornstein &
Weissenberger, Maryland Evidence: 2002 Courtroom Manual, at 306.
Maryland’s Rule 5-901(a) is identical to its federal counterpart, Federal Rule of
Evidence 901(a). When interpreting Rule 901(a), the United States District Court for the
District of Columbia has articulated that a “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.” U.S. v. Safavian, 435 F. Supp. 2d 36, 38 (D.D.C. 2006)
(emphasis in original). The threshold of admissibility is, therefore, slight. See generally
7
Sublet, 443 Md. at 656-57, 113 A.3d at 709-10 (explaining that our adoption of Md. Rule
5-901 was intended to codify our common law of evidence, which was based upon Federal
Rule of Evidence 901(a)).
We have previously explained that, for purposes of admissibility, a videotape is
subject to the same authentication requirements as a photograph. Washington, 406 Md. at
651, 961 A.2d at 1115. Photographs and videotapes may be authenticated through first-
hand knowledge, or, as an alternative, as “a ‘mute’ or ‘silent’ independent photographic
witness because the photograph speaks with its probative effect.” Id. at 652, 961 A.2d at
1115 (quoting Washington v. State, 179 Md. App. 33, 44, 943 A.2d 704, 711 (2008)). We
explained in Washington that “so long as sufficient foundational evidence is presented to
show the circumstances under which it was taken and the reliability of the reproduction
process,” photographs may be admissible as probative evidence. Id. at 652, 961 A.2d at
1116. This Court has yet to adopt “any rigid, fixed foundational requirements” for
admission of evidence under the “silent witness” theory. See Dep’t of Pub. Safety & Corr.
Servs. v. Cole, 342 Md. 12, 26, 672 A.2d 1115, 1122 (1996). The foundational basis may
be established through testimony relative to “the type of equipment or camera used, its
general reliability, the quality of the recorded product, the process by which it was focused,
or the general reliability of the entire system.” Washington, 406 Md. at 653, 961 A.2d at
1116 (quoting United States v. Stephens, 202 F. Supp. 2d 1361, 1368 (N.D. Ga. 2002)).
In the instant case, the State sought to admit a CD containing video surveillance
footage showing the events that occurred at the Bank of America Brooklyn-Curtis Bay
ATM during the period of 11:15 p.m. to 11:35 p.m. on April 29, 2015. Prior to the CD’s
8
admission, the State relied on the testimony of Brett Cunningham, Bank of America’s
Protective Services Manager, in order to provide the foundation for the CD’s authenticity.
Mr. Cunningham described the process he used to access the ATM video footage, which
entailed accessing a Digital Video Recording “program and pull[ing] up the Curtis Bay
branch for that date and time and the cameras that I was looking for.” Once he had located
the date, time and cameras for the Brooklyn-Curtis Bay branch relative to the incident, Mr.
Cunningham testified that he then “exported the images into a digital file and emailed them
to [the detective].” Mr. Cunningham was not able to modify, cut, paste, or enhance the
video in any way. According to his testimony, Mr. Cunningham, in fact, did not even have
the ability to copy the file directly to another storage device, such as a thumb drive or DVD.
Once Mr. Cunningham received confirmation from the detective, he was then required to
submit a specific request with date, time, location and camera specifications to a Bank of
America team located in North Carolina, who would “download the requested video and
mail it directly to the detective.” Mr. Cunningham testified that he submitted requests for
two time ranges, including April 29, 2015, starting at 11:15 p.m. to end at 11:35 p.m. as
well as April 30, 2015, starting at 12:10 a.m. to end at 12:30 a.m.
When the State moved to admit the CD containing video footage of the Brooklyn-
Curtis Bay ATM location on April 29, 2015, at 11:15 p.m. to 11:35 p.m., it did so without
proffer. Petitioner’s trial counsel objected. His argument at that time belies the one
Petitioner makes before us now. Mr. Jackson’s objection at trial was based not on the
authenticity of the video footage but on its relevancy:
9
Your Honor, my concern is this, the gentleman Mr. Cunningham
indicated that he didn’t, let me see his wording, didn’t review the details of
the transaction involved. As a result, I’m not certain from listening to him
testify that he has linked this particular video to the transaction in this
particular case, and if that’s the case, that would make the relevance
questionable.
