Texts Authenticated by Fact They Reflect They Came from Sender & Bore Defendant’s Nickname & One Came with His Photo, Evidence Phone Number Was Defendant’s and by the Contents of the Messages
Reyes-Mendoza v. State, 2015 Md. App. LEXIS 388 (Ct. Spec. App. Sept. 29, 2015):
On January 31, 2014, a jury in the Circuit Court for Prince George's County convicted Marvin Reyes-Mendoza of attempted first degree murder and related crimes in connection with his participation in a drive-by shooting. The court sentenced appellant to life, all but 45 years suspended, on the conviction for attempted murder, and it imposed a five-year consecutive sentence on the conviction for use of a handgun in the commission of a crime of violence.1
1 The court's sentence, in total, was as follows: life, all but 45 years suspended, for attempted murder; first degree assault merged; 10 years concurrent for participation in a criminal gang; 45 years concurrent for conspiracy to commit murder; conspiracy to commit first degree assault merged; 5 years consecutive for use of a handgun in the commission of a crime of violence; 3 years concurrent for unlawfully wearing, carrying or transporting a handgun; 1 year concurrent for fleeing and eluding in a vehicle; and 5 years concurrent for intimidating a witness. Appellant was found not guilty of possession of a firearm by a person under 21.
On appeal, appellant raises five [*2] issues for our review, which we have reworded and rephrased slightly, as follows:
1. Did the circuit court abuse its discretion in admitting text messages found on a co-conspirator's cell phone?
FACTUAL AND PROCEDURAL BACKGROUND
In September 2011, Wilmer Argueta ("Chango"), a member of the Mara Salvatrucha ("MS-13") gang, assaulted Gustavo Marquez ("Monster"), a member of the Adelphi Park Crew gang ("ADP") and the victim in this case.2 Mr. Marquez provided the Prince George's County Police a statement [*3] and identified Mr. Argueta as the assailant. Mr. Argueta subsequently was arrested and charged with assault.
2 According to testimony at trial, ADP is part of the Bloods gang, which is a rival of MS-13.
On November 14, 2011, Mr. Marquez informed Detective William Lee, a member of the Prince George's Police Department's Gang Unit, that people were driving a distinctive 4Runner SUV through his neighborhood and threatening him. Detective Lee assigned several officers to watch Mr. Marquez's home.
Efrain Ramirez ("Potter"), another MS-13 gang member, testified that Mr. Carlos Beltran-Flores ("Joker") wanted to kill Mr. Marquez because he was a member of the rival ADP gang and because he was cooperating with police regarding the September assault. Mr. Ramirez noted that Mr. Beltran-Flores had driven by Mr. Marquez's house a couple times looking for him.
On November 15, 2011, Mr. Ramirez, appellant, and Mr. Beltran-Flores agreed to commit a robbery. The three collected a revolver from Mr. Ramirez's apartment, purchased a black mask from a local mall, and drove to Adelphi, Maryland, to find a victim. Appellant was driving through a neighborhood when he spotted Mr. Marquez in front of his home. Appellant [*4] asked Mr. Beltran-Flores what he "wanted to do." Mr. Beltran-Flores suggested they do a "drive-by," and he moved to the back seat with the revolver. Appellant agreed, put on the black mask they had purchased earlier, circled around the block, and turned onto Mr. Marquez's street. Mr. Beltran-Flores instructed appellant to drive slowly. Mr. Beltran-Flores then rolled down the rear passenger side window and fired several shots at Mr. Marquez, hitting him once in the chest.3
3 In exchange for a reduced sentence of 10-25 years of incarceration, Mr. Ramirez entered into a plea agreement with the State. The agreement required that Mr. Ramirez plead guilty in two criminal cases pending against him (one related to this case) and testify against appellant.
The officers surveilling Mr. Marquez's home quickly pulled up behind appellant's vehicle and activated their lights. Mr. Ramirez testified that appellant drove away, attempting to avoid the police by driving at a high rate of speed. The officers pursued the vehicle, and Mr. Beltran-Flores threw the revolver into the rear of the SUV. Mr. Ramirez objected, concerned that the officers would inevitably catch them and discover the fingerprints on the [*5] gun. At that point, Mr. Beltran-Flores retrieved the gun from the rear of the vehicle and threw it out the window. Appellant stopped the vehicle and the three men in the vehicle were arrested.
