Facebook Photo — Authentication of Photo Does Not Require Authentication of Facebook Page as Belonging to Anyone Depicted in Photograph

State v. Briggs, 2018 Tenn. Crim. App. LEXIS 576 (Tenn. Ct. App. Aug. 2, 2018):

The Defendant's convictions relate to the September 7, 2014 homicide of Kenneth Koster in a tool shed in Campbell County. The Defendant and Brad Phillips fatally shot the victim and fled to Sevier County, where Mr. Phillips was killed by police officers, and the Defendant was arrested for public intoxication. The Defendant was later indicted for one count of first degree premeditated murder and one count of first degree felony murder.

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Jury Trial

At the October 4, 2016 jury trial, Michael Raulston testified that he was the victim's stepson, that he had known the Defendant for a few months, and that he had worked previously with the Defendant and the victim at a hardware store. Mr. Raulston stated that the Defendant had visited the victim's house before the date of the homicide and that the victim and the Defendant were friends.

Mr. Raulston testified that he lived in an apartment above the victim's garage, that he saw the Defendant and Mr. Phillips in the victim's home on September 7, 2014, and that he knew Mr. Phillips as "Bryan Tolliver." Mr. Raulston said that the victim left with the Defendant and Mr. Phillips around 5:30 p.m., that the victim did not come home that night or the next day, and that Mr. Raulston called the police to report that the victim was missing. Mr. Raulston testified that the victim owned a red SUV and that he had [*10]  not seen the SUV in a "week or two."

Sandra Raines, Mr. Phillips's mother, testified that Mr. Phillips began living in a tool shed on her property after his release from prison on parole. Ms. Raines stated that she met the Defendant about three weeks before the victim's murder, that the Defendant "was back and forth in the red SUV for a few days," and that the Defendant was staying overnight in the shed. Ms. Raines stated that Mr. Phillips drove a Nissan truck that he purchased in April or May 2014 and that the truck frequently was not operational.

Ms. Raines testified that she was home on September 7, 2014; that Mr. Phillips, the Defendant, and the victim arrived around 4:00 or 5:00 p.m.; and that she did not recognize the victim. Ms. Raines said that her sister, Lee Ann Winstead, lived in the apartment over her garage and that later in the night Ms. Raines walked outside to speak with Mr. Phillips after having a conversation with Ms. Winstead. Ms. Raines stated that she saw Mr. Phillips's truck parked by the tool shed and that Mr. Phillips walked to the driveway to speak with her. Ms. Raines said that she saw a mattress in the back of the truck, that she asked Mr. Phillips about the [*11]  mattress, and that Mr. Phillips said he was "hauling it off" because the Defendant bled on it. Ms. Raines said that the Defendant was standing outside the shed and that Mr. Phillips said the victim had left. Ms. Raines stated that she went back in the house, that Mr. Phillips came into her bedroom around 11:30 p.m. to say goodbye, and that she heard Mr. Phillips's truck start.

Ms. Raines testified that she awoke at 8:00 the next morning, that Mr. Phillips was gone, and that Ms. Winstead noticed a tarp on the property. Ms. Raines stated that she lifted the tarp and found the victim's body. Ms. Raines said that the victim's face was covered in blood, that he appeared dead, and that she called the police.

Ms. Raines testified that she saw a photograph of Mr. Phillips and the Defendant on Mr. Phillips's Facebook page on September 13, 2014. A photograph of Mr. Phillips's Facebook page, which reflected the photograph of Mr. Phillips and the Defendant that Ms. Raines saw, was received as an exhibit. Ms. Raines stated that she called the police after she saw the photograph because she knew the police were looking for Mr. Phillips and the Defendant. Ms. Raines said that she learned from a televised [*12]  news report that Mr. Phillips had been killed in Pigeon Forge.