(Emphasis added.) The Circuit Court admitted the evidence over objection and explained:
Well, the receipts are in evidence already [] showing what dates and
times they are[. T]he relevance is conditional on the State tying it together,
but the jury would certainly have a basis to believe that these are the
appropriate time corresponding to those receipts and that’s all that’s
necessary to bring it in as authentic. Whether the State ultimately ties it all
together would be a matter of convincing the jury that it all relates. But the
foundation is sufficient to show that these are fair and accurate reproductions
of what those cameras captured at those particular times.
We agree.
The question of authenticity is whether the evidence “is what its proponent claims”
it to be. Rule 5-901(a). In that regard, given the foundation that the State provided through
Mr. Cunningham’s testimony, the video surveillance footage is what Mr. Cunningham
sought when he submitted his request to the Bank of America team in North Carolina: four
exterior camera angles of the ATM on April 29, 2015, starting at 11:15 p.m. to 11:35 p.m.
Mr. Cunningham testified that the CD introduced at trial was what he had viewed on May
18, 2015, when he first viewed Bank of America’s DVR program. The ATM surveillance
video does not include the 11:43 p.m. transaction, as suggested by Mr. Cunningham in his
trial testimony. Thus, the April 29, 2015, footage is not directly relevant to the 11:43 p.m.
transaction. The absence of the 11:43 p.m. transaction, however, does not detract from the
video’s authenticity. For the jury to properly rely on the video footage as a “silent witness,”
10
as probative evidence in itself, the State was required to establish “sufficient foundational
evidence [] to show the circumstances under which it was taken and the reliability of the
reproduction process.” Washington, 406 Md. at 652, 961 A.2d at 1116 (citing People v.
Bowley, 382 P.2d 591, 594 (1963)). The State elicited through Mr. Cunningham’s
testimony the process of reproduction, the reliability of that process, and whether the
reproduction was a fair and accurate representation of what the witness had viewed when
he submitted a request for the video footage to the Bank of America team in North Carolina.
We cannot say that Mr. Cunningham’s testimony failed in any respect to properly
authenticate the surveillance video footage. As the Court of Special Appeals explained,
“‘the matter in question’ is whether the video showed what it purported to show per its
running clock, namely, activity that transpired on April 29, 2015, between 11:15 p.m. and
11:35 p.m. at and about the ATM at the Bank of America Brooklyn-Curtis Bay branch.”
The surveillance footage serves as a silent witness of the continuous activity at that ATM
between 11:15 p.m. and 11:35 p.m. on April 29, 2015. We conclude that the CD containing
the video surveillance footage was properly authenticated.
The jury did not have video footage for activity at the Brooklyn-Curtis Bay Branch
ATM between 11:36 p.m. and 12:10 a.m. The evidence the jury had included an ATM
receipt with a time-stamp of 11:43 p.m. as well as a still-photograph of Mr. Jackson at the
Brooklyn-Curtis Bay ATM at 11:43 p.m. Thus, the video footage of 11:15 p.m. to 11:35
p.m., not unlike the ATM receipt, was one of several pieces of evidence available for the
jury’s consideration. The surveillance footage is obviously limited in what it shows, e.g.
that Mr. Jackson was at the Brooklyn-Curtis Bay branch ATM during that time period. The
11
video footage could not have proven, for instance, how much money Mr. Jackson withdrew
from the account at that time. Notwithstanding, a jury is charged to consider each piece of
evidence for its own evidentiary value. With that in mind, the discrepancy between the
running clock on the video footage and the State’s suggestion that the video footage
supported a withdrawal at 11:43 p.m. does not negate the possibility of a withdrawal
between 11:15 p.m. and 11:35 p.m. The jury could have determined that the video footage
was evidence of Mr. Jackson at the Brooklyn-Curtis Bay ATM during the timeframe of
11:15 p.m. to 11:35 p.m. Additionally, the jury could have reasonably determined that the
ATM receipt with a time-stamp of 11:43 p.m., in conjunction with the still photo with the
time stamp of 11:43 p.m., showed that Mr. Jackson was at the ATM at 11:43 p.m. The
jury, therefore, could have reasonably concluded that Mr. Jackson was involved with all of
the unauthorized withdrawals from Mr. Daggett’s account.
