HEADNOTE: Boston v. State, No. 871, September 2016 Term

MARYLAND WIRETAP ACT — WILLFUL INTERCEPTION OF TELEPHONE 

CALL — RECORDING OF TELEPHONE CALL BETWEEN INMATE AND 

THIRD PARTY ADDED TO CALL BY INITIAL RECIPIENT OF CALL WAS 

NOT WILLFUL INTERCEPTION AND THEREFORE WAS NOT A 

VIOLATION OF WIRETAP ACT. 

The day after victim was shot multiple times in the course of a home invasion, the 

appellant spoke on the telephone to his brother, who was incarcerated at the Baltimore 

County Detention Center. The brother placed the telephone call to his girlfriend. Before 

they could speak to each other, a pre-recorded announcement informed them that their 

call would be recorded. The brother and his girlfriend conversed, and during the call the 

brother asked his girlfriend to dial his brother (the appellant) into the call. She did so. In 

the portion of the call between the appellant and his brother, the appellant made 

incriminating remarks about the crimes against the victim. Immediately before trial, 

defense counsel orally moved in limine to keep the recorded telephone call out of 

evidence as having been obtained in violation of the Wiretap Act, because the call was 

recorded without the appellant’s consent. The court denied the motion. The appellant 

was convicted of numerous crimes against the victim and after sentencing noted an 

appeal. 

Held: Judgments affirmed. The Maryland Wiretap Act makes it illegal to 

willfully intercept a telephone conversation. In certain circumstances willful interception 

is legal, including if the parties to the telephone conversation consent to its being 

recorded. Under the Act, with some exceptions, a recording of a telephone conversation 

is not admissible in evidence if it was obtained in violation of the Act.

The appellant was not on the line when the pre-recorded announcement was 

played, so there was no evidence that when he was added to the call the appellant knew 

that the call was being recorded and implicitly consented by proceeding to speak. Even if 

the call was recorded without the appellant’s consent, however, it only was recorded in 

violation of the Wiretap Act if it was “willfully intercepted.” Willful in this context 

means intentional-purposeful. The appellant bore the burden to show that the Detention 

Center intercepted his telephone conversation with his brother willfully. He produced no 

evidence to show that the Detention Center had knowledge that a third party (the 

appellant) was added to the telephone call the appellant’s brother made to his girlfriend, 

and that it therefore had the power or control over the call that would make the recording 

of the brother’s conversation with the appellant willful. Absent proof that the recording 

was obtained in violation of the Act, the court properly denied the motion in limine.
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 871

September Term, 2016

______________________________________

JATWAN DERRICK BOSTON

v.

STATE OF MARYLAND

______________________________________

Eyler, Deborah S.,

Graeff,

Alpert, Paul E.

 (Senior Judge, Specially Assigned),

 

JJ.

______________________________________

Opinion by Eyler, Deborah S., J.

______________________________________

Filed: December 20, 2017

Circuit Court for Baltimore County

Case No. 03K14006745
A jury in the Circuit Court for Baltimore County convicted Jatwan Derrick Boston 

of attempted first degree murder, armed robbery, first degree burglary, use of a firearm in 

a crime of violence, and illegal possession of a regulated firearm. The court imposed

concurrent sentences of life in prison for attempted murder, five years for illegal 

possession of a firearm, and twenty years for the remaining crimes.

On appeal, Boston presents three questions, which we have reordered and slightly 

rephrased: 

I. Did the trial court err by admitting into evidence a recording of a 

telephone conversation between Boston and his brother?

II. Did the trial court err by admitting into evidence a gun seized during 

Boston’s arrest?

III. Did the trial court err by admitting into evidence a jacket that police 

saw at the crime scene but did not take into custody until days later?

We answer all three questions in the negative and shall affirm the judgments.

FACTS AND PROCEEDINGS

At trial, the following facts were adduced.1

At around 10:00 p.m. on November 29, 2014, three masked men burst into Steven 

Matthews’s house in Catonsville and attacked him. The assailants kicked in Matthews’s 

 

1 The State called Steven Matthews, the victim; ten Baltimore County Police 

Department officers or detectives; three forensic witnesses employed by that police 

department (a tool mark examiner, a latent print examiner, and a forensic biologist); and 

one DNA expert employed by a private testing laboratory. It moved numerous 

documents and items into evidence. Boston did not testify or put on a defense case.
-2-

front door, pointed guns at him, and tied him up with an exercise band. They hit him 

with nearby objects and ransacked his house.

Five minutes after the three assailants entered, Boston entered the house as well. 

He was not wearing a mask, and Matthews recognized him from the neighborhood.

Boston took some “petty stuff,” like video game consoles, and then approached 

Matthews, put a gun “five inches” from his head, and pulled the trigger. The gun did not 

fire. Boston turned to one of the other men, later identified as David Grant, and said:

“We got to kill [Matthews] because he seen my face.” Grant, who was standing about six 

feet away from Matthews, fired his gun at Matthews. Although the bullet struck 

Matthews in the back of his head, Matthews managed to break free from the exercise 

band, get up, and go after Grant. As the two were “tussling . . . on the ground,” Grant 

fired two more shots at Matthews’s head. Matthews tried to protect his head with his 

hands, to no avail.

Grant got up from the ground, and the four men left with two televisions and the 

keys to Matthews’s BMW X6. Still functional despite the attack, Matthews stayed on the

floor, waiting for the assailants to leave. After “a couple of minutes,” he walked outside

to get help from a neighbor. He saw Boston, Grant, and a third assailant inside his

BMW, seemingly about to drive off. The fourth assailant left in the car the assailants 

originally arrived in. When Boston saw Matthews, he and the third assailant jumped out 

of the car and attacked him. The three ended up on the ground, fighting. Boston called 

for Grant, who got out of the car with a gun, got close to the fighting men, and shot 

Matthews in the back of his arm. Matthews kicked the gun out of Grant’s hand, but it 
-3-

discharged and the bullet struck the back of Matthews’s leg. When Matthews attempted 

to get up to run away, Grant shot him in the back of the head. Boston, Grant, and the 

third assailant got back in Matthews’s BMW and drove away.

