Commercial Litigation and Arbitration

Facebook Account Authenticated by Testimony Witness Communicated with Defendant on It & Photo on It Was Defendant — Post Authenticated by Contents and Temporal Proximity to Post Def. Admitted He Made — Printout = 1003 Duplicate (Thus, Best Evidence)

People v. Dunn, 2016 Mich. App. LEXIS 942 (Mich. Ct. App. May 12, 2016):

Defendant struck and killed Benjamin Berlin with his pick-up truck at a mobile home park on October 30, 2013. Shortly before this incident, defendant posted on Facebook, stating: "I wanna kill" and, later, "i prob wont be here im bout to go do sumthin stupid and ill b gone for awhile lol for reall see ya." Not long after posting these comments, defendant and his friend, Corey McCulloch, went to pick up their friend, Nicole Benn, at the mobile home park where Berlin also lived with his family. On his way to collect Benn, defendant drove erratically through the trailer park, speeding well-above the 15 mph posted limit, running stop signs, and squealing his tires. Berlin and others yelled at defendant to slow down; and, when defendant stopped to pick up Benn, a resident of the park approached the vehicle and asked them to slow down. Nonetheless, after picking up Benn, defendant continued [*2]  speeding through the park.

As defendant drove toward the park's exit, he again passed Berlin, who was outside with several family members and friends. Although there are some discrepancies among the witnesses' descriptions of what followed, the evidence indicates that defendant ran a stop sign at a nearby intersection and, as a result, Berlin again yelled out to defendant to slow down. In response, defendant abruptly stopped his vehicle, squealing his tires in the process, and then quickly reversed. After defendant reversed, Berlin was positioned somewhat to the front of the truck. Defendant then paused, perhaps as long as 30 to 45 seconds. Defendant then quickly accelerated, driving straight for Berlin, and struck him with the truck. Berlin went flying over the hood of the truck and hit his head on the windshield before eventually falling to the ground. Berlin later died from his injuries after being removed from life support.

After hitting Berlin, defendant did not stop. He drove home and, rather than park in the driveway, he parked on the side of the house in an area partially concealed by trees, making it more difficult to see his truck from the road. Defendant later dropped Benn [*3]  down the road from the mobile home park, but he avoided going into the park. The following day, when other efforts to find defendant proved unsuccessful, police went to look for defendant at his grandmother's house. While police were there, defendant arrived as a passenger in a vehicle. Ignoring police requests to stop, the vehicle fled, prompting a police pursuit. When the vehicle eventually stopped, defendant then fled on foot until he was apprehended by police.

Defendant was charged with one count of open murder, MCL 750.318. Following a lengthy trial, the jury received instructions on first-and second-degree murder and involuntary manslaughter. The jury convicted defendant of first-degree premediated murder. Defendant filed a motion for a new trial in the trial court, arguing that the evidence adduced at trial was insufficient to support the verdict and that his trial counsel had provided ineffective assistance. The trial cou



Defendant argues [*23]  that trial counsel provided ineffective assistance by failing to object to the admission of the Facebook posts. According to defendant, counsel should have objected to the messages because they were irrelevant, MRE 401, unduly prejudicial, MRE 403, not properly authenticated, MRE 901, and not the original writing, MRE 1002.

As discussed in more detail below, defendant has not shown that counsel was unreasonable in failing to challenge the admission of the Facebook posts or that such an objection would have altered the outcome of the proceedings. See Douglas, 496 Mich at 592. The decision to object or to move for the exclusion of evidence is typically a matter of trial strategy, Eliason, 300 Mich App at 302-303; and, we will not second-guess counsel on matters of trial-strategy, People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). As noted, "[e]ffective assistance of counsel is presumed, and the defendant bears a heavy burden to prove otherwise." Mack, 265 Mich App at 129. Counsel will not be considered ineffective for failing to advocate a meritless position. Id. at 130.

A. MRE 901

Under MRE 901(a), authentication constitutes a condition precedent to admissibility. To merit admission, there must be sufficient evidence "to support a finding that the matter in question is what its proponent claims." MRE 901(a); People v McDade, 301 Mich App 343, 352; 836 NW2d 266 (2013). MRE 901(b) sets forth a non-exhaustive list of methods of authentication, including testimony [*24]  from a witness with knowledge that a matter is what it is claimed to be, MRE 901(b)(1), and evidence of "distinctive characteristics," meaning "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances," MRE 901(b)(4). "It is axiomatic that proposed evidence need not tell the whole story of a case, nor need it be free of weakness or doubt. It need only meet the minimum requirements for admissibility." McDade, 301 Mich App at 353 (citation omitted). Moreover, "a trial court may consider any evidence regardless of that evidence's admissibility at trial, as long as the evidence is not privileged, in determining whether the evidence proffered for admission at trial is admissible." Id. (citation omitted).

In this case, the posts in question were made on an account under the name of "Sean Smoke." Both Benn and McColloch, friends of defendant and witnesses with knowledge, confirmed that this was defendant's alias and defendant's Facebook account.6 For example, Benn identified the profile picture as a Halloween photograph of defendant, and she explained that she knew it was defendant's account because they had been in contact through the page, during the 3 or 4 years that they had been [*25]  Facebook friends. This was sufficient evidence to establish that the posts were made on a page belonging to defendant. See MRE 901(b)(1). See also Campbell v State, 382 SW3d 545, 550 (Tex App 2012) (recognizing that one of the problems with authenticating social media postings is that "anyone can establish a fictitious profile under any name"); Smith v State, 136 So 3d 424, 432 (Miss 2014) (same).