Petitioner’s concern that the intermediate appellate court’s holding would invite
distortion or misrepresentation of evidence that is presented to the jury highlights the
essential role of the trial judge as “gatekeeper.” See Sublet, 442 Md. at 656, 113 A.3d at
709 (“The role of judge as ‘gatekeeper’ is essential to authentication, because of jurors’
tendency, ‘when a corporal object is produced as proving something, to assume, on sight
of the object, all else that is implied in the case about it[.]’” (Emphasis in original)). In this
case, the trial judge astutely recognized that the State had sufficiently established the
foundation for the video footage’s authenticity, even if the video’s relevance remained
conditional on the rest of the State’s case. The Court of Special Appeals agreed. Writing
for the intermediate appellate court, the Honorable Lawrence Rodowsky succinctly
12
posited, “As admissible evidence, the April 29 disk segment was available for argument.”
We agree.
ii. Admission of PNC Bank Statements
Mr. Jackson posed a second inquiry in his petition for certiorari, which asked
“whether records of regularly conducted business activities can be authenticated through
inferences and ‘common knowledge,’ even though Md. Rule 5-902 requires ‘testimony of
authenticity.’” Mr. Jackson argues that Md. Rule 5-902 “governs authentication of
business records” and directs us to consider the extrinsic evidence that may be used to
authenticate a document under Md. Rule 5-902. Although Mr. Jackson challenges whether
the bank statements were genuine, he rejects any applicability of Md. Rule 5-901 or Md.
Rule 5-803(b)(6) to a business record.
Maryland Rule 5-902(b)(2), which describes the procedure for admitting self-
authenticating documents, provides:
Testimony of authenticity as a condition precedent to admissibility is
not required as to the original or a duplicate of a record of regularly
conducted business activity, within the scope of Rule 5-803(b)(6) that has
been certified pursuant to subsection (b)(2) of this Rule, provided that at least
ten days prior to the commencement of the proceeding in which the record
will be offered into evidence, (A) the proponent (i) notifies the adverse party
of the proponent's intention to authenticate the record under this subsection
and (ii) makes a copy of the certificate and record available to the adverse
party and (B) the adverse party has not filed within five days after service of
the proponent's notice written objection on the ground that the sources of
information or the method or circumstances of preparation indicate lack of
trustworthiness.
At the outset, we note that the PNC bank statements were not admitted as self-
authenticating documents, pursuant to Md. Rule 5-902. The Circuit Court recognized that
13
the bank statements were evidence of regularly conducted business activity and admitted
the statements as such. The Court of Special Appeals affirmed on those grounds. We are
not persuaded that Md. Rule 5-902 is the germane focus of our inquiry.
The State argues that Md. Rule 5-901 is the proper vehicle for reviewing the
authenticity of the bank statements. As we have stated, Md. Rule 5-901(a) provides, “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.” Recognizing that the trial court admitted the PNC bank statements as
a business record under Md. Rule 5-803(b)(6), we nevertheless determine whether, as a
condition precedent to admission, the bank statements were authentic.
Although “any authenticity determination is context-specific[,]” a trial judge need
only “determine that there is proof from which a reasonable juror could find that the
evidence is what the proponent claims it to be.” Sublet, 442 Md. at 678, 113 A.3d at 722.
Extrinsic evidence used to establish the necessary evidentiary foundation for authenticating
a business record is generally in-court testimony; however, “business records can also
sometimes be authenticated by circumstantial evidence of the manner of creation and
nature of the document involved.” State v. Bryant, 361 Md. 420, 429, 761 A.2d 925, 930
n. 4 (2000); see also Davis v. Goodman, 117 Md. App. 378, 417, 700 A.2d 798, 817 (1997)
(“In some cases the court may properly conclude from the circumstances and the nature of
the document involved that it was made in the regular course of business.” (quoting 6
McLain, Maryland Evidence § 803(b).1, at 379 (1987))).
14
In the instant case, the State introduced the PNC bank statements of Mr. Daggett’s
business through his testimony. Mr. Daggett testified that he went to his bank after the
incident, told the bank what happened, and explained that he needed to know how much
money had been withdrawn from his account. He received the statements directly from his
bank’s personnel. As the trial judge noted, the bank statements “had all the indicia of a
regular statement provided to the business by PNC Bank.” The bank statements were
admitted as the State’s exhibit and contain four pages that reflect a monthly statement.
Appended to the monthly statement is a two-page “Account Transaction Detail Report.”
The statement portion shows a monthly accounting of all activity associated with Mr.