Anderson County Sheriff's Officer Kory Blevins testified that on September 7, 2014, he saw a Nissan truck parked by the road. Officer Blevins stated that the truck's license plate number was not registered and that according to the the truck's VIN number, Travis Sexton was the registered owner. Officer Blevins said that he saw methamphetamine laboratory components, bloody shoes, a "large quantity" of blood, and a bloody mattress in the back of the truck.

Anderson County Sheriff's Investigator Jeff Gillum testified that he assisted in the investigation of the Nissan truck in the early hours of September 8, 2014. Investigator Gillum stated that he saw a box of ammunition placed on the back bumper and that he saw a bloody mattress, bloody trash bags, and a piece of white plastic covered in blood in the back of the truck. Investigator Gillum said that he saw blood on the bumper, the driver's side door, and the rear of the truck's interior. Investigator Gillum stated that the passenger-side window was down and that he saw blood on the driver's side door panel and steering wheel.

Travis Sexton, the previous owner of the Nissan truck, [*13]  testified that he sold the truck to Steve Massengill. Jerry Steven Massengill testified that he bought the truck from Mr. Sexton but did not register it or obtain a license plate. Mr. Massengill testified he sold the truck to Mr. Phillips.

TBI Agent James Elkins testified that he searched Ms. Raines's property and the Nissan truck and that he collected evidence and took photographs. Agent Elkins stated that, based on the evidence and the interviews he conducted, Mr. Phillips and the Defendant became suspects in the homicide and that law enforcement began searching for them.

Agent Elkins testified that he did not find evidence of the homicide in Ms. Raines's house or in the apartment over the garage but that inculpatory evidence was found inside and around the tool shed. Agent Elkins stated that bloodstains, bloodstained tape, and tire tracks were observed on the grass near the shed. Agent Elkins said that a daybed frame without a mattress was inside the shed, that he saw bloodstains on the frame, and that bedsheets were hanging around the walls of the shed. Agent Elkins said

that two "greenish gold velour chairs" were in the shed and that one of the chairs was missing its bottom skirt. [*14] 

Agent Elkins testified that he found a .22-caliber rifle cartridge casing behind the bedframe and a loaded handgun and ammunition in a cabinet. Agent Elkins said that he found a .22-caliber rifle, "shotgun" ammunition, and a box containing different caliber bullets near the cabinet. Agent Elkins said that a fired cartridge casing was inside the rifle.

Agent Elkins testified that he found a metal clamp, "a duffle bag strap," and a piece of yellow rope on the grass near a piece of "packing tape." Agent Elkins stated that he found another metal clamp and more of the strap and rope in the Nissan truck. Agent Elkins said that he saw a bloodstain and "drag mark[s]" on the grass. A photograph of the victim's body was received as an exhibit, and Agent Elkins stated that the photograph reflected the victim's body "wrapped" in a tarp. Agent Elkins said that "a piece of white corrugated bath board is located underneath his body" and that the bath board appeared to be similar to the plastic found in the truck. Agent Elkins said that he unwrapped the tarp, that the victim's body was covered in blood and maggots, and that he found a "small plastic or polycarbonate lens" on the body. Agent Elkins stated [*15]  that he found a pair of sunglasses with a missing lens in the truck.

A photograph of the Nissan truck was introduced as an exhibit and reflected that a mattress, a bath board covered in blood, flip-flops, yellow rope, and a metal clamp in the back of the truck. Agent Elkins testified that he found two Walmart receipts in the floorboard of the truck, that the receipts reflected purchases for a box of ammunition and a "12-count box of Nitrile gloves," and that the items were purchased on the day of the homicide. Agent Elkins said that he located the Walmart, that he viewed the store's security video recording, and that the recording showed Mr. Phillips and the Defendant purchasing the ammunition and gloves.