6   Out of the presence of the jury, Benn explained that defendant used a pseudonym on Facebook because he was a registered sex offender subject to prohibitions regarding his Internet usage.

Nonetheless, defendant argues that counsel should have objected because the prosecutor failed to establish that defendant personally posted the specific comments in question. See Campbell, 382 SW3d at 550 (recognizing that a second problem with authenticating social media postings is that "a person may gain access to another person's account by obtaining the user's name and password," meaning that it "cannot be certain that the author is in fact the profile owner"). However, defendant makes this claim in the ineffective assistance context and, in this context, he has not shown counsel performed unreasonably or that a different result would have been probable.

In particular, we note that defendant has never actually denied authorship of the [*26]  first post in question--not in the trial court, not in his affidavit supporting his request for a new trial, and not on appeal. In such circumstances, counsel had no reason to doubt the authenticity of the post and was not unreasonable in pursuing a trial strategy other than an objection under MRE 901. Indeed, as evinced by an affidavit from Detective Bradley Delaney, presented by the prosecutor in response to defendant's motion for a new trial, defendant admitted to police that he made the first posting. Defendant's admission of authorship would serve as sufficient evidence for authentication purposes. See Smith, 136 So 3d at 433. And, defense counsel was evidently aware of this interview given that, at trial, there was discussion, out of the jury's presence, as to whether the attorneys could question the detective about defendant's explanations for the posts. In light of defendant's admission during this interview, any objection under MRE 901 would have been futile, and counsel will not be considered ineffective for failing to make a futile objection. See Mack, 265 Mich App at 130. Indeed, it was sound trial strategy for counsel not to object to the authentication of the posts because the prosecution may have been prompted to elicit foundational [*27]  testimony from Detective Delaney regarding defendant's admissions before the jury. Such testimony would have been damaging to the theory defense counsel argued to the jury--that defendant's responsibility for the posts was pure speculation.

We note that, according to Detective Delaney's affidavit, during his interview with police, defendant denied making the second posting. However, given the temporal proximity between the two posts, the connection in the content of the two messages, and the circumstances surrounding the post (i.e., defendant's reckless and even "stupid" behavior shortly after this posting), we are not persuaded that defendant's denial of authorship would undermine the authentication of the second post or that counsel would have prevailed on an objection to this evidence. See McDade, 301 Mich App at 353. In any event, the first post would still have been admitted and this first, more incriminating, post was, on its own, strong evidence of defendant's state of mind, such that defendant cannot show prejudice from counsel's failure to object to the second posting. On the whole, defendant has not demonstrated that counsel provided ineffective assistance by failing to object to the Facebook posts on [*28]  the basis of MRE 901.

B. MRE 401 AND MRE 403

In addition, contrary to defendant's arguments, the Facebook posts were relevant and not unfairly prejudicial, meaning that counsel was not ineffective for failing to challenge the admission of the postings on this basis. Under MRE 401, "relevant evidence is any fact that is of consequence to the determination of the action." People v Fisher, 449 Mich 441, 452; 537 NW2d 577 (1995). The posts show that, less than 90 minutes before he drove his truck into Berlin, defendant made grave remarks about wanting to kill someone and made ominous predictions about being gone for a while as a result of doing something "stupid." The posts were thus highly illustrative of defendant's state of mind just prior to the killing. Cf. Eliason, 300 Mich App at 301; People v Rushlow, 179 Mich App 172, 176; 445 NW2d 222 (1989). Indeed, the posts were evidence of premeditation and deliberation because they suggested that defendant had considered killing and the consequences of killing before he committed murder. Cf. Eliason, 300 Mich App at 301. While decidedly incriminating, the posts were not overly graphic or sensational, nor did they interject extraneous considerations into the trial. See Mills, 450 Mich at 75; Fisher, 449 Mich at 452. Given the strong probative value of the posts with regard to defendant's state of mind, the posts' probative value was not substantially outweighed by the danger of [*29]  unfair prejudice. See MRE 403; People v Sabin (After Remand), 463 Mich 43, 70-71; 614 NW2d 888 (2000). Counsel was not ineffective for failing to raise a futile objection to the posts on the basis of MRE 401 and MRE 403.7 Cf. Eliason, 300 Mich App at 302.

7   Defendant also briefly challenges the Facebook posts to the extent that the evidence admitted also contained hearsay in the form of comments from defendant's "friends" on Facebook in response to his original postings. See MRE 801. Even if these remarks should not have been admitted, we cannot see that defendant was prejudiced by counsel's failure to object. The significance of defendant's postings was his state of mind as expressed in the posts authored by defendant. It is not reasonably probable that his friends' various comments, even if objectionable, affected the outcome of the proceedings.

C. MRE 1002

We also reject defendant's argument that the posts should have been excluded under the "best evidence rule." "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute." MRE 1002. In this case, defendant appears to argue that his computer hard drive and/or an electronic copy of the postings should have been admitted as the "best evidence." However, under [*30]  MRE 1003, "[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." As discussed supra, any objections regarding authenticity would have proved meritless, and we can see nothing in the circumstances that would make it unfair to admit duplicates of the Facebook postings such as a printout. Consequently, duplicates were admissible under MRE 1003, and object by counsel on this basis would have been futile, and defendant has not shown prejudice. Overall, counsel was not ineffective for failing to object based on MRE 1002.


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