Social Media Authentication — Facebook Message Excluded for Failure to Present Evidence of Distinctive Characteristics Linking Contents Linking to Alleged Sender — Methods of Twitter & Facebook Authentication

Richardson v State, 2017 Ind. App. LEXIS 286 (Ind. Ct. App. July 6, 2017):

P1 Appellant-Defendant, Terrance L. Richardson (Richardson), appeals his conviction for murder, a felony, Ind. Code § 35-42-1-1.

P2 We affirm.

ISSUES

P3 Richardson raises two issues for our review, which we restate as:

   (1) Whether the trial court abused its discretion when it excluded a Facebook message from the evidence presented at trial; and

(2) Whether the State presented sufficient evidence beyond a reasonable doubt to rebut Richardson's claim of self-defense.

FACTS1 AND PROCEDURAL HISTORY

1   The facts are partially derived from the various security cameras outside and inside the convenience store, as well as from a remodeling business one door south of the store. These security cameras captured images only and did not register sound.

P4 On the afternoon of October 4, 2015, Richardson, and his three friends, Jalen Heffner (Heffner), Kaylend Gilbert (Gilbert), and Steven Kendall (Kendall)--all approximately seventeen years old--walked together to the New York Express convenience store, located at 2801 East New York Street--on the corner of Rural Street and [*2]  New York Street--in Indianapolis, Indiana. Richardson and Gilbert entered the store, while Heffner and Kendall waited outside. After a short while, Kendall walked around the corner of the store, while Heffner sat on the curb in front of the store's entrance. A couple of seconds after Kendall walked around the corner, Richardson exited the store and joined Heffner on the curb; Gilbert remained inside, waiting in line at the cash register. When his purchase was complete, Gilbert joined Richardson and Heffner at the curb, just as Kendall turned the corner and walked towards them.

P5 About a minute later, the group turned their attention to Rural Street as a black car pulled up. Richardson, Heffner, and Gilbert moved toward the vehicle and leaned into the passenger side window to start conversing with the occupant. Kendall hung back, remaining on the curb. Eventually, Kendall walked towards the vehicle and appeared to speak with the occupant. Then, Richardson, Gilbert, and Kendall moved away and began talking amongst themselves on the curb; Heffner remained at the vehicle. During the conversation, Kendall lifted his shirt with both hands and showed the other two a black item--appearing to [*3]  be a gun--in the waistband of his pants. A couple of seconds later, Heffner shook hands with the occupant of the vehicle, which then drove away. All four talked briefly in front of the store, before walking away. Approximately thirty seconds later, Heffner and Richardson returned to the store. Upon entering, they immediately walked toward the back where Heffner reached in his right-hand pocket and handed Richardson a black object, which Richardson quickly pocketed in his jacket. The two then exited the store without making a purchase.

P6 The four boys walked together to the parking lot behind the convenience store. Behind the store, Kendall stopped first. Richardson turned and walked back to Kendall, leaning down briefly with his hands on his knees. Richardson then faced Kendall and put his hand in his jacket. Heffner faced Kendall at the opposite side of Richardson. Richardson pulled out a gun and abruptly lunged at Kendall. Kendall put his left hand out to ward off the attack, and Richardson fired a single shot into Kendall's chest.

P7 Heffner immediately sprinted back to the front parking lot of the New York Express. Richardson and Gilbert ran into each other as they fled towards Rural [*4]  Street, causing Gilbert to drop his cellphone. Richardson, Gilbert, and Heffner met up after crossing the street and started walking as if nothing had happened. Although shot, Kendall managed to run in the opposite direction. As he ran, he dropped his gun. Seconds after he picked up the gun, he collapsed on the sidewalk and died.

P8 When law enforcement arrived, they discovered Kendall face-first on the concrete, showing no signs of life. They recovered a handgun a few feet from Kendall's body. The handgun was fully loaded but did not have a bullet in the chamber. Forensic testing of the firearm revealed that it was not the weapon that had fired the fatal shot. A cellphone was recovered from Kendall's body. Another cellphone, later determined to belong to Gilbert, was found in the parking lot where Richardson and Gilbert had bumped into each other as they fled. Police officers obtained the surveillance footage from the New York Express and from the remodeling business, which allowed the officers to quickly identify the individuals involved.

P9 On October 5, 2015, the State filed an Information charging Richardson with murder, a felony. On November 14 through 16, 2016, the trial court [*5]  conducted a joint bench trial for Richardson, Heffner, and Gilbert.2 At the close of the evidence, the trial court found Richardson guilty as charged, but found Gilbert and Heffner not guilty. On December 1, 2016, the trial court sentenced Richardson to fifty-five years executed in the Indiana Department of Correction.

2   All three defendants were charged with murder, but only Richardson was found guilty. The trial court did not find sufficient evidence to prove beyond a reasonable doubt that Heffner and Gilbert were knowing accomplices in Kendall's murder.

P10 Richardson now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Admission of Evidence

P11 Richardson contends that the trial court abused its discretion when it excluded a Facebook message between Kendall and a third party from the evidence admitted at trial. The trial court has inherent discretionary power over the admission of evidence, and its decisions are reviewed only for an abuse of that discretion. Bowman v. State, 73 N.E.3d 731, 734 (Ind. Ct. App. 2017), trans. denied. Accordingly, we will reverse the trial court's decision only when it is clearly against the facts and circumstances before the court. Id. Even if the trial court abused its discretion in admitting evidence, the judgment will be undisturbed if the decision to admit evidence is harmless error. Id. "Harmless error occurs 'when the conviction is supported by such substantial independent evidence of guilt as to satisfy [*6]  the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction.'" Id. (quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)).

P12 During his case-in-chief, Kendall called Detective Grant Melton of the Indianapolis Metropolitan Police Department (Detective Melton). Detective Melton testified about his examination of the password-protected cellphone that had been recovered from Kendall's body. During his examination, Detective Melton retrieved a Facebook profile under the name "Bandman Trapp." (Transcript Vol. III, p. 63). Through Facebook's Messenger application, Detective Melton discovered a conversation between Bandman Trapp and another account with the name "Little L Mike Brookside" from a couple days prior to the shooting. (Tr. Vol. III, p. 64). Richardson moved to admit the message and the State objected on grounds of improper foundation, relevance, and hearsay.

P13 After the trial court expressed concerns about the evidentiary foundation of the message, Richardson questioned Detective Melton about the author of the message and the recovery of the data during follow-up questioning. Upon being interrogated by the State, Detective Melton noted that the Facebook account could [*7]  not only be accessed through the cellphone that was recovered at the scene, but could also be accessed through any computer or any other telephone. "Other than [] having seen Bandman Trapp on that message," Detective Melton had "no idea who made that statement or who composed that message." (Tr. Vol. III, p. 72). He clarified that he did not know who composed the message because anyone could sign into that account on a computer and compose the message which "would then sync to that phone if it's signed into the account." (Tr. Vol. III, p. 72). After the trial court denied the admission of the message based on foundation grounds, Richardson made an offer to prove. In his offer to prove, Richardson indicated that the exhibit would show that on October 1, 2015, Kendall, under his Facebook account of Bandman Trapp, messaged Little L Mike Brookside, "Nah I'm boutta finesse hoodie for this strap but I need you[,]" which Richardson represented to mean, "I'm about to rob somebody for a black gun." (Tr. Vol. III, pp. 83, 84).

P14 "To lay a foundation for the admission of evidence, the proponent of the evidence must show that it has been authenticated." Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. denied. Indiana Rule of Evidence 901(a) provides that "[t]o satisfy [*8]  the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Absolute proof of authenticity is not required. M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016), trans. denied. Rather, the proponent of the evidence must establish only a reasonable probability that the evidence is what it is claimed to be, and may use direct or circumstantial evidence to do so. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. Once this reasonable probability is shown, any inconclusiveness of the evidence's connection with the events at issue goes to evidential weight, not admissibility. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied.

P15 "Letters and words set down by electronic recording and other forms of data compilation are included within Rule 901(a)." Wilson v. State. 30 N.E.3d 1264, 1268 (Ind. Ct. App. 2015), trans. denied. Moreover, Evidence Rule 901(b) provides a non-exhaustive list of evidence that satisfies the authentication requirement. One example is where there is evidence describing a process or system and showing that it produces an accurate result. Evid. R. 901(b)(9). Another example, provided in Evidence Rule 901(b)(4), is where, taken together with all the circumstances, the evidence has distinctive characteristics in appearance, contents, or substance. Federal Rule of Evidence 901(b)(4) uses language identical to that of Indiana Rule of Evidence 901(b)(4). "We [*9]  have previously acknowledged that federal courts have recognized Federal Rule of Evidence 901(b)(4) as one of the most frequently used means to authenticate electronic data, including text messages and emails." Wilson, 30 N.E.3d at 1268.

P16 In Wilson, we addressed whether messages sent through a Twitter social media account were properly authenticated as having been authored by the defendant. Id. at 1268. During trial, a witness testified that she often communicated with Wilson on Twitter and had general knowledge of the account by its "@Nell_FearNoMan" header. Id. at 1268-69. The contents of the account included pictures depicting Wilson holding guns that matched the description of those used in the crime. Id. at 1269. Moreover, there was testimony that Wilson was affiliated with two gangs, and the @Nell_FearNoMan Twitter account frequently used terms referring to those gangs, showing that the author of the messages was affiliated with them. Id. We concluded that "taken together, the witness testimony identifying the Twitter account as belonging to Wilson and the content posted on the account, including pictures and gang references, are more than sufficient to authenticate the Twitter posts as being authored by Wilson." Id.

P17 In M.T.V., M.T.V. admitted, in an interview with [*10]  law enforcement officers, to having had Facebook conversations with B.E., in which B.E. threatened to shoot up the school on April 20, 2018. M.T.V., 66 N.E.3d at 963-64. The Facebook records introduced at the hearing contained the content M.T.V. admitted to. Id. at 964. Furthermore, in addition to having distinctive characteristics in content, the Facebook records were also supported by an affidavit from Facebook's authorized records custodian, which specified, inter alia, that the records were made and kept by Facebook's automated systems and were made at or near the time the Facebook user transmitted the information. Id. At the hearing, law enforcement testified that the procedure used to obtain the Facebook records was an ordinary procedure, previously used for criminal investigations involving Facebook. Id. Concluding that, collectively, the State had established the requisite reasonable probability that the Facebook records corresponded to M.T.V.'s and B.E.'s accounts and that M.T.V. and B.E. authored the conversations therein, we found the records properly authenticated. Id.

P18 Here, Detective Melton described the procedure used to unlock the password-protected cellphone and after opening up the Facebook application, [*11]  he located an account under the name of Bandman Trapp. Upon preliminary questioning by the State, Detective Melton explained that there are several ways a Facebook account could be accessed. He clarified that anyone who signed into the Facebook account, through a computer or cellphone, could compose messages that would then sync to the Facebook application on the recovered cellphone. In other words, Detective Melton had "no idea who made that statement or who composed that message." (Tr. Vol. III, p. 72). Unlike the defendants in Wilson and M.T.V., Richardson did not present any evidence describing distinctive characteristics that could connect the particular statement to Kendall, nor did he present any other indicia of reliability establishing Kendall as the author of the contested statement. Accordingly, the trial court did not abuse its discretion when it refused to admit the Facebook message.

***

CONCLUSION

P24 Based on the foregoing, [*16]  we hold that the trial court properly excluded a Facebook message from the evidence at trial; and the State presented sufficient evidence beyond a reasonable doubt to rebut Richardson's claim of self-defense.

P25 Affirmed.

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