Agent Elkins testified that he found the victim's wallet in a Walmart bag in the bed of the truck and that the wallet contained the victim's driver's license and a Department of Veterans Affairs card. A photograph of a sheet of yellow notebook paper was received as an exhibit. Agent Elkins stated that he found "a piece of yellow notebook paper with writing on it in blue ink" in the victim's wallet. Agent Elkins stated that he found another wallet in a "flowered bag" in the truck and [*16]  that the bag contained the victim's checkbook, the Defendant's driver's license, and the Defendant's Social Security card. Agent Elkins stated that he found a bottle of bleach, scrub brushes, and paper towels in the bed of the truck. Agent Elkins said that he found a pair of stained Nitrile gloves in a Walmart bag in the bed of the truck and another pair of gloves in the interior of the truck.

Agent Elkins testified that he found a broken cell phone without a battery and a chair skirt covered in blood in the bed of the truck and that the skirt appeared to match the chairs he saw in the tool shed. Agent Elkins stated that he found a pair of pink flip-flops, a pair of orange flip-flops, and a pair of men's black sandals in the truck. Agent Elkins said that he submitted the evidence he collected for DNA analysis.

Agent Elkins testified that Ms. Raines contacted him after she saw a photograph of Mr. Phillips and the Defendant on Facebook, that he determined the photograph was taken at a Wendy's restaurant, and that he took a photograph of the Facebook page. Agent Elkins stated that the Defendant was taken into custody at Wendy's, that she appeared to be intoxicated, and that he did not interview [*17]  her. Agent Elkins stated that he and Detective Long interviewed the Defendant the next day at the Sevier County Sheriff's Office, that he advised her of her Miranda rights, and that the Defendant signed a waiver of her rights. Agent Elkins said that the Defendant spoke clearly and was able to communicate, that he and Detective Long never threatened the Defendant, and that the Defendant consented to providing a sample of her saliva.

Agent Elkins testified that he interviewed the Defendant from 2:00 p.m. to midnight and that the Defendant was given food and periodic breaks. He stated that the Defendant discussed "matters surrounding the killing of [the victim]." He said that he typed the Defendant's statement and that she made corrections. He stated that the Defendant signed the statement and that she initialed the first and last pages. The statement was received as an exhibit, and Agent Elkins read the statement to the jury.

In the statement, the Defendant said that she met Mr. Phillips six weeks before the homicide and that she met the victim while working with him in Knoxville. She stated that on August 25, 2014, the victim loaned his SUV to her and Mr. Phillips to drive to Louisville, [*18]  Kentucky, to sell methamphetamine. She stated that the victim loaned her and Mr. Phillips his bank card to purchase gas, $260 cash, and a .25-caliber pistol for protection. The Defendant said that on August 29, 2014, the SUV broke down on the way back to Tennessee and that the victim drove to Kentucky to pick her and Mr. Phillips up.

The Defendant stated that after a few days, the victim threatened to report his SUV, bank card, and .25-caliber pistol stolen if his property were not returned. She said that Mr. Phillips became angry at the victim and feared returning to prison. The Defendant stated that Mr. Phillips wanted to have the victim's SUV towed to Tennessee but that it was too expensive.

The Defendant stated that on September 7, 2014, Mr. Phillips told her that if the victim were going to report the property stolen, "then something was going to have to

happen to him" and that Mr. Phillips said "we could strangle him, cut his throat or shoot him with his own gun to make it look like a suicide." The Defendant said that she did not respond to Mr. Phillips "because it made sense" and that "neither one of us wanted to go to jail." She stated that she and Mr. Phillips went to Walmart [*19]  to purchase ammunition for the victim's .25-caliber pistol, that the store did not have the ammunition, and that they went to a different Walmart. She said that she and Mr. Phillips bought ammunition for the pistol and gloves "in case [Mr. Phillips] had to kill [the victim] for reporting us." The Defendant stated that "at first, [she] thought [Mr. Phillips] might try to get rid of [her], too, since [she] knew everything."