During a post-arrest search, officers seized a cell phone from Mr. Beltran-Flores. Detective Steven Huie obtained a search warrant, and the data recovered from Mr. Beltran-Flores' cell phone included a number of text messages addressed to and from a contact named "Chino."4 Police also recovered a black mask from the SUV that tested positive for appellant's DNA.
4 Detective William Lee and appellant's co-conspirator, Mr. Ramirez, testified at trial that appellant's nickname was "Chino." Detective Huie also testified that he searched Mr. Beltran-Flores' cell phone and found a picture of appellant attached to a text message conversation with "Chino."
Appellant was taken to the police station, where he signed an Advice of Rights and Waiver Form and provided a statement. In the beginning of his statement, appellant admitted that he, Mr. Beltran-Flores, and Mr. Ramirez were driving through Adelphi, but he suggested that he had no idea what was about to occur when Mr. Beltran-Flores moved to the back seat [*6] of the vehicle and told him to drive down Mr. Marquez's street. After appellant's initial narration, Detective Samantha Milligan wrote 41 questions on the statement, which appellant answered. Appellant then provided a second narration, in which he confessed that (1) he had a "beef" with Mr. Argueta; (2) he knew that Mr. Beltran-Flores "planned to get" Mr. Marquez; (3) they had traveled to Adelphi several times to look for Mr. Marquez; (4) he knew that Mr. Beltran-Flores had a gun when he picked him up on the day of the shooting; and (5) he knew what Mr. Beltran-Flores would do if they found Mr. Marquez. Following the second narrative, Detective Milligan wrote an additional five questions, which appellant answered. These questions revealed, inter alia, that appellant lied about the gun in the initial part of his statement because he did not want Mr. Beltran-Flores or Mr. Ramirez to know he was the one telling the police about the gun, and Mr. Beltran-Flores "wanted to get back at [Mr. Marquez] for landing [Mr. Argueta] in court."
Additional facts will be discussed as necessary in the discussion that follows.
Admissibility of the Cell Phone Evidence
Appellant contends that the [*7] circuit court erred in admitting the cell phone recovered from Mr. Beltran-Flores. He makes several arguments in this regard. First, he contends that the State did not lay a proper foundation to authenticate the text messages displayed to the jury because: (1) Detective Huie "never testified that the text-messages he displayed to the jury are the same text-messages, and in the same condition (unaltered), as when he originally discovered the text-messages on the cell phone"; and (2) "Detective Huie never testified that 'Chino' was the Appellant or the phone number attached to Chino's alleged text message was the appellant's" phone number. Second, he argues that the cell phone contained "a lot of irrelevant and prejudicial material."5 Finally, he asserts that it was error to admit the cell phone because, under Carpenter v. State, 196 Md. App 212 (2010), and Griffin v. State, 419 Md. 242 (2011), the State failed to produce a witness to testify how the text messages introduced at trial came to be stored on the phone.
5 Appellant claims that these materials include "photographs of tattoos, drawings of skeletal jokers, selfie photographs of co-defendant making potential gang hand gestures, photographs of teenage females in seductive poses, text message conversations with [*8] unrelated individuals, possible video clips, etc."
The State contends that the only issue that appellant preserved for this Court's review is the argument that there was not a sufficient showing that the text messages were "to or from" appellant. With respect to this issue, the State argues that the "text messages were properly authenticated as text messages to and from" appellant.
The State initially sought to introduce the text messages found on the cell phone through testimony from Detective Huie regarding a printout (State's Exhibit 49), which was derived from a "forensic image" generated from Mr. Beltran-Flores' cell phone.6 Appellant objected, arguing that "we're completely void of any testimony from anybody who can state as to how that information has been pulled from that phone." Counsel explained that "our objection is that the State has not produced a witness to explain how that information came to be stored on the cell phone, which we do believe is a requirement for chain of custody and authentication of the text messages."