Daggett’s business, Double D Tire LLC. The “Account Transaction Detail Report”
presents the transactions associated with the Double D Tire LLC account in chronological
order. The report provides some additional information that is not available in the monthly
statement. For example, the report lists whether the transaction required the use of Mr.
Daggett’s personal identification number and provides a daily account balance in
chronological order.
On the monthly statement portion of the bank statements, there are four transactions
under the category “ATM/Misc. Check Card Transactions” that are highlighted. The four
highlighted transactions are ATM withdrawals from the Brooklyn-Curtis Bay location in
the amounts of $203, $503, $203, and $203. On the “Account Transaction Detail Report,”
there are five transactions highlighted. Four of the five transactions that are highlighted
15
are ATM withdrawals from the Brooklyn-Curtis Bay location.6 At trial, Mr. Daggett
testified that the blue highlighting represented the transactions that were unauthorized.
Over Mr. Jackson’s objection, the bank statements were admitted. When admitting the
bank statements, the trial judge reasoned, “Well, I am satisfied that he has testified he got
it from the bank, he’s familiar with the account, and he examined it as the transactions that
he did not make. He also said it had transactions that [he] did make. There’s sufficient
authenticity to it, I’ll admit it.” In addition to the extrinsic evidence of Mr. Daggett’s
testimony, the Court had already admitted the two ATM receipts that had been recovered
from Mr. Daggett’s stolen vehicle. These receipts bolstered the authenticity of the bank
statements because the receipts each showed a withdrawal of $200 with an additional $3
fee for “ATM Owner Fee.” This amount, $203, appeared on the monthly statement as well
as the “Account Transaction Report” as being two of the four ATM withdrawals from the
Curtis Bay-Brooklyn ATM. The ATM receipts also indicated that the ATM location was
the Bank of America Curtis Bay-Brooklyn ATM. We conclude that the bank statements
were sufficiently authenticated.
6
The fifth highlighted transaction is a withdrawal in the amount of $50 that posted to Mr.
Daggett’s account on April 30, 2015 and did not require the use of his personal
(continued . . . )
(. . . continued)
identification number. The Court of Special Appeals explained the lack of significance the
highlighting of this fifth withdrawal has on the remaining four ATM withdrawals: “The
fact that the highlighter wielder overenthusiastically included a withdrawal that [Mr.]
Daggett made that day did not prejudice [Mr.] Jackson. The proof was that only bank card
withdrawals made after the robbery were unauthorized and these totaled over $1,000.”
16
We turn now to whether the bank statements were properly admitted under Md.
Rule 5-803. The Maryland Rules of Evidence preclude the admission of hearsay. Md.
Rule 5-802.7 Notwithstanding, the Rules recognize certain delineated exceptions to the
hearsay rule, even when the declarant is available as a witness. See, e.g., Md. Rule 5-
803. One of those delineated exceptions allows for the admission of business records,
and provides:
A memorandum, report, record, or data compilation of acts, events,
conditions, opinions, or diagnoses if (A) it was made at or near the time of
the act, event, or condition, or the rendition of the diagnosis, (B) it was made
by a person with knowledge or from information transmitted by a person with
knowledge, (C) it was made and kept in the course of a regularly conducted
business activity, and (D) the regular practice of that business was to make
and keep the memorandum, report, record, or data compilation. A record of
this kind may be excluded if the source of information or the method or
circumstances of the preparation of the record indicate that the information
in the record lacks trustworthiness. In this paragraph, “business” includes
business, institution, association, profession, occupation, and calling of every
kind, whether or not conducted for profit.
Md. Rule 5-803(b)(6).
The purpose of the business record exception is premised on the theory that
“because the records are reliable enough for the running of a business, in part because of
the business duty imposed on the reporter and the recorder, that they are reliable enough to
be admissible at trial.” Hall v. Univ. of Md. Med. Sys. Corp., 398 Md. 67, 89, 919 A.2d
1177, 1190 (2007). We have long since recognized that one of the purposes of the business
records exception was to “bring the rule of evidence nearer to the standards in responsible
7
Maryland Rule 5-802 provides, “Except as otherwise provided by these rules or permitted
by applicable constitutional provisions or statutes, hearsay is not admissible.”
17
action outside of the courts.” Bethlehm-Sparrows Point Shipyard v. Scherpenisse, 187 Md.