Somehow, Matthews got himself to his next door neighbor’s house, and the 

neighbor called 911. On the 911 tape, Matthews can be heard in the background telling 

his neighbor that Boston had attacked him. Matthews was taken to a hospital, where he 

underwent surgery. Following the surgery, Matthews spoke with investigating officers 

and told them that Boston, along with three other men, had attacked him and burglarized 

his house. The officers showed Matthews a photograph of Boston and he confirmed that 

Boston was one of the attackers. 

 On December 1, 2014, police located Boston in Baltimore City. They surveilled

him as he and Grant and an unidentified woman entered a vehicle near the 3400 block of 

Round Road. The police followed the vehicle and eventually made a traffic stop during 

which Boston and Grant were arrested. The police recovered a “Colt .45 caliber 

handgun” from “the front waistband of . . . Boston’s sweatpants.” They also recovered a 

“.32 semi-automatic handgun” from where Grant had been sitting in the vehicle 

immediately before being arrested. 

We shall include additional facts in our discussion of the issues.
-4-

DISCUSSION

I.

The Recorded Telephone Conversation

At the times relevant to this case, Jonte Lee, Boston’s older brother, was 

incarcerated at the Baltimore County Detention Center (“Detention Center”). On 

November 30, 2014, the day after Matthews was attacked, Lee placed a telephone call 

from the Detention Center to his girlfriend. Before Lee started to speak, an automated 

recording announced: “This call will be recorded and subject to monitoring at any time.” 

Near the beginning of the conversation, Lee asked his girlfriend to call Boston 

toward the end of the call. After Lee and his girlfriend had talked for a while, Lee told 

her to try to call Boston. She then dialed Boston into the call. The pertinent portions of 

the recorded call with Boston on the line are as follows:

MR. LEE: What’s up, dumb ass?

[BOSTON]: What’s up, dumb ass?

MR. LEE: What are you—what you— are you good?

[BOSTON]: Yeah, man. I’m all right.

MR. LEE: You sure? I know it ain’t nothing you can talk to me about but

—you feeling me?

[BOSTON]: Yeah. Everything’s (indiscernible) I ain’t said nothing 

(indiscernible).

MR. LEE: I’m putting you in my prayers; you heard me?

[BOSTON]: Yeah, bro.
-5-

MR. LEE: I just wanted to tell you I love you, before — before — before 

me anything.

[BOSTON]: I love you, too, man.

MR. LEE: Just in case the n***** don’t get back in contact; you feeling 

me? But I hope you stay (indiscernible); you hear me?

[BOSTON]: Yeah.

* * *

[BOSTON]: Yeah. I’m going around (indiscernible) tomorrow, for real.

MR. LEE: Oh, why, oh, why, oh, why, oh why? Damn, yo.

[BOSTON]: I know you heard though.

MR. LEE: Yeah. Mother f—ker[2] Kim called Keonia (phonetic) and shit.

[BOSTON]: Huh?

MR. LEE: Kim called Keonia.

[BOSTON]: What about?

MR. LEE: This n*****, yo; on, my God, yo. Hello?

[BOSTON]: (Indiscernible) lit them.

MR. LEE: Huh?

[BOSTON]: He lit.

MR. LEE: Huh?

[BOSTON]: He lit like wheezing.

MR. LEE: He live?

 

2 This alteration was made by the transcriber.
-6-

[BOSTON]: He lit.

MR. LEE: Lit?

[BOSTON]: He light up (indiscernible) he got a light on him.

MR. LEE: Oh.

(Pause.)

MR. LEE: Damn, yo.

[BOSTON]: (Indiscernible).

MR. LEE: (Indiscernible) was it — was it — was it — you feeling me? 

Does it come out?

[BOSTON]: No.

MR. LEE: It ain’t coming how you want it to?

[BOSTON]: No.

MR. LEE: I hope you all right, my n*****.

[BOSTON]: They say Shorty got hit a (indiscernible) times, twice in the 

face, once in the head (indiscernible).

MR. LEE: Yeah, I heard.

(Pause.)

[BOSTON]: I don’t know, bro.

MR. LEE: Yeah. I heard.

(Pause.)

MR. LEE: That shit crazy. Oh, and that Kim — Kim called Keonia, talking 

about he saying — saying the name; you feeling me?

[BOSTON]: Yeah. He say — you know.
-7-

(Pause.)

MR. LEE: I just wanted to make sure you was good, my n*****. Yep.

[BOSTON]: Yeah.

MR. LEE: I’m going to try —

[BOSTON]: I’m —

MR. LEE: Huh?

[BOSTON]: — (indiscernible) might be out of town for a little bit.

MR. LEE: I’m going to try to call you again tomorrow; you hearing me, 

dummy?

[BOSTON]: All right. I’m not sure if she’ll remember but I’m going to 

switch to another — but I’m (indiscernible) —

* * *

MR. LEE: Yo, make sure you write me a letter or something real quick, if 

you can, tonight; you feeling me? 

[BOSTON]: Huh?

MR. LEE: And drop it off.

[BOSTON]: Huh?

MR. LEE: Drop it off somewhere or mail it to me or something; you 

feeling me, so I can hear (indiscernible). 

[BOSTON]: I’m going to write it and then drop it off at (indiscernible). 

MR. LEE: All right. So, I can hear from you, my n*****.

[BOSTON]: All right.

MR. LEE: I love you.
-8-

[BOSTON]: I love you, too, bro.

MR. LEE: All right. And keep checking on — keep calling my girl phone, 

letting her know you all right, n*****, so I ain’t got to worry about it. 

At the outset of trial, before jury selection, Boston’s lawyer orally moved in limine

to preclude the State from introducing the recorded telephone call between Lee and 

Boston into evidence. She argued that Boston “did not waive his right to not be 

recorded” and that the conversation did not specifically mention Matthews or the date on 

which the attack on Matthews took place and therefore was too vague to be admitted. 

Finally, she argued that the conversation was “extremely prejudicial” and that its

prejudice outweighed its probative value. The trial court denied the motion. Later, the 

court granted defense counsel a continuing objection based on these arguments.