6 This forensic image, a collection of data recovered from the cell phone, was burned onto a CD (marked as State's Exhibit 50) and referenced [*9] at trial. Neither party, however, attempted to have it entered into evidence.
The State argued that the printout of the text messages was admissible, stating as follows:
The detective testified that he reviewed the record, he reviewed the phone and those records came from that phone. And so the matter of extraction, if he is not the one that personally extracted it, this is not a chain-of-custody issue.
What is an authentication issue that he can attest to the fact that the records came from that phone. He doesn't have -- he doesn't have to personally extract everything in order to say that those records, example that I would give the Court, is a search warrant.
The person that -- when the search warrant is done, somebody takes a photograph of those photos. The person that comes in to authenticate the photos doesn't necessarily have to be the person that took the photos.
The person that takes the pictures doesn't have to come to court and say, I took these pictures. But someone that says, yes, these pictures fairly and accurately reflect the way the scene was that day was enough to authenticate the pictures.
And I would bring the court's attention towards that's what the authentication [*10] process is, somebody looking at it saying this is what I know to be -- I looked at it and this is an accurate representation of what is on there. And I'm not seeking to move the CD, obviously, because there's a lot more on there, but that he reviewed the CD and those text messages are from what was on that phone.
Appellant disagreed, arguing that Detective Huie did not personally extract the information from the phone, and the State needed "to produce [an] outside party" to authenticate the printout:
We have heard testimony that this evidence was recovered and submitted into the Evidence Control Unit and, therefore, we are arguing that the chain of custody does apply. Detective Huie is not a worker or an employee, whatever company was hired to extract the text messages that Detective Huie later reviewed.
Without that witness to testify whatever employee or custodian of records from whatever company that was used by the State to extract those records, without that person here to testify as to how that extraction occurred and that these are true and accurate representations as to what they pulled off the phone, certainly Detective Huie cannot articulate that these records that are voluminous [*11] is a true and accurate representation of what was pulled off the phone.
Detective Huie did not personally do it. It was an outside party. The State needs to produce that outside party if they intend to introduce these records into evidence through a chain of custody, which is a proper argument, and also through being able to authenticate that these are documents that were stored in the cell phone and retrieved off the cell phone and in the same condition that it was when he originally recovered the cell phone.
The court agreed with appellant, stating that the prosecutor could not authenticate the evidence by having the officer testify that
these text messages were recovered from the cell phone unless he personally went through and looked at every single text message that was on that phone and then personally went through every single document in that packet and can say, I looked at this on the cell phone and this is the same one I saw on the cell phone there.
The court concluded that the State "would need whoever extracted those records from that cell phone." The court asked appellant if there were any other objections to the text messages, and appellant stated that the text messages were [*12] hearsay.
Given the court's ruling, the State pursued a different method to introduce the text messages. The prosecutor asked the court to allow the Detective to "turn on the cell phone and go through it." The court responded: "I do think you need somebody to authenticate that and I did not hear that, but I'm going to sustain their objection right now." At this point, Detective Huie temporarily stepped down so another witness could testify.
When Detective Huie was recalled to the stand, the court advised that it was "going to sustain the defense's objection to the admittance of the paper documents of the cell phone." The State then sought to have the detective "publish what he found on that cell phone through the projector," and the following colloquy occurred:
[PROSECUTOR'S CO-COUNSEL]: I didn't know if you wanted us to bring it up to the bench to show you the text messages we're talking about rather than talk about them hypothetically.
THE COURT: No, it's not necessarily me. Their objection was to the fact that a third party extracted information from the cell phone and that third party is not here to explain how it was extracted, whether what was extracted was exactly on the cell phone. [*13]
Now, the State is not going to introduce the [text message printout] document, but we're going to have the detective -- and the cell phone was secured pursuant to a search warrant -- go through and, I guess, testify about specific text messages; is that correct?
THE COURT: Okay. So I'll sustain their objection. After that, I'm just calling the balls and strikes.
[PROSECUTOR]: Fair Enough. Thank you.
The State then produced Mr. Beltran-Flores' cell phone (State's Exhibit 48) and questioned Detective Huie about whether he had looked through the phone and seen any text messages communicated between appellant and Mr. Beltran-Flores. Counsel for appellant objected, arguing that the text messages were hearsay and no foundation had been laid to show that the phone number or the text messages were tied to appellant. Counsel argued that, without a proper foundation, the hearsay within the text messages could not be admitted under the party-opponent exception. The court sustained the objection, explaining that the State must first make the connection between appellant and the phone contact before questioning the detective about the substance of what he found on the phone.
After [*14] objections were sustained to questioning of Detective Huie regarding appellant's nickname, the State sought to make the connection by having Detective Huie testify that he had examined the phone and seen appellant's picture attached to the cell phone contact. Following a bench conference, this colloquy occurred:
[DEFENSE COUNSEL]: Just so we don't keep coming up, there is going to be a continuing objection in regards to the text messages. There is a piece of document that I think you're intending to introduce which speaks about all - - how the text messages we redacted.
[PROSECUTOR]: No, we're going to introduce two or three text messages from the phone.
[DEFENSE COUNSEL]: We believe that the appropriate method would've been [to] introduce that as a business record with that proper authentication of that employee extracting the phone and not through a witness. So it's just a continuous objection to the final questioning to the text messages.
THE COURT: Okay. I think the continuing objection -- I hope the continuing objection sticks. You can always just object and I'll just rule on it then, but I know what your rationale is for the objection.
The State subsequently elicited testimony from [*15] Detective Huie that he had found a text message conversation between a contact with a picture of appellant and Mr. Beltran-Flores. The State then moved to enter the cell phone into evidence. Appellant objected, and without further discussion, the court admitted the cell phone (State's Exhibit 48).
At this point, several text messages were displayed on a projector and read by Detective Huie. Detective Huie testified to the contents of the text messages, as follows:
The first text message is from Kerho . . . . I just wanted to see what was good for today. And then Chino replies . . . (In Spanish) what's good later? What's up (in Spanish). I'm going to have the car until 1 or 2 . . . . That's Chino replying . . . . Then Kerho replies, you tell me, Nika (phonetic). Chino replies to Kerho, you trying to do -- . . . . Kerho replies, naw. Chino: Then what you trying to do?7
7 Detective Huie testified that "Kerho" was the nickname of appellant's "co-defendant." It is unclear to which co-defendant Detective Huie was referring, but the State argues that "there is a reasonable inference that Kerho was Beltran-Flores' nickname because the phone was seized from Beltran-Flores . . . whose nickname was [*16] 'Joker' . . . and 'Kerho' is the word 'Joker' with the syllables reversed and "Jo" pronounced as it would be in Spanish."
The record suggests, and the parties agree, that an additional text message was displayed to the jury on the projector, which purportedly read: "Do you want to do algo to Monster tonaka." Before Detective Huie read the message, the prosecutor asked, "who's Monster?"8 Appellant's counsel objected, and during a bench conference, the court stated the following:
You haven't established through this witness what their nicknames are. He can read, because the phone is subject to the search warrant, what's on the phone, but you through your questions and he through his answers are making these links. There's no evidence and it's hearsay to link those nicknames to those people.
8 The inference that the prosecutor displayed this last text message on the projector is supported by the prosecutor's question about "Monster" and his later closing argument, in which he asked the jury the rhetorical question, "[r]emember the text message on September 22, 2011, the defendant sent a text message to Joker? You trying to go do something to Monster tonight? That's what that means."
Detective Huie then [*17] read the phone number associated with the contact information for "Chino." No additional text messages were read to the jury by Detective Huie.
We begin our analysis by addressing the State's preservation argument. This Court generally will not decide an issue "unless it plainly appears by the record to have been raised in or decided by the trial court." Md. Rule 8-131(a).
Here, as set forth, supra, two separate evidentiary rulings were rendered, one for the text message printouts, and the other for the admission of the cell phone and Detective Huie's testimony about the text messages that he personally witnessed. A careful review of the record leads us to conclude that appellant did not object to the Detective's testimony or the admission of the cell phone on the grounds that he argues here, with the exception of the argument regarding the appellant's connection to the nickname and phone number, and accordingly, these other arguments were not preserved. We explain.
Appellant argued below that the text message printout (State's Exhibit 49) was not authenticated by the computer forensic agent who extracted the phone messages, and therefore, the printouts were inadmissible. The trial court [*18] agreed, so the State attempted to get the text messages to the jury by having Detective Huie testify about the text messages that he personally had observed on the cell phone. Appellant objected to the State's questioning on the grounds that no evidence had yet been produced that demonstrated a connection between appellant and the messages. After Detective Huie confirmed that he had personally examined the cell phone and witnessed text messages from a contact containing appellant's picture, appellant made a continuing objection to the cell phone text messages, arguing as he did with respect to the text message printouts, that there was no testimony from the forensic agent who extracted the phone's data to authenticate the text messages. In making this continuing objection, appellant's counsel referenced a "piece of document," authentication as a business record, and "authentication of that employee extracting the phone." As the State notes, the objection was "beside the point because the physical exhibits obtained from the extraction -- the printout and the CD -- had already been excluded, and Det. Huie's testimony and the texts on the screen were not business records." The trial court [*19] responded that it hoped that the continuing objection would "stick," and if the defense made another objection, the court would know the rationale for the objection.
When the State ultimately moved to admit the cell phone into evidence, appellant objected, without stating any new grounds, implicitly relying on his earlier continuing objection. On appeal, however, appellant now raises errors that were not addressed at trial, i.e., the lack of testimony that the text messages presented were in an unaltered condition, the cell phone contained irrelevant material, and the lack of testimony regarding how the text messages came to be stored on the phone. Because these arguments were not raised below, they are not preserved for this Court's review, and we decline to review them.
Remaining Preserved Authentication Issue
Appellant contends that the State failed to properly authenticate the text message stating: "Do you want to do algo to Monster tonaka." In support, he argues that "Detective Huie never testified that 'Chino' was the Appellant or the phone number attached to Chino's alleged text message was the Appellant's."
The State contends that this evidence was established through earlier [*20] testimony, i.e., Mr. Ramirez testified that appellant's nickname was Chino and his phone number was 240-704-4355. Moreover, the State argues, there was sufficient circumstantial evidence presented at trial for a reasonable jury to find that the text messages were sent to and from appellant, noting that appellant's "picture accompanied each of the text messages from Chino at 240-704-4355," and the "internal contents of the messages further authenticated them" as messages from appellant.
This Court recently explained the standard of review of a trial court's decision regarding the admission of evidence as follows:
"Determinations regarding the admissibility of evidence are generally left to the sound discretion of the trial court. Hajireen v. State, 203 Md. App. 537, 552, cert. denied, 429 Md. 306 (2012). This Court reviews a trial court's evidentiary rulings for abuse of discretion. State v. Simms, 420 Md. 705, 724-25 (2011). A trial court abuses its discretion only when 'no reasonable person would take the view adopted by the [trial] court,' or 'when the court acts "without reference to any guiding rules or principles."' King v. State, 407 Md. 682, 697 (2009) (quoting North v. North, 102 Md. App. 1, 13 (1994))."
Baker v. State, 223 Md. App. 750, 759 (2015) (quoting Donati v. State, 215 Md. App. 686, 708-09).
"Maryland Rule 5-901 addresses the requirements to authenticate evidence, including electronically stored evidence." Donati, 215 Md. App. at 709. It provides as follows: "The requirement of authentication [*21] 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." Md. Rule 5-901(a). The Court of Appeals recently addressed authentication in the context of social media evidence, holding that, "to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be." Sublet v. State, 442 Md. 632, 678 (2015).
Subsection (b) of Rule 5-901 provides examples of how to authenticate evidence. It states, in pertinent part, as follows:
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Rule:
(1) Testimony of witness with knowledge. Testimony of a witness with knowledge that the offered evidence is what it is claimed to be.
* * *
(4) Circumstantial evidence. Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.
* * *
(10) Methods provided by statute or rule. Any method [*22] of authentication or identification provided by statute or by these rules.