375, 381, 50 A.2d 256, 260 (1946). This rationale narrowed the need for statements
received as testimony to be from personal knowledge or observation. Id.
Subject to the four requirements of Rule 5-803(b)(6), bank statements may be
admissible as business records. Bartlett v. Portfolio Recovery Assoc., LLC, 438 Md. 255,
91 A.3d 1127 (2014). The rationale for admitting bank records as an exception to hearsay
is that “bank records, particularly when the bank has no stake in the outcome of litigation,
have a strong indicia of reliability.” Id. at 284, 91 A.3d at 1144 (citing Chapman v. State,
331 Md. 448, 459, 628 A.2d 676, 682 (1993)); see also 6A McLain, Maryland Evidence,
§ 803(6):1(d) (2013) (“The primary rationale for the business records hearsay exception is
a circumstantial guarantee of sincerity, because the business will want accurate records on
which to rely.”).
To lay the foundation for admissibility of a business record, it is not necessary that
the testifying witness have “first-hand knowledge of the matter,” be the one to have
prepared the report, or have “observed the preparation of the report.” Bartlett, 438 Md. at
284-85, 91 A.3d at 1145 (quoting Dep’t of Pub. Safety & Corr. Servs. v. Cole, 342 Md. 12,
29, 672 A.2d 1115, 1123 (1996)); see also Hall, 398 Md. at 89, 919 A.2d at 1190
(explaining that a business record’s inherent reliability exists “regardless of whether the
person who actually did the recording has personal knowledge of the information
recorded.” (Emphasis in original)). In fact, “it is well-established that a custodian of
business records does not have to be the custodian ‘who was such at the time the record
was made.’” Bartlett, 438 Md. at 284, 91 A.3d at 1145 (quoting Killen v. Houser, 251 Md.
18
70, 76, 246 A.2d 580, 583 (1968)). The “trustworthiness and reliability” of a bank
statement as a business record of the bank “arises from the fact that entries recording an
act or event are made in the regular course of business and it is the regular course of
business to record those entries at the time of that fact or event or soon thereafter.” Id. at
284, 91 A.3d at 1144 (quoting State v. Garlick, 313 Md. 209, 222, 545 A.2d 27, 33 (1988)).
As we have observed, the PNC bank statements were not admitted at trial as self-
authenticating documents. The State instead relied on the testimony of Mr. Daggett to
establish the authenticity of the bank statements as business records. Taking each
requirement of Md. Rule 5-803(b)(6) in seriatim, we begin with requirement (A)—that the
business record be “made at or near the time of the act, event, or condition, or the rendition
of the diagnosis.” When the State asked Mr. Daggett about the bank statement’s time
period, he explained:
[MR. DAGGETT]: Oh, yes, it was, let’s see where it’s at, that’s the reason
they gave me the printout because I went directly there when this happened,
so they could tell everything that was taken out at that time.
The bank statement showed all transaction details from April 1, 2015, through April 30,
2015, including an entry on the “Account Transaction Detail Report” that included a
withdrawal transaction on April 30, 2015, that was not an ATM withdrawal. The ATM
transactions that occurred on the evening of April 29, 2015, and the early morning of April
30, 2015, posted to the bank statement on “4/30.” The entries in the bank statement
reflected that the bank recorded the transactions “at or near the time” they occurred.
19
Next, subsection (B) of the Rule requires that the record be made “by a person with
knowledge or from information transmitted by a person with knowledge[.]” First, Mr.
Daggett explained that he received the statements from his bank’s personnel after he told
the bank representative what happened with his ATM card and requested an accounting.