The trial proceeded and eventually the prosecutor sought to introduce the recorded 

conversation through Detective Matthew Barnes, the lead detective in the case. Defense 

counsel objected on the basis of relevance, and the court recognized her continuing 

objection. The court denied the motion. The prosecutor played for the jury the very 

beginning of the recorded call, in which the automated recording was played and Lee 

asked his girlfriend to add Boston to the call later, and the portion of the recorded call 

between Lee and Boston. Detective Barnes identified Boston’s voice on the call.3

 

3 An audio disc of the full recorded telephone call—not just the portion in which 

Lee and Boston were conversing—was moved into evidence. During Detective Barnes’s 

testimony, the part of the telephone call in which Lee and Boston spoke was played. The 

entire trial, including recordings played for the jury, was digitally recorded, i.e., there was 

no court reporter present.

 

(Continued...)
-9-

On appeal, Boston argues that the recording of his telephone conversation with his 

brother was inadmissible as a matter of law because it was made in violation of the 

Maryland Wiretapping and Electronic Surveillance Act, Md. Code (1974, 2013 Repl. 

Vol.), §§ 10-401 et seq. of the Courts and Judicial Proceedings Article (“CJP”) (“the 

Wiretap Act”). He further argues that, in any event, the conversation was not sufficiently 

linked to the attack on Matthews to be relevant evidence and, if it was, any probative 

value it had was outweighed by the likelihood that it would cause unfair prejudice.

A.

Boston maintains that his telephone call with Lee was recorded in violation of the 

Wiretap Act because he did not consent to its being recorded. Specifically, he was added 

to the call after the warning that it was being recorded was played, so he did not know the 

call was being recorded and therefore could not have consented. The State responds that 

 

(...continued)

For reasons we do not understand, the court reporter who prepared the trial 

transcript did not include in her transcription the portion of the recording that was played 

for the jury at trial. After this appeal was noted, counsel for Boston filed an unopposed 

motion to supplement the record, which was granted. He arranged for a court reporting 

company to prepare 1) a transcript of the recorded telephone conversation between 

Boston and Lee that was played at trial; 2) a transcript of the audio disc of the entire 

telephone call; 3) an excerpt of the automated warning at the beginning of the call; and 4) 

an excerpt, apparently transcribed directly from the audio disc, of the portion of the call 

between Lee and Boston. We have quoted from the transcript of the recording of the 

conversation between Lee and Boston as it was played at trial, as we know the jurors 

heard that. We do not know whether they listened to the audio disc during deliberation. 

We point this out only because there are minor discrepancies between the transcripts.
-10-

Boston failed to make an adequate showing that the recording was obtained in violation 

of the Wiretap Act.

4

“Except as otherwise specifically provided in [the Wiretap Act] it is unlawful for 

any person to . . . [w]illfully intercept . . . any wire, oral, or electronic communication.” 

CJP § 10-402(a)(1).5 A telephone conversation is a “wire communication” within the 

meaning of the Wiretap Act. Fearnow v. Chesapeake & Potomac Tel. Co. 104 Md. App. 

1, 34–35 (1995), rev’d on other grounds, 342 Md. 363 (1996).6 The meaning of 

 

4 Under Rule 4-252(a)(3) and (b), a motion to suppress evidence based on the 

Wiretap Act is a mandatory motion to be made before trial, within the time limits 

specified, unless the court orders otherwise, for good cause shown. Boston did not make 

his motion in conformity with the rule. When his counsel made the motion, orally, before 

the jury was selected, the State did not object, however, or argue waiver, and the court 

considered and ruled on the motion. On appeal, the State points out, in a footnote, that 

Rule 4-252 was not complied with, but does not argue that Boston’s issue is not 

preserved for review, was waived, or should not be considered by this Court.

5

It also is illegal, except as specifically provided, for any person to willfully 

disclose, or endeavor to disclose, or willfully use, or endeavor to use, the contents of a 

wire, oral, or electronic communication obtained in violation of the Wiretap Act. See

CJP § 10-402(a)(2) and (3).

6 The Wiretap Act defines “wire communication” as

any aural transfer made in whole or in part through the use of facilities for 

the transmission of communications by the aid of wire, cable, or other like 

connection between the point of origin and the point of reception (including 

the use of a connection in a switching station) furnished or operated by any 

person licensed to engage in providing or operating such facilities for the 

transmission of communications.

Maryland Code (1974, 2013 Repl. Vol.), § 10-401(18) of the Courts and Judicial

Proceedings Article (“CJP”).
-11-

“intercept” under the Wiretap Act encompasses electronic recording.7 In addition to 

proscribing unlawful acts, the Wiretap Act identifies acts that are lawful. As pertinent 

here, an interception is lawful “where all of the parties to the communication have given 

prior consent to the interception[.]” CJP § 10-402(c)(3).

8

 A communication that is

intercepted unlawfully under the Wiretap Act may not be received in evidence at trial. 

CJP § 10-405(a).9 See Seal v. State, 447 Md. 64, 71 (2016).

There is no evidence that Boston expressly or implicitly consented to having his 

telephone call with Lee recorded. See footnote 15, infra.

10

 Accordingly, the recording of 

the telephone call would be an unlawful act under the Wiretap Act if the call was 

 

7 The Wiretap Act defines “intercept” to mean “the aural or other acquisition of 

the contents of any wire, electronic, or oral communication through the use of any 

electronic, mechanical, or other device.” CJP § 10-401(10).

8 Even if all parties have given prior consent to the interception, however, it is not 

lawful if “the communication is intercepted for the purpose of committing any criminal 

or tortious act in violation of the Constitution or laws of the United States or this State.” 

CJP § 10-402(c)(3).

9 CJP section 10-405(a) provides:

[With an exception that is not relevant], whenever any wire, oral, or 

electronic communication has been intercepted, no part of the contents of 

the communication and no evidence derived therefrom may be received in 

evidence in any trial, hearing, or other proceeding in or before any court, 

grand jury, department, officer, agency, regulatory body, legislative 

committee, or other authority of this State, or a political subdivision thereof 

if the disclosure of that information would be in violation of this subtitle.

10 Nor is there any evidence that the interception of that call was lawful under any 

other provision of CJP section 10-402.
-12-

“willfully intercepted” by the Detention Center. CJP § 10-402(a)(1).11 In Deibler v. 

State, 365 Md. 185 (2001), the Court of Appeals addressed the meaning of “willfully” for 

purposes of CJP section 10-402(a). There the defendant placed a recording device in the 

bathroom of his friend’s family’s house. After the friend’s aunt used the bathroom, took 

a shower, and dried herself off, she noticed an unfamiliar piece of equipment hidden in 

the bathroom. As she and the friend’s father tried to figure out what it was, the device 

recorded their conversation. Ultimately, the defendant admitted placing the equipment to 

record sounds in the bathroom, but maintained that the interception of the conversation 

between the friend’s aunt and his father was not willful, under the Wiretap Act, because 

he did not know that his conduct was prohibited by the Wiretap Act.

The Court reviewed the “bewildering array” of meanings given the word “willful” 

under federal and Maryland law, and ultimately concluded that the defendant need not 

have acted with knowledge that he was violating the Wiretap Act to have “willfully 

intercepted” the conversation in question. As relevant here, the Court held that for 

purposes of CJP sections 10-402(a) and 10-405, “an interception that is not otherwise 

specifically authorized is done willfully if it is done intentionally-purposely.” Id. at 199. 

Because the defendant “intentionally and deliberately intercepted an oral 

communication,” he violated CJP section 10-402(a). Id. at 201. 

 

11 The Wiretap Act defines a “[p]erson” to include “any employee or agent of this 

State or a political subdivision thereof[.]” CJP § 10-401(14). The Detention Center is a 

part of the Baltimore County Department of Corrections.
-13-

In the case at bar, the Detention Center willfully intercepted the telephone 

conversation between Lee and his girlfriend, i.e., it recorded their conversation 

intentionally and with the purpose of doing so. At the inception of the call, the Detention 

Center warned Lee and his girlfriend that their call was being recorded and would be 

monitored. They proceeded to talk, thereby consenting to their call being recorded. See 

State v. Maddox, 69 Md. App. 296, 301(1986) (stating that consent for purposes of the 

Wiretap Act can be expressly or implicitly given). The question is whether the Detention 

Center “willfully intercepted” the telephone conversation between Lee and Boston, which 

happened during the originally placed call when Lee’s girlfriend added Boston to the call. 

This question has not been addressed in Maryland. It has been addressed twice in 

Massachusetts, however, which has a wiretap act that in all significant respects is like 

Maryland’s Wiretap Act.12

In Commonwealth v. Ennis, 439 Mass. 64 (2003), Knight, a prison inmate, placed 

a telephone call to Williams. At the beginning of the call, an automated recording 

announced that the call was being recorded and that the call would disconnect if the 

recipient (Williams) activated a three-way call, i.e., added another person to the call. 

Despite the warning, Williams dialed Ennis into the conversation. The call was not 

 

12 See Mass. Gen. Laws ch. 272, § 99 (2017). The Maryland Wiretap Act was 

fashioned after the Federal Wiretap Act, 18 U.S.C. §§ 2510 et seq., but the federal statute 

requires consent by only one party to a recorded call. 18 U.S.C. § 2511(2)(c) & (d). 

Therefore, when a prisoner consents to having a telephone call in which he is 

participating recorded, it is not a violation of the Federal Wiretap Act when the other 

participant or participants in the call do not consent. See United States v. Faulkner, 439 

F.3d 1221, 1225 (10th Cir. 2006).
-14-

disconnected and no new automated warning played. Ennis made incriminating 

statements during the recorded call.

Before his trial on charges of first degree murder, Ennis moved to preclude the 

Commonwealth from introducing the recorded call into evidence, arguing that the 

department of corrections had recorded the telephone call without his consent, in 

violation of the Massachusetts wiretap act. The Commonwealth responded that the 

recorded call was admissible because the department of corrections did not willfully 

intercept Ennis’s statements. The trial court granted Ennis’s motion and the 

Commonwealth noted a permissible interlocutory appeal.

The case reached the Massachusetts Supreme Judicial Court, which reversed. The 

court explained that “not every recording of an oral communication without the 

knowledge of all participants is an ‘offense,’ nor is every such recording ‘unlawful’ or 

‘illegal.’” Id. at 68–69. The Massachusetts wiretap act, like Maryland’s statute, requires 

that, to be unlawful, a telephone call must have been intercepted, i.e., recorded,

“willfully.” The court concluded that willfulness was not shown:

The department did willfully record inmate Knight’s telephone call to 

Williams, announcing to both parties that their conversation would be 

recorded. But the department affirmatively sought to prevent any 

additional party from being added to that two-party telephone conversation. 

. . . There is no evidence that the department’s system failed or that the 

department could have taken other steps to prevent Williams from 

including Ennis in the telephone conversation. By whatever means (the 

record is not clear) Williams was able to bypass the feature intended to 

disconnect the call. Certainly the department did not “secretly record” any 

part of the resulting conversation willfully. The department informed all of 

the anticipated parties to the . . . telephone call that their communications 

would be recorded.
-15-

Id. at 69–70 (citations and footnote omitted). The court stated: “The wiretap act is not so 

broad as to impose liability each time an additional party is added to a two-party 

conversation in circumstances beyond the recorder’s knowledge, direction, or control.” 

Id. at 70.

Five years later, the Supreme Judicial Court of Massachusetts extended its holding 

in Ennis to cover a situation in which a third party was added to a call simply by having 

the telephone handed to him. In Commonwealth v. Boyarsky, 452 Mass. 700 (2008), the 

defendant was convicted of first degree murder in the beating and stabbing death of the 

victim. At trial, the Commonwealth introduced recordings of telephone calls the 

defendant made from the jail where he was being held before trial. During some of the 

calls, the recipient, who had heard the automated announcement at the outset of the call 

that the call was being recorded, passed the telephone to another person, who had not 

heard the announcement. In the portions of the calls with these third parties, the 

defendant made incriminating statements.

On appeal, the defendant argued that those calls were recorded in violation of the 

Massachusetts wiretap act, as the people with whom he was speaking had not been 

informed that they were being recorded, did not otherwise know that that was the case,

and therefore had not consented to being recorded. The court rejected this argument, 

explaining that there was no evidence “that those responsible at the jail for recording calls 

had any knowledge that the initial recipient of the defendant’s telephone call had passed 

the telephone to someone else and no evidence in any event that the jail had any power to 

prevent such an occurrence.” 452 Mass. at 707. It concluded that the interception was 
-16-

not willful: “As was true in Ennis, the absence of knowledge, power, and control on the 

jail’s part signifies that the interception could not be deemed willful.” Id.13

The facts in Ennis and Boyarsky are similar to those in the case at bar, in that a

third party was added to the call after the automated recording was played and apparently 

did not know that the call was being recorded. In Ennis, there was evidence that the 

correctional facility had a policy prohibiting three-way calls. In Boyarsky, there was no 

evidence that the correctional facility had a policy limiting calls to only the initial 

recipients. The parties here have not referenced any policy governing telephone calls 

placed by inmates at the Detention Center. We are aware, from our own research, that 

the Baltimore County Department of Corrections Inmate Handbook & Rules (2013-2014) 

(“Handbook”), which covers “Telephone Privileges” for inmates, makes telephone calls 

by inmates “subject to recording and monitoring.” Handbook at 11. The Handbook 

provides that calls by inmates are collect calls, and, if an intended recipient uses a carrier 

other than Verizon, the recipient must set up an account with ICSolutions. Id. The 

 

13 In Maryland, when one party consents to his or her telephone conversation 

being recorded but the other does not, the recording nevertheless is admissible against the 

party who consented. State v. Maddox, 69 Md. App. 296 (1986). Thus, Maryland

defendants in Boyarsky’s situation would not be heard to object to the admission of a 

recording of their telephone conversation with a third party because they consented to the 

recording, even if the third party did not.

 
-17-

“Telephone Privileges” portion of the Handbook says nothing about three-way calls or 

adding a third person to a call, however.

14

 

We agree with the reasoning of the court in Ennis and Boyarsky, and hold that 

although the Detention Center’s recording of Lee’s call to his girlfriend was an 

intentional, purposeful act, i.e., was willful, its recording of Boston’s portion of the 

telephone conversation was not. A call by an inmate at the Detention Center commences 

with its placement to the party being called, at which point the inmate and the recipient of 

the call are notified that the call is being recorded and monitored. The call is between 

those two people and the intent to record is directed to them. Even in the absence of a

policy prohibiting the later addition of a third participant to an inmate call, the Detention 

Center ordinarily would not be acting “willfully” by continuing to record the call once it 

came to include the third participant.

 

14 We also are aware from our research of The Department of Public Safety and 

Correctional Services (“Department”) Executive Directive (Number OPS. 200.0002 

Revised (effective August 31, 2015)), which “continue[d]” an inmate telephone system 

that applies to all inmates housed in a Department correctional facility. Id. at .02. 

According to the directive, “correctional facility” means a structure used to house 

inmates in the custody or detained by the Department, as defined in Correctional Services 

Article, section 1-101, Annotated Code of Maryland[,]” including inmates detained at “a 

detention or pretrial facility.” Id. at .04(B)(5)(a) and (b). Although the general statutory 

definition of “correctional facility” does not draw a distinction between State and local 

correctional facilities, it appears that the directive applies to State correctional facilities 

and local correctional facilities under State control, such as the Baltimore City Detention 

Center. The directive sets forth a number of prohibitions, including that “[a]n inmate 

may not: . . . [i]nitiate or participate in a three-way call or call forwarding[.]” Id. at 

.05D(1)(h).
-18-

In his abbreviated motion to suppress, Boston alleged only that his telephone

conversation with his brother was recorded in violation of the Wiretap Act. He did not

assert any constitutional or non-statutory violation. We conclude, therefore, that as the 

proponent of the motion it was Boston’s burden to produce evidence to show that the 

Wiretap Act was violated and to persuade the court to so rule. Unlike defense motions 

seeking the suppression of evidence obtained by a warrantless search, where, because the 

search is presumptively unconstitutional, and therefore the State bears the burden of 

production and persuasion, see e.g., McCain v. State, 194 Md. App. 252, 278 (2010), the 

defense motion here did not enjoy the benefit of a presumed violation of the Wiretap Act.

Boston did not produce any evidence in this case of what the Detention Center’s 

monitoring of inmate telephone calls consists of—whether calls are listened to as they are 

happening and if so whether all calls are listened to. Nor did he produce any evidence 

that, if any such monitoring takes place, telephone calls may be disconnected depending 

upon what the monitoring reveals. Just as the court in Boyarsky observed, without 

evidence of knowledge, power, and control on the part of the Detention Center, its 

recording of a conversation between an inmate and a person who was not the recipient of 

the inmate’s call but was added to the call by the recipient is not willful. At most it 

would be inadvertent. 

In sum, Boston sought to have his recorded telephone conversation with his 

brother excluded from evidence as having been obtained in violation of the Wiretap Act, 

but did not offer evidence that would support a finding that the Detention Center willfully

intercepted that call. In the absence of proof that the Detention Center violated the 
-19-

Wiretap Act by recording the call in question, the recording was not inadmissible under 

that act.

15

B.

“Our standard of review on the admissibility of evidence depends on whether the 

‘ruling under review was based on a discretionary weighing of relevance to other factors 

or on a pure conclusion of law.’” Perry v. Asphalt & Concrete Services, Inc., 447 Md. 

31, 48 (2016) (quoting Parker v. State, 408 Md. 428, 437 (2009)). We generally review a 

trial court’s decision to admit or exclude evidence under an abuse of discretion standard. 

Id. (quoting Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, 418 Md. 594, 619 (2011)). 

We apply a de novo standard of review, however, when deciding whether evidence is 

relevant because “we determine whether evidence is relevant as a matter of law.” Id. 

(citing State v. Simms, 420 Md. 705, 725 (2011)). To state it differently, “[a]lthough trial 

judges have wide discretion ‘in weighing relevancy in light of unfairness or efficiency 

 

15 In its brief, the State also argues there were facts from which the trial court 

reasonably could have inferred that Boston knew his telephone call with Lee was being 

recorded, but still continued to speak, thereby implicitly consenting to being recorded. 

See State v. Maddox, 69 Md. App. 296, 301 (1986) (“[W]hen one party to a conversation 

expressly or implicitly consents to the recording of that conversation, the recording is 

admissible in evidence against the consenting party[.]”) (emphasis added). As the State 

points out, in parts of the telephone conversation Boston demonstrates an awareness that 

Lee is incarcerated at the Detention Center. The State argues that there was evidence that

Boston himself had been incarcerated there and would have known that calls by inmates 

are recorded. We do not see any such evidence in the record, however, or any facts from 

which an inference could have been drawn that Boston had prior knowledge that all calls 

placed from the Detention Center are recorded. He may well have known that, but the 

record does not furnish such evidence.
-20-

considerations, trial judges do not have discretion to admit irrelevant evidence.’” Id. 

(quoting Simms, 420 Md. at 724). 

Evidence is relevant if it has “any tendency to make the existence of any fact that 

is of consequence to the determination of the action more probable or less probable than 

it would be without the evidence.” Md. Rule 5-401.

The recorded telephone conversation between Boston and Lee was offered by the 

State to show consciousness of guilt on Boston’s part. In Thomas v. State, 372 Md. 342, 

352–53 (2002), the Court of Appeals explained the inferences that must be established for 

consciousness of guilt evidence to be relevant, including the inference that the 

defendant’s consciousness of guilt is of the crime charged. Boston argues that there was 

insufficient evidence to support the inference that the words he spoke during his 

telephone conversation with Lee, about changing his contact information and leaving the 

area, showed consciousness of guilt of the crimes against Matthews. We disagree.

In the telephone call, Boston suggested that he intended to leave the area and 

change his contact information: 

[BOSTON]: (Indiscernible) might be out of town for a little bit.

MR. LEE: I’m going to try to call you again tomorrow. 

[BOSTON]: All right. I’m not sure if she’ll remember but I’m going to 

switch to another — but I’m (indiscernible). 

He then made reference to information connected to the attack on Matthews:

MR. LEE: (Indiscernible) was it — was it — was it — you feeling me? 

Does it come out?

[BOSTON]: No.
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MR. LEE: It ain’t coming how you want it to?

[BOSTON]: No.

MR. LEE: I hope you all right, my n*****.

[BOSTON]: They say Shorty got hit a (indiscernible) times, twice in the 

face, once in the head (indiscernible). 

* * *

MR. LEE: That shit crazy. Oh, and that Kim — Kim called Keonia, talking 

about he saying — saying the name; you feeling me?

[BOSTON]: Yeah. He say — you know. 

(Emphasis added.) Thus, Boston is describing a victim who was shot in the head several 

times and is still alive—a very particular and unusual set of events that matches what 

happened to Matthews. In addition, he and Lee discuss the fact that the victim is “saying 

the name,” i.e., that he is telling the police who attacked him, which Matthews in fact was 

doing. We conclude that the substance of the recorded telephone conversation was 

sufficient to show consciousness of guilt on Boston’s part over the crimes against 

Matthews and therefore was relevant evidence.

“Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice[.]” Md. Rule 5-403. Boston’s 

unfair prejudice argument is essentially the same as his relevance argument. He asserts 

that “[b]ecause there was no evidence connecting the conversation to the charges in this 

case, the [trial] court erred in permitting the state to play the recorded jail call between . . 

. or Mr. Boston and his brother.” We disagree for the reasons just stated. The trial court 
-22-

did not abuse its discretion by deciding that the probative value of the recorded call was 

not substantially outweighed by the danger of unfair prejudice.

II.

The Gun

Officer Shawn Anderson was one of the officers who interviewed Matthews 

following his surgery. He testified that in the interview Matthews identified the weapons 

used against him as a “[b]lack Tech []9, a black .22, and two black []9 millimeter 

handguns.”16 As noted, when the police arrested Boston, they found a black “Colt .45 

caliber handgun” in his sweatpants. Before trial, Boston moved in limine to preclude the 

State from introducing that handgun into evidence. His lawyer argued that the gun was 

not relevant and was “more prejudicial than probative”:

Your Honor, Mr. Boston was riding in a vehicle and the police were 

trying to locate him with respect to this matter. On his person at that time 

was a handgun. Your Honor, that handgun has not been physically linked 

to this particular incident. As a matter of fact, I believe it’s a .45[. T]hat 

was the handgun that was found. The witness described the guns that were 

used that particular evening, a []9 millimeter and I believe a .32 caliber. So 

it was not even described by the alleged victim in this case.

Your Honor, for the Court’s knowledge, Mr. Boston is also charged 

in another matter in Baltimore City and that gun has been linked to an 

incident [in] that particular case. Mr. Boston made a statement to the police 

when he was arrested and detained and brought to the Headquarters 

indicating in his statement that he did buy—he was in possession of the 

gun. He admitted to being in possession of a gun, but he bought the gun 

after this particular event. 

 

16 It is unclear which of these guns Boston used. Presumably, it would have been 

the black Tech 9 or either of the two black 9 millimeter handguns because at trial 

Matthews described Grant as using a “little . . . [.]22.”
-23-

Your Honor, I believe that the introduction of this gun without being 

able to link it even by the victim even though there were multiple guns 

used, but the victim does not even describe this gun. He was very specific 

about the guns that were described in this case and this .45 caliber is not 

one that was described. Introducing this gun is more prejudicial than 

probative in this case . . . the State is trying to force Mr. Boston to get on 

the stand and say no, this gun wasn’t used in this case, but it was used in 

another case. 

The prosecutor opposed the motion, arguing that Matthews would “be absolutely 

clear about the fact that there was more than one gun used in the assault against him.” 

She further argued that the gun was “probative” of whether Boston had attempted to 

shoot Matthews because he was in possession of a gun two days after the attack and “in 

[the] company of a person [Grant] who [wa]s in possession of the gun that was used to 

shoot Steven Matthews.”

Ultimately, the court denied the motion:

I think it’s relevant given the fact that the victim identified that there was 

more than one weapon. There were two guns and that this gun was found 

at the same time the arrest of the Co-defendant who had the gun that was 

linked to this crime. I think yes, it is predicial [sic], but I think it is more 

probative than prejudicial. So I’ll deny the motion.

Matthews testified that the gun Boston attempted to shoot him with was “a []9 or a 

[.]45 chrome whatever it was.” Over Boston’s objection, the State moved the .45 caliber 

handgun into evidence. 

On appeal, Boston contends the trial court erred by admitting the .45 caliber 

handgun into evidence and permitting testimony about it. He repeats the arguments he 

made below, namely that the gun “was irrelevant and highly prejudicial.” He maintains 

that the gun was irrelevant evidence because “the State offered nothing more than sheer 
-24-

speculation that the gun that police found on Mr. Boston during his arrest was a gun used 

during the home invasion and attack on Mr. Matthews.” He argues that the gun and the 

evidence about it was substantially prejudicial because the jury could conclude that 

Boston “was simply a man of questionable character[,]” especially because he “could not 

be expected to take the stand and explain why he was arrested with the gun, because an 

admission that the gun related to other, uncharged crimes, would still prejudice his 

defense.” 

“‘[P]hysical evidence need not be positively connected with the accused or the 

crime to be admissible; it is admissible where there is a reasonable probability of its 

connection with the accused or the crime[.]’” Aiken v. State, 101 Md. App. 557, 573 

(1994) (quoting Brooks v. State, 24 Md. App. 334, 344 (1975)). Thus, the .45 caliber 

handgun was relevant evidence if there was a reasonable probability that it was connected 

to the crimes that Boston was charged with committing.

Two cases are pertinent. In Aiken, the defendant robbed two victims at gunpoint

and then raped one of them. The first victim told the police the gun the defendant used 

was a small, blue handgun with a round chamber. The second victim told the police the 

gun was a small, black revolver. A month and a half after the crimes, the police arrested 

the defendant and recovered a black .38 caliber revolver in the immediate vicinity of his 

arrest.

At trial, the first victim testified that the gun was a black handgun. When she was 

shown the .38 caliber revolver, she said it was similar to the gun used against her, but 

could not definitively say it was the same gun. The second victim also testified that the 
-25-

guns were similar. The defense moved to exclude the .38 caliber revolver from evidence. 

The trial court denied the motion. On appeal, this Court affirmed. We held that the “gun 

was sufficiently connected to the crimes” charged against the defendant to make its 

admission proper. Id. at 574.

Likewise, in Grymes v. State, 202 Md. App. 70 (2011), we ruled that a trial court 

properly admitted a gun into evidence. There, the defendant used a gun in robbing the 

victim. The day of the robbery, a person familiar with the defendant told the police that 

she had seen him with a gun that had a long black barrel and brown handle, and that the 

gun could have been in the laundry room of the apartment building where the defendant 

was staying. The police searched the laundry room and found the gun. Also on the same 

day as the robbery, the victim told the police the gun had had a long barrel, was black 

with a brown handle, and possibly was a .38 caliber. At trial, however, the victim 

testified that the gun was silver with a brown handle. In upholding the trial court’s

decision to admit the gun into evidence, we stated that the evidence “was sufficient to 

create a ‘reasonable probability’ that the gun was connected to the” defendant, and that it 

was within the province of the jury to determine the weight to give that evidence. Id. at 

104. 

We return to the instant case. Matthews testified at trial that Boston attempted to 

shoot him with “a []9 or a [.]45 chrome whatever it was.” The .45 caliber handgun was 

recovered from Boston 36 hours after the attack, from the same vehicle and at the same 

time that the .32 caliber handgun Grant used to shoot Matthews was recovered. The fact 

that Matthews had provided an earlier inconsistent description of the precise caliber and 
-26-

color of the handgun did not make the .45 caliber handgun irrelevant to the case; the 

inconsistent descriptions went to the weight of the evidence and were fodder for crossexamination. 

As noted, under Rule 5-403, relevant evidence may be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice. A trial court 

exercises its discretion when it balances the “probative value” of the evidence against its 

potentially unfair prejudicial effect. Perry, 447 Md. at 48.

Boston argues that the .45 caliber handgun was prejudicial evidence in that it 

could have led the jury to think he was of questionable character. The test is not whether 

prejudice exists, however. It is whether there is unfair prejudice that substantially 

outweighs the probative value of the evidence. The gun, which was partly described by 

Matthews at trial, was found on Boston not long after Matthews was attacked and was in 

the vicinity of other guns used against Matthews, was highly probative of Boston’s 

involvement in the crimes against Matthews.

Boston also argues that the gun was unfairly prejudicial because he had used it in 

another crime, but he could not explain that to the jury without harming his defense. He

relies on Thompson v. State, 393 Md. 291 (2006). There, shortly after an attempted 

murder, the defendant, who was riding his bike, was followed by a police officer. He 

pedaled away from the officer, but was caught minutes later with 86 vials of crack 

cocaine. At the defendant’s trial for attempted murder, there was no evidence elicited 

about the crack cocaine, and the defendant did not testify, thus offering the jury no 

explanation for why he attempted to flee from the officer. 
-27-

The trial court instructed the jury that flight after the commission of a crime may 

be considered as evidence of guilt if the flight demonstrated a consciousness of guilt. 

Ultimately, the Court of Appeals held that this jury instruction was given in error because 

it was misleading. The jury did not know that the defendant had been in possession of a 

significant amount of crack cocaine and, thus, was unaware of a reasonable justification 

for his flight that had nothing to do with the attempted murder. Nor could the jury be told 

of that fact without prejudicing the defendant. Accordingly, the “circumstances of the 

case . . . impaired the confidence with which the inference that [the defendant] fled from 

the police due to a consciousness of guilt with respect to the [attempted murder charges] 

could be drawn[.] Id. at 315.”

Thompson is easily distinguishable. Because the defendant there had crack 

cocaine in his possession, it was clear that there was a reasonable justification for his 

flight from the police unconnected with the attempted murder. Here, Boston merely

proffered that the gun was used in another criminal matter. There was no other evidence 

to support that and the trial court was not obligated to believe that proffer. The admission 

of the gun in evidence was not misleading in the way the flight instruction in Thompson

had been. From the evidence presented, there still was a reasonable probability that the 

gun was connected to the crimes for which Boston was charged. The trial court did not 

abuse its discretion in ruling that the probative value of the .45 caliber gun was not 

substantially outweighed by any potential unfair prejudice. 
-28-

III.

The Jacket 

In the early morning of November 30, 2014, only a few hours after the attack on 

Matthews, detectives with the Baltimore County Police Department executed a search 

warrant at Matthews’s house. During the search, they discovered a black Calvin Klein 

jacket draped over a couch. There were three bags of marijuana in the pocket of the 

jacket. The detectives confiscated the marijuana but left the jacket where it was because 

they thought it belonged to Matthews and “did not know if it was actually of evidentiary 

value.” When the search was finished, the detectives locked Matthews’s house. 

On December 3, 2014, Matthews, who was still in the hospital, asked a family 

member to bring him a jacket from his house so he would have one to wear when he left 

the hospital. The family member returned with the black Calvin Klein jacket. Matthews 

realized the jacket did not belong to him, so he called the detectives. They took the 

jacket and submitted it for DNA analysis. 

Christina Tran, a forensic biologist for the Baltimore County Police Department, 

examined the jacket and detected amylase and acid phosphatase on the left cuff. 

Amylase is an enzyme found in high quantities of saliva and acid phosphatase is an 

enzyme found in high quantities of semen. Tran took a cutting from the left cuff of the 

jacket and sent the cutting to Bode Technology for DNA testing. The test results showed 

that the jacket contained a “DNA profile consistent with a mixture of two individuals, 

including a major male contributor” whose DNA profile matched Boston’s. 
-29-

At trial, the State sought to admit the jacket into evidence. Detective Eli Visnick 

testified that the jacket appeared to be the same one he had seen at Matthews’s house

during the search on November 30, 2014, and also the same one he had obtained from 

Matthews at the hospital on December 3, 2014, “minus the markings from . . . [the] 

Crime Lab and Forensic Unit.” Matthews testified that pictures of the jacket taken at his 

house after the crimes showed the same jacket that his family member brought him from 

his house on December 3. Boston objected to the jacket’s admission, arguing that the 

State did not establish a sufficient chain of custody to account for what could have 

happened to the jacket from November 30 to December 3, 2014. 

The trial court initially reserved ruling, but later overruled Boston’s objection:

With respect to the . . . jacket that I reserved on, the testimony with the 

condition of the jacket remains the . . . same as when this detective first 

took possession of the jacket. There’s no evidence of any tampering since 

that time so the objection is overruled and Exhibit 52 [the jacket] is 

admitted.

On appeal, Boston contends the trial court abused its discretion by admitting the 

jacket because the State did not sufficiently establish its chain of custody. Specifically,

he asserts that the “[p]olice did not take the jacket into evidence until four days after the 

home invasion. None of the State’s witnesses could say with certainty who had access to 

the jacket or whether the jacket underwent any transformations before Mr. Matthews’s

relative brought it to the hospital.” The State retorts that the trial court acted within its 

discretion by admitting the jacket because “the State . . . sufficiently demonstrated that 

there was not a reasonable probability that the jacket had been altered in the three days 

between November 30 . . . and December 3.” We agree with the State.
-30-

A proper chain of custody is established when “there is a ‘reasonable probability 

that no tampering occurred.’” Cooper v. State, 434 Md. 209, 227 (2013) (quoting 

Breeding v. State, 220 Md. 193, 199 (1959)). The purpose of establishing chain of 

custody is to “‘preclude a likelihood that the . . . condition [of the piece of evidence] was 

changed.’” Wagner v. State, 160 Md. App. 531, 552 (2005) (quoting Best v. State, 79 

Md. App. 241, 250 (1989)). Missing links from the chain of custody do not, as a matter 

of law, mandate exclusion of the evidence; rather, “gaps or weaknesses in the chain of 

custody generally go to the weight of the evidence[.]” Easter v. State, 223 Md. App. 65,

75 (2015); see also Lynn McClain, Maryland Evidence, State & Federal, § 901:2 at 851–

52 (3d ed. 2013) (“The proponent’s chain of custody evidence need not preclude all 

possibilities of tampering or mistake; it need only show a reasonable probability that no 

tampering or mix-up has occurred.”). 

To be sure, the State did not definitively rule out the possibility of tampering. It is 

possible that someone with access to Boston’s saliva and semen broke into Matthews’s 

locked house between November 30 and December 3, 2014, and planted those bodily 

fluids on the black Calvin Klein jacket that did not belong to Matthews. Such a scenario 

is highly unlikely, however, and, the mere possibility of tampering does not mandate 

exclusion. See Wagner, 160 Md. App. at 552–53 (glove was admissible even though it 

was discovered outside by a neighbor who placed it on her back porch and gave it to 

police two days after the murder). 

Detective Nacke testified that, other than the markings from the Crime Lab and 

Forensic Unit, the jacket was in the same or substantially the same condition as it was 
-31-

when he saw it at Matthews’s house on November 30, 2014, and as it was when he 

collected it from Matthews at the hospital on December 3, 2014. He also testified that 

Matthews’s house was locked after the November 30 police search. Finally, Matthews 

testified that the black Calvin Klein jacket that was brought to him in the hospital was the 

“[s]ame exact jacket” from the pictures of the crime scene. Accordingly, the trial court 

acted within its discretion by admitting the jacket. 

JUDGMENTS OF THE CIRCUIT 

COURT FOR BALTIMORE 

COUNTY AFFIRMED. COSTS TO 

BE PAID BY THE APPELLANT.