"Rule 5-901(b), by its express language, which is derived from Federal Rule of Evidence 901, makes clear that the authentication methods listed in this Rule are not exhaustive." Donati, 215 Md. App. at 710. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 544 (D. Md. 2007) ("the methods identified by Rule 901(b) are non-exclusive")."
In Dickens v. State, 175 Md. App. 231 (2007), this Court addressed the authentication of text messages. In that case, Mr. Dickens fatally shot his wife; the only dispute was whether the killing was premeditated murder or a lesser degree of culpable homicide. Id. at 234-35. The State's theory was that Mr. Dickens had been planning for several weeks to murder his wife because she was seeing another man. Id. at 236. Mr. Dickens, however, told the police that he went to his wife's mother's house with a gun planning to commit suicide in front of his wife, but after he told his wife of his plan, and she told him to "go ahead," Mr. Dickens "lost it" and shot his wife. Id. at 235.
The State introduced several text messages, the content of which showed "veiled threats to kill" the victim. Id. at 238-39, 241. This Court held that the evidence presented was properly authenticated. Id. at 238-39. In so holding, we noted that one of the texts was sent from a telephone number associated with a cell phone that was possessed by the defendant [*23] until he discarded it shortly after the murder. Id. Another set of text messages was properly authenticated through circumstantial evidence; the nickname used, "'Doll/M," "was an obvious reference to the famous movie (1954) and television remake (1981) 'Dial M for Murder,'" and one of the messages made a reference to wedding vows. Id. at 239-40.
Here, the State adduced sufficient direct and circumstantial evidence to permit a reasonable juror to find that appellant was the sender and recipient of the text messages in question. The texts were from "Chino," appellant's nickname,9 Mr. Ramirez testified that the phone number associated with the contact "Chino" was appellant's phone number, and Detective Huie testified that one of the texts displayed a picture of appellant. Finally, the text messages were authenticated by circumstantial evidence given the context of the messages, which included that appellant had access to a car, appellant's reference to the victim's nickname "Monster," and the indication that Chino was aware that there was animosity between Mr. Marquez and members of MS-13.
9 Detective William Lee and Mr. Ramirez testified at trial that appellant's nickname was "Chino."
Under these circumstances, [*24] the text messages were sufficiently authenticated. Cf. Sublet, 442 Md. at 674-76 (twitter messages authenticated where: (1) witness testified that "TheyLovingTc" was Harris, and that "OMGitsLOCO" was Harris' friend Foulke; (2) Harris' picture accompanied messages from TheyLovingTC; and (3) content of messages demonstrated that they were written by someone with knowledge of and involvement in the situation). Accordingly, the circuit court did not abuse its discretion in admitting the cell phone text messages.
Finally, even if the admission of the texts was error, it would not require reversal of appellant's convictions. Harmless error exists when "'there is no reasonable possibility that the evidence complained of -- whether erroneously admitted or excluded -- may have contributed to the rendition of the guilty verdict.'" Dove v. State, 415 Md. 727, 743 (2010) (quoting Dorsey v. State, 276 Md. 638, 659 (1976)).
Here, text messages added minimally to the State's case. They merely permitted a finding that appellant had a car and knew before the shooting that Mr. Beltran-Flores intended to harm Mr. Marquez.10 The evidence, however, was merely cumulative to appellant's own statement, in which appellant admitted, inter alia, that Mr. Beltran-Flores had "planned to get" Mr. Marquez [*25] for assisting the police in the case against Mr. Argueta, that appellant knew Mr. Beltran-Flores had a gun with him when they drove to Adelphi on the day of the shooting, and he "had an idea" of what Mr. Beltran-Flores intended to do when they got there.
10 The record reflects that the text asking if Mr. Beltran-Flores wanted to "do algo to Monster tonaka" was sent on September 22, 2011, and the shooting at issue here was on November 14, 2011.
The overwhelming evidence against appellant, including his own statement, Mr. Ramirez's testimony that appellant drove past the victim slowly after Mr. Beltran-Flores suggested they do a "drive by," and DNA evidence recovered from the black mask, was overwhelming. Accordingly, even if the court erred in admitting the text messages, any error was harmless error that does not require reversal of appellant's convictions.
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