The Defendant stated that she and Mr. Phillips went to the victim's house, used methamphetamine, and that she, Mr. Phillips, and the victim drove to the tool shed. She said that the victim "thought we were going to [Mr. Phillips's] house to get clothes and stuff we needed" for the trip to Kentucky to retrieve his SUV. The Defendant said that they started using methamphetamine and that "while we were getting high, [Mr. Phillips] kept going outside to get psyched up about killing [the victim]."

The Defendant stated that she and Mr. Phillips could not secure transportation to retrieve the victim's SUV, that Mr. Phillips said "he had to figure something out," and that Mr. Phillips realized the victim's .25-caliber pistol would not fire because of its firing pin. She stated [*20]  that she told Mr. Phillips "to give [her] a minute to figure something out before [Mr. Phillips] did anything" and that Mr. Phillips kept using methamphetamine to "get up the nerve to kill [the victim]." The Defendant said that Mr. Phillips said "he had to kill [the victim]," that she was "trying figure out another option," and that Mr. Phillips told her to go inside the tool shed with the victim.

The Defendant stated that Mr. Phillips told the victim that his Nissan truck could not make the drive to Kentucky to retrieve the victim's SUV and that Mr. Phillips "had a crazy look in his eyes." The Defendant said that Mr. Phillips went outside to speak with Ms. Winstead and that she sat in the floor in front of the victim. The Defendant said that "at some point without us hearing him, [Mr. Phillips] came back into the shed," that Mr. Phillips was standing behind a sheet hanging from the ceiling, and that she felt the victim "slump over" her back. She stated that she did not recall hearing a gunshot, that the victim's body fell on top of her, and that Mr. Phillips helped her stand. She said that Mr. Phillips pushed the victim's body into the chair, that blood was coming from the victim's [*21]  nose, and that "it looked like [the victim] was still breathing." The Defendant stated that Mr. Phillips placed the gun to the victim's right ear and pulled the trigger.

The Defendant stated that one of the victim's eyes was still open and that Mr. Phillips told her that "'to ensure culpable responsibility on [her] part,' [she] had to have [her] fingerprints on the gun and a shot had to be fired by [her]." The Defendant said that

she told Mr. Phillips the victim was already dead and that Mr. Phillips told the Defendant she "needed to shoot him anyway." She stated that she placed the gun to the victim's left ear and pulled the trigger but that the victim "didn't bleed at all."

The Defendant stated that Mr. Phillips told her to place the gun next to a bookshelf, that she started "panicking and screaming," and that Mr. Phillips placed his hand over the Defendant's mouth and told her to be quiet. The Defendant said that Mr. Phillips wrapped the victim in a tarp and that he backed up his Nissan truck to the front of the tool shed. The Defendant said that she began cleaning the shed with bleach and a scrub brush and that Mr. Phillips removed $23 in cash from the victim's wallet. The Defendant [*22]  stated that she threw the victim's wallet into the truck's bed, that Mr. Phillips loaded a bloody mattress in the truck, and that the truck was filled with bloody trash.

The Defendant stated that Ms. Winstead walked to the tool shed and that the Defendant told Ms. Winstead that Mr. Phillips was loading trash into the truck. The Defendant said that Ms. Winstead went in Ms. Raines's home and that Ms. Raines came outside to speak with Mr. Phillips. The Defendant stated that Mr. Phillips told Ms. Raines that he and the Defendant were going to the Defendant's apartment, that Ms. Raines went back in the house, and that Mr. Phillips said they had to leave.

The Defendant stated that Mr. Phillips "crushed" the victim's cell phone with a tire tool and threw the cell phone in his truck. The Defendant said that Mr. Phillips took her cell phone, that he removed the cell phone's battery, and that he placed clothes and a "shower bag" in the truck. She stated that she had blood on her clothes and pink flip-flops and that she placed her pink flip-flops in the bed of the truck. She said that she and Mr. Phillips left to "dump the mattress and trash and the victim's body in the yard."

