Email/Texts — Texts Authenticated by Fact They Were Downloaded from Cell on Defendant’s Person (Even Though Registered to & Sometimes Use by Another), Refer to Him by First Name and Concern Drugs of Sort Possessed by Him — Texts Then = Admissions

Glispie v. State, 2015 Ga. App. LEXIS 748 (Ga. Ct. App. Nov. 20, 2015):

In connection with a traffic stop, Jaylend Glispie was convicted of violating the Georgia Controlled Substances Act for possession with intent to distribute cocaine and 3, 4-methylenedioxymethcathinone (methylone) (2 counts),1 obstruction of a law enforcement officer,2 fleeing and attempting to elude,3 failure to stop at a stop sign,4 and driving an unsafe and improperly equipped vehicle.5 He appeals from the denial of his motion for new trial, arguing that the trial court erred by denying his motion to exclude evidence of text messages purportedly extracted from a cell phone he possessed, denying his motion for a mistrial after a witness gave inadmissible testimony in response to a question propounded by Glispie's trial counsel on cross-examination, and denying his motion to suppress drugs taken from his person during a search. Glispie also contends that the evidence presented at trial was insufficient to support his convictions. For the reasons that follow, we affirm Glispie's convictions for violating the Georgia Controlled Substances Act, obstruction of a law enforcement officer, fleeing and attempting to elude, and driving an unsafe and improperly equipped [*2]  vehicle. We reverse his conviction for failure to stop at a stop sign because there was no evidence of venue with regard to that charge.

 

1   OCGA § 16-13-30 (b).

 

2   OCGA § 16-10-24 (b).

3   OCGA § 40-6-395 (a).

4   OCGA §§ 40-6-72 (b); 40-6-1 (a).

5   OCGA § 40-8-7 (a).

The evidence shows that on February 7, 2013, at about 2:00 a.m., Nathan Watts, a Rockdale County sheriff's deputy, was on patrol in a marked patrol cruiser on Flat Shoals Road when he observed a vehicle without a working headlight in the left turning lane of Salem Road. As Watts continued to travel on Flat Shoals Road, he crossed Salem Road and peered into the vehicle. Watts did not observe any of the driver's facial features, but he did observe that the driver, the sole occupant of the vehicle, was a black male wearing a "bright red[-]like sweater shirt." Watts turned his patrol cruiser around and followed the vehicle, which had turned onto Flat Shoals Road in the opposite direction in which Watts had been traveling.

Watts got behind the vehicle and activated his cruiser's emergency lights and siren to initiate a stop of the vehicle, which then turned onto a side street and stopped. Watts testified that he "aired [his] situation over the radio," reporting his location and giving "a short description of the vehicle," including the tag number [*3]  and color and body type of the vehicle. Watts then exited his patrol cruiser. As Watts "started moving [toward the vehicle], the vehicle started moving too," and was driven away "in a hurry" before Watts could make contact with the driver. Watts returned to his cruiser, pursued the vehicle, and announced his pursuit over the radio, giving a description of the vehicle and the direction in which it was being driven. When the vehicle proceeded through an intersection without stopping at the stop sign, Watts stopped his cruiser, deactivated its emergency lights, and in the interest of safety, ended his pursuit.

On his computer, Watts obtained the address associated with the driver's license of the registered owner of the vehicle. The address was in Rockdale County, not far from Watts's location, and Watts drove to the residence; approximately seven minutes passed from the time he stopped pursuing the vehicle to the time he arrived at the residence. Deputy Curtis Thompson, who had heard Watts's broadcast, arrived at the residence before Watts. Thompson exited his cruiser and started walking toward the home. The vehicle that Watts had pursued was parked in the driveway, and two black men [*4]  were in front of the residence. One man wore a white t-shirt and flannel plaid-looking pajama pants. The other man, who wore jeans and a red and black shirt, ducked into some bushes as Thompson's cruiser approached. Thompson testified that as he walked past the vehicle, he could "smell the brakes still burning on the car from it having been in the chase, applying the brakes."

Thompson ordered both men to approach him. The man wearing the white tshirt complied, but the man wearing the red and black shirt, later identified as Glispie, did not. It appeared that Glispie was "about to run," but Watts approached from behind Thompson at "a different angle in case something happened," and Thompson was able to handcuff Glispie. As Thompson "reached up to start to pat him down[,] . . . [Glispie] tried to take off." Thompson testified that Glispie "stood on his left foot. Picked his right leg up and tried to kick my knee cap out." Thompson stepped to the side, and Glispie's "heel grazed from [Thompson's] knee cap all the way down the side of [Thompson's] leg to [Thompson's] ankle," leaving a red mark. Glispie then "went hopping across the yard with [Thompson] hanging on to the handcuffs." Thompson [*5]  pulled the handcuffs, "[l]eg swept" Glispie, knocking his feet out from underneath him, and sat down on top of Glispie. Watts positively identified the shirt that Glispie wore in the photograph as the shirt he had seen the driver of the pursued vehicle wearing.

Thompson searched Glispie's pockets. Located therein was one plastic bag containing fourteen rocks of suspected crack cocaine; another plastic bag contained five clear capsules, each filled with a white powder; a "couple of lighters"; two cell phones; some cash; and a razor or box cutter. The rocks had a total net weight of 2.07 grams and later tested positive for cocaine. The capsules had a total weight of less than one gram and later tested positive for 3, 4-methylenedioxymethcathinone, commonly known as methylone or "Molly."

At trial, Thompson opined that the amount of drugs recovered and the manner in which the drugs were packaged were consistent with an intent to sell or distribute, rather than for personal use.6 A third law enforcement officer, Sergeant Jason Welch, testified that text messages were extracted from one of the cell phones found on Glispie's person, and the texts indicated that Glispie used the cell phone to sell [*6]  drugs.7 Welch testified that part of one text message appearing on January 25, 2013, read, "Kristy, this Jaylend." A text message sent from the phone on February 1, 2013, read, "what is good, babe. This is the dude. I got your number. Everybody calls me Sane or Insane but my real name is Jaylend." Welch was asked whether there were conversations he had seen (in the text messages) which were "particularized toward the distribution or sale of either Mollies or cocaine," and he testified as follows.

   A: Absolutely. Molly is mentioned numerous times within these pages. I just flip through at random.

Q:

   Can you give an example of one of those times?

A: Yes. For instance, you mentioned cocaine. Just flip through a random page. I see this right here. I got some concrete you might like. Hit me when you are ready. That's text number 2433 on January 26th, 2013, at 21:30. That text message was sent to this phone. Basically, someone trying to order up and another one on text message 2479. This was sent to the phone on January 27th, 2013, at 23:59 hours. It states you say a G. which is slang for a gram was 80. And then again from the same number, I need a G. of Molly. What's the move. Basically, I need [*7]  a gram of Molly and what are you going to do for me.

Q: Are there any other ones that you found that kind of caught your attention primarily?

A: This individual time, they are talking about a dime. Another one from -- now the cell phone data that we use to pull this information, we pull contacts too. Some of the numbers are just numbers, random customers ordering up to the phone but other people are listed as contacts. This was sent from an individual they have as Little Rod. It's 2599 sent to the phone and it plainly reads, you got Mollies? Asking if the individual has Mollies.

Welch also testified as to other text messages "about the drug trade." On cross-examination, Welch testified that based on his knowledge, training, and experience, "[anyone in possession of narcotics, especially in a manner of intent to sell and has a cell phone in his possession typically uses that cell phone to conduct trades." When asked whether he had any information prior to the issuance of the search warrant that the particular cell phone he sought to search was used in arranging the purchase or sale of drugs, Welch replied, "No. I was not on the scene."

6   Thompson testified regarding his 13 years of experience [*8]  in law enforcement, as well as his training and experience in narcotics investigation. The trial court ruled that he was "qualified to talk about the way [he] [had] encountered drugs being packaged before, and give [his] opinion as to whether or not they [were] held with intent to distribute or for possession."

7   Glispie filed a motion in limine to exclude the text messages, but the trial court denied the motion and permitted Welch to testify regarding the messages; the printout of the texts was not sent out with the jury.

Glispie was convicted on all counts. The trial court denied his motion for new trial, and this appeal followed.

1. Glispie contends that the trial court erred by denying his motion in limine8 to exclude evidence of text messages extracted from one of the cell phones found on him at the scene and by admitting the evidence over his objections. This enumeration presents no basis for reversal.

8   See State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543) (1982) ("A motion in limine is a pretrial motion which may be used two ways: 1) The movant seeks, not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can [*9]  be determined during the course of the trial outside the presence of the jury. 2) The movant seeks a ruling on the admissibility of evidence prior to the trial. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court's determination of admissibility is similar to a preliminary ruling on evidence at a pretrial conference[,] and it controls the subsequent course of action, unless modified at trial to prevent manifest injustice.") (citations, punctuation, footnote, and emphasis omitted).

***

(b) Objections. Glispie contends that the trial court [*14]  erred by admitting the text messages taken from his cell phone over various objections he made at trial.17 "On appeal, the admission of evidence is reviewed for an abuse of discretion."18 "A proper application of the abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach, and that there will often be occasions in which we will affirm the evidentiary ruling of a trial court even though we would have gone the other way had it been our call."19

17   This case was tried on October 21, 2013. Thus, Georgia's new Evidence Code, which applies to any motion made or trial commenced after January 1, 2013, applies to this case. See Ga. L. 2011, pp. 99, 214 §101.

18   See Burgess v. State, 292 Ga. 821, 823 (4) (742 SE2d 464) ( 2013)

19   (Punctuation omitted.) Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014), quoting United States v. Frazier, 387 F.3d 1244, 1259 (II) (11th Cir. 2004).

(i) First, Glispie contends that the data taken from his cell phone was not properly authenticated. We disagree.

Pursuant to OCGA § 24-9-901 (a), "[t]he requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

   There are no special rules under Georgia law governing the authentication of electronic documents or communications. [*15]  Electronic records and e-mails are to be treated the same as ordinary writings for purposes of authentication and admission. As with all authentication issues, the trial court should admit the evidence if a reasonable jury could find that the evidence is what it is claimed to be. Every form of electronic communication can be "spoofed," "hacked," or "forged." But this does not and can not mean that courts should reject any and all such communications. Indeed, the vast majority of these communications are just as they appear to be -- quite authentic. The goal is to supply sufficient, nonhearsay evidence as to the identity of the source such that a reasonable factfinder could conclude that the evidence is what it is claimed to be.20

As the Eleventh Circuit has held,

   [t]o authenticate a document, Rule 901 only requires a proponent to present sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be. After meeting the prima facie burden, the evidence may be admitted, and the ultimate question of authenticity is then decided by the jury. . . . Evidence may be authenticated through the testimony of a witness with knowledge.21

20   (Punctuation omitted.) Koules [*16]  v. SP5 Atlantic Retail Ventures, LLC, 330 Ga. App. 282, 287, n. 7 (767 SE2d 40) (2014), quoting Paul S. Milich, Ga. Rules of Evidence, § 7:6 (2014-2015 ed.). See also Moore v. State, 295 Ga. 709, 713 (3) (763 SE2d 670) (2014) ("'Documents from electronic sources . . . are subject to the same rules of authentication as other more traditional documentary evidence and may be authenticated through circumstantial evidence.'").

21   (Citation and punctuation omitted.) United States v. Lebowitz, 676 F.3d 1000, 1009 (III) (11th Cir. 2012).

Here, Welch testified that he observed another officer recover and download the text messages taken from the cell phone found on Glispie, which messages were then printed out. According to Welch's testimony, Glispie refers to himself in the text messages by his first name at least twice. This evidence establishes a prima case that "the evidence was what it purported to be -- text messages between [Glispie and other individuals]."22 And although Welch testified that the cell phone was actually registered to another individual who had access to and had been using the cell phone, the State presented sufficient evidence to support a finding that the text messages were to and from Glispie. Accordingly, the trial court did not abuse its discretion by overruling Glispie's authentication objection.

22   United States v. Sterlin, 466 Fed. Appx. 792, 797 (III) (B) (11 Cir. 2012). See also Burgess, 292 Ga. at 823 (4) (holding that a printout from [*17]  a screen shot of the defendant's profile page from a social media website was properly authenticated by the officer who printed the document and testified that the defendant used the nickname displayed on the profile page and that the page contained photographs of the defendant); United States v. Carr, 607 Fed. Appx. 869, 876 (III) (A) (11th Cir. 2015) (text messages sent by defendant were properly authenticated by the records custodian from the cell phone service provider); United States v. Mebrtatu, 543 Fed.Appx. 137, 140-141 (II) (B) (3d Cir. 2013) (holding that text messages taken from the defendant's cell phone were properly authenticated based on the arresting officer's testimony that the phone was found on the defendant's person and based on evidence that some of the text message exchanges referred to the defendant and her boyfriend by name).

(ii) Next, Glispie argues that the text messages recovered from the phone should have been excluded as inadmissible hearsay. Again, we find no basis for reversal.

In Georgia, hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."23 Pretermitting whether the text messages constituted hearsay, they were admissible as an admission [*18]  by a party-opponent.

23   OCGA § 24-8-801 (c).

OCGA § 24-801 (2) (A) provides that "[a]dmissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is . . . [t]he party's own statement." "[A] defendant's incriminating statement is admissible when it constitutes an admission against the defendant's penal interest because a defendant's declaration against penal interest is the admission of a party-opponent."24

24   (Punctuation omitted; emphasis in original.) Bryant v. State, 288 Ga. 876, 888 (9) (a) (708 SE2d 362) (2011), quoting Teal v. State, 282 Ga. 319, 327 (3) (647 SE2d 15) (2007).

Here, as we concluded in Division 1 (b) (i), the trial court did not abuse its discretion by concluding that the text message evidence was authenticated. And because the messages implicated Glispie and constituted statements against penal interest, they were admissible as party admissions.25

25   See United States v. Siddiqui, 235 F.3d 1318, 1323 (II) (B) (11th Cir. 2000) (affirming admission of emails sent by the defendant as admissions of a party pursuant to Fed. R. Evid. 801 (d) (2) (A)); United States v. Moore, 611 Fed. Appx. 572, 577 (I) (C) (1) (11th Cir. 2015) ("any out-of-court statements made by [the defendant] himself in the intercepted phone calls and text messages constitute prior party admissions").

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