Second, the bank statement reflects information of which PNC bank, as a financial
establishment, had knowledge. For example, the bank statement contains the following
categories of information and transactions: deposits and other additions, checks and other
deductions, daily balance, activity detail, ATM/Misc. check card transactions, services
charges and fees, as well as other deductions. Each entry, under all of the aforementioned
categories, contains a unique numerical reference number in addition to the date, time
and/or, if applicable, corresponding check number of the transaction. Specific to the
ATM/Misc. check card category, next to each transaction is an address description of the
ATM location. There is also an additional alpha-numeric identifier that is altogether
different from the numerical reference number. For example, the four ATM withdrawal
transactions that occurred at the Brooklyn-Curtis Bay ATM appear on the statement as
illustrated below:
Date Amount Transaction Reference
Posted description number
04/30 203.00 ATM Withdrawal
*Brooklyn-Curtis B Baltimore MD CIMDN2350 0015231
04/30 503.00 ATM Withdrawal
*Brooklyn-Curtis B Baltimore MD CIMDN2350 0015233
04/30 203.00 ATM Withdrawal
*Brooklyn-Curtis B Baltimore MD CIMDN2350 0015235
20
04/30 203.00 ATM Withdrawal
*Brooklyn-Curtis B Baltimore MD CIMDN2350 0015237
All four transactions share the same alpha-numeric identifier of “CIMDN2350.” This same
alpha-numeric identifier directly corresponds with four entries under “ATM Withdrawal
Fee,” which show the service charges imposed by PNC bank. Furthermore, this alpha-
numeric identifier also matched the two ATM receipts that had been recovered from the
stolen vehicle.8
On the PNC bank statement, under the category of “Service Charges and Fees,”
there were four entries of “ATM Withdrawal Fee” in the amount of $2.50, the service
charge imposed by PNC for use of a non-PNC Bank ATM, and the fees posted on “04/30.”
The reference number for each of the PNC ATM withdrawal fees followed sequentially
from its corresponding ATM withdrawal transaction that occurred at the Brooklyn-Curtis
Bay ATM. In addition to testimony from Mr. Daggett, the jury could infer from this
business record that PNC bank reflected on its statement the information of which it had
knowledge or information that it had received from another financial institution, namely
Bank of America.
Finally, subsections (C) and (D) require that the record be “made and kept in the
course of a regularly conducted business activity” and that “the regular practice of that
business was to make and keep the memorandum, report, record, or data compilation.” The
8
Mr. Cunningham testified that this alpha-numeric identifier was the machine number for
the Bank of America ATM at the Brooklyn-Curtis Bay location.
21
Circuit Court concluded that the PNC bank statement “had all the indicia of a regular
statement provided to the business by PNC Bank” and the trial judge admitted, over defense
counsel’s objection, the PNC bank statement.9 We agree with the trial judge’s conclusion,
and reiterate that bank records “have a strong indicia of reliability[.]” Bartlett, 438 Md. at
284, 91 A.3d at 1144. To be sure, PNC Bank had no stake in the outcome of Mr. Jackson’s
case. See Bartlett, 438 Md. at 284, 91 A.3d at 1144.
In this way, the PNC bank statements are different from the toxicology report
offered as a business record in Bryant. In that case, having determined that the certification
cover letter as well as the toxicology report failed to meet the requirements of a self-
authenticating document, under Md. Rule 5-902, we explored whether the report satisfied
Md. Rule 5-803(b)(6) as a business record. 361 Md. at 429-30, 761 A.2d at 930. We
concluded that the testifying witness did not establish the necessary evidentiary foundation
because the witness “never testified that the report was made at or near the time of the tests
or that it was made by a person with knowledge, as Rule 5-803(b)(6) requires.” Id. at 430,
761 A.2d at 930 (emphasis in original). See also Bernadyn v. State, 390 Md. 1, 20, 887
A.2d 602, 613 (2005) (rejecting the admissibility of a medical billing statement as a
business record for purposes of establishing the defendant’s address). The issue that
9
There was considerable discussion, and perhaps confusion, during a bench conference
regarding whether the State was moving to admit the PNC bank statement as a business
record of Mr. Daggett’s business, or whether the State was moving to admit the PNC bank
statement as a business record of PNC Bank. The Circuit Court judge correctly observed
that, “It is a record of the bank, it’s a record of the bank provided to him in his business, so
that its contents may be referred to, there are some links, there’s also some discrepancies
in timing, but there are links to other issues that he or other witnesses have testified to.”
22
proved fatal in the Bryant case is of no moment in the instant case because the jury heard
Mr. Daggett’s testimony that he received the bank statements when he went to his bank
after the home invasion to inquire what had been withdrawn from his account.
CONCLUSION
Accordingly, we affirm the judgment of the Court of Special Appeals. The trial
court did not err when it admitted the CD of the ATM surveillance footage, as the CD was
properly authenticated under Md. Rule 5-901. Additionally, the trial court did not err when
it admitted the victim’s bank statements as a business record, pursuant to Md. Rule 5-
803(b)(6).
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY PETITIONER.
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