The Defendant stated [*23]  that Mr. Phillips's truck broke down on the interstate and that she and Mr. Phillips walked to a nearby motel to rent a room. She stated that she and Mr. Phillips stayed at the motel for two days and that she and Mr. Phillips took a taxi to a hotel in Knoxville. She said that she and Mr. Phillips stayed at the hotel for two nights and that they took a taxi to a hotel in Pigeon Forge.

The Defendant stated that she told Mr. Phillips she was tired of running and that she would take responsibility for the homicide. She said that she and Mr. Phillips began arguing, that she went in the bathroom to take a bath, and that Mr. Phillips pushed her into the bathtub while she was trying to exit it. The Defendant said that Mr. Phillips "took [her] by [her] throat and pushed [her] down on the bed" and that she lost consciousness. The Defendant stated that when she regained consciousness, Mr. Phillips apologized. The Defendant said that "after [they] worked it out, [Mr. Phillips] told her that if he needed to kill [her], he would just [choke her] because he saw how easy it was."

The Defendant stated that she and Mr. Phillips knew "it was coming to an end" and that they continued using methamphetamine. [*24]  The Defendant said that she and Mr. Phillips spent the following night in the woods in Pigeon Forge. The Defendant stated that she and Mr. Phillips walked to Wendy's on September 13, 2014. The Defendant said that they sat at a table near three men who they thought were police officers. She said that Mr. Phillips told her to place a hairbrush under her shirt so it would appear she had a gun and that Mr. Phillips said, '"[I]f the cops came to get [them], [she] was to pull the hairbrush, and that would ensure [the cops] shooting [them]."' The Defendant stated that Mr. Phillips was going to "use the phone to look like a gun . . . so that the cops would kill him" and that she did not want the police to kill her.

The Defendant stated that she and Mr. Phillips took a photograph of themselves, that Mr. Phillips posted the photograph on Facebook, and that she and Mr. Phillips stayed at Wendy's for hours because they believed the police were outside. She said that Mr. Phillips began crying and apologizing to her, that she heard police officers instruct them to place their hands in the air, and that Mr. Phillips leaned across her body. She stated that she "grabbed [Mr. Phillips] to try to keep [*25]  him from grabbing the hairbrush" under her shirt, that she heard one gunshot, and that Mr. Phillips was shot in the head. The Defendant said that Mr. Phillips fell on her, that Mr. Phillips's face was bloody, and that a police officer "threw her to the ground."

Agent Elkins testified that after the Defendant signed the statement, she reenacted the homicide. The recording of the reenactment was introduced as an exhibit and played for the jury. The reenactment was consistent with the Defendant's written statement.

Agent Elkins testified that he and Detective Long traveled to Kentucky to search the victim's SUV and that he found food stamps in the glove compartment bearing the Defendant's name, address, and signature.

On cross-examination, Agent Elkins testified that the Defendant said during the interview that although she loved Mr. Phillips, she feared him and that she thought Mr. Phillips might "get rid of her too." Agent Elkins said that the Defendant spoke freely during the interview and that she provided many details while giving her statement. Agent Elkins said that the Defendant minimized her role in purchasing ammunition from Walmart. Agent Elkins did not know of any physical evidence [*26]  in the tool shed related to the victim's murder which contradicted the Defendant's statement. Agent Elkins believed the victim was still alive when the Defendant shot the victim.

Walmart employee Donnie Woodrum testified that he provided the September 7, 2014 store recording to the police, which was received as an exhibit and played for the jury. Mr. Woodrum narrated the recording and stated that the recording showed the

Defendant and Mr. Phillips in the sporting goods section and the Defendant's directing an employee to the ammunition case. On cross-examination, Mr. Woodrum testified that Mr. Phillips placed the ammunition on the counter, spoke with the employee, and paid cash for the ammunition and Nitrile gloves.

Wendy's employee Donna Townsend testified that she was working on September 13, 2014 and that she maintained Wendy's surveillