Facebook Admissibility: Photos Authenticated by Witness Familiar with Page Owner’s Appearance — Posts by Fact They Emanated from Owner’s User Name and Were Obtained via Search Warrant for His Account

People v. Johnson, 2016 Mich. App. LEXIS 1256 (Mich. Ct. App. June 28, 2016):

Defendant, Timothy Noel Johnson, was convicted by a jury of first-degree premeditated murder, MCL 750.316(1)(a), possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b, and felon in possession of a firearm, MCL 750.224f, and sentenced as a second-offense habitual offender, MCL 769.10, to concurrent prison terms of life without parole for the murder conviction and 32 months to five years for the felon in possession conviction and a consecutive two-year prison term for the felony firearm conviction. He appeals as of right his December 12, 2014 judgment of sentence. We affirm.

Defendant's convictions arise out of the shooting death of Dakarie Mickinnie. Late in the evening on June 20, 2014, Kalyn Ware was stopped at a stoplight when she heard approximately five gun shots. After hearing the shots, she observed a man run by her vehicle and fall. A second man chased the man who fell and shot him approximately six more times. Ware described the shooter as being "[v]ery" close and said that "the whole time [she] was looking him in his face." Ware identified defendant as the shooter. Defendant denied having ever "met" [*2]  the victim, but he did admit being "mad as hell" after "going down through [the victim's] Twitter account" and "seeing videos" "of [defendant's] son." Defendant additionally admitted that he threatened the victim, saying that the two spoke "[a]bout fighting each other, and met up with each other. Gun violence." Nevertheless, he denied having killed Mickinnie. After being arrested and charged, he was eventually convicted and sentenced as described above. This appeal followed.

I. ISSUES RAISED IN DEFENDANT'S BRIEF ON APPEAL

***

B. ADMISSION OF FACEBOOK EVIDENCE

Next, defendant argues that the trial court erred by admitting Facebook photographs because the prosecution did not lay sufficient foundation for the evidence's admission and because its probative value was substantially outweighed by the danger of unfair prejudice. We disagree.

"To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal." People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Defendant objected at trial to the admission of the Facebook records on the basis that a statement from the keeper of records was required. Therefore, defendant's [*6]  claim that the records lacked a proper foundation is preserved. Id. Defendant did not argue, however, that the photographs were unfairly prejudicial until after the trial court's final instructions. Further, he did not raise the same argument that he asserts on appeal--that there was no evidence that the guns in the photographs were the same guns used in the shooting. Therefore, defendant's claim that the photographs were unfairly prejudicial is unpreserved. Id.

This Court reviews for an abuse of discretion a trial court's decision to admit evidence. People v Duenaz, 306 Mich App 85, 98; 854 NW2d 531 (2014). "The trial court's decision is an abuse of discretion when the result is outside the range of principled outcomes." Id. This Court reviews "de novo preliminary questions of law regarding whether a statute or evidentiary rule applies." Id. "Unpreserved claims of evidentiary error are reviewed for plain error affecting the defendant's substantial rights." People v Benton, 294 Mich App 191, 202; 817 NW2d 599 (2011).

1. FOUNDATION

At issue here is the trial court's admission of Facebook photographs of defendant with guns and ammunition.1 MRE 901(a) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that [*7]  the matter in question is what its proponent claims." MRE 901(b)(1) provides that the testimony of a witness with knowledge "that a matter is what it is claimed to be" is an example of proper authentication or identification. "A proper foundation for the admission of photographs is made if someone who is familiar from personal observation of the scene or person photographed testifies that the photograph is an accurate representation of the scene or person." In re Robinson, 180 Mich App 454, 460; 447 NW2d 765 (1989); see also MRE 901. In this case, Detroit Police Officer Jamaire McEntire, who had interviewed defendant and was thus familiar with his appearance, testified that the Facebook photographs were of defendant. Although Officer McEntire did not expressly state that the photographs were an "accurate representation" of defendant, his testimony that they were of defendant was sufficient to establish a proper foundation for the admission of the photographs.

1   Defendant also refers to "threatening remarks aimed at the decedent," but the Facebook comment that was admitted was directed toward Gunn, not the decedent. To the extent defendant claims there was no foundation for the admission of the Facebook comment, the prosecution presented testimony that defendant's [*8]  Facebook username was "Cashout Team Tim B-SHXT'N," that the comment came from defendant's username, and that the comment was obtained pursuant to the search warrant for defendant's Facebook account. In any event, even assuming this comment was improperly admitted, its admission was harmless for similar reasons as those articulated with respect to the photographs.

Defendant cites MRE 803(6), the business record exception to the hearsay rule, which requires "the testimony of the custodian or other qualified witness." However, whether the evidence satisfies an exception to the rule prohibiting hearsay is a separate inquiry from whether there was a proper foundation for the admission of the evidence. Although the prosecutor did refer to the Facebook evidence as "business record[s]," there is no indication that the evidence was admitted under MRE 803(6). In fact, defense counsel stated below that if the documents were otherwise properly admitted, he had no objection based on hearsay. Defendant similarly cites MRE 902(11), which requires "a written declaration under oath by its custodian or other qualified person" for the admission of a record of regularly conducted business activity that would be admissible under MRE 803(6). Again, however, [*9]  there is no indication that the Facebook photographs were admitted as business records under MRE 803(b). Therefore, this certification was not required.

Defendant also argues that the Facebook photographs were inadmissible hearsay because there was nothing to establish that the Facebook page or postings actually belonged to defendant. Defendant again conflates hearsay and foundation. Defendant's statement of the question presented on appeal does not mention hearsay, nor was a hearsay argument advanced below. As discussed above, there was a proper foundation for the admission of the Facebook evidence, which was obtained pursuant to a search warrant for defendant's Facebook account, and defendant's claim that there was no evidence that it was actually his page and postings went to the weight, not the admissibility, of the evidence.

Furthermore, even if the Facebook photographs were improperly admitted, any error was harmless in light of Ware's identification of defendant as the shooter, the .40 caliber magazine and .40 caliber rounds found at defendant's homes, the black and red fisherman's hat found at defendant's home, the cell phone tower records placing defendant's cell phone in the area of [*10]  the crime near the time of shooting, and defendant's threats against the victim. "A preserved error in the admission of evidence does not warrant reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative." People v Roscoe, 303 Mich App 633, 639; 846 NW2d 402 (2014) (citation and internal quotation marks omitted).

2. UNFAIR PREJUDICE

Defendant argues that the Facebook photographs were unfairly prejudicial because there was no evidence proving that the guns in the photographs were the guns used in this case or when the photographs were taken. MRE 403 provides as follows: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." "'Relevant evidence' means evidence having 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." MRE 401.

   Assessing probative value against prejudicial effect requires a balancing of several [*11]  factors, including the time required to present the evidence and the possibility of delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects. Unfair prejudice may exist where there is a danger that the evidence will be given undue or preemptive weight by the jury or where it would be inequitable to allow use of the evidence. [People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008) (citations omitted).]

"Evidence of a defendant's possession of a weapon of the kind used in the offense with which he is charged is routinely determined by courts to be direct, relevant evidence of his commission of that offense." People v Hall, 433 Mich 573, 580-581; 447 NW2d 580 (1989) (opinion by BOYLE, J.). Here, the photographs established defendant's possession of a handgun similar to one used in the crime, and made it more probable that he was the shooter.2 This is especially true considering the fact that defendant's identity as the shooter was at issue in this case. Thus, the photographs had the tendency to make the existence of any fact [*12]  that is of consequence to the determination of the action more probable or less probable. Additionally, the testimony presented clearly reflected that the guns in the photographs were not necessarily those found at the scene, and that is precisely what defense counsel argued to the jury.

2   Although neither Gunn nor Ware described the gun used in the shooting as a handgun, in discussing the .40 caliber Smith & Wesson casings, Detective Sergeant Molnar agreed that .40 caliber handguns were at issue.

Furthermore, even if we assume that the admission of the photographs was unfairly prejudicial, defendant fails to establish that their admission affected his substantial rights. As discussed above, given Ware's identification, the .40 caliber magazine and .40 caliber rounds found at defendant's home, the black and red fisherman's hat found at defendant's home, the cell phone tower records placing defendant's cell phone in the area of the crime near the time of shooting, and defendant's threats against the victim, we cannot conclude that the admission of these photographs affected the outcome of the trial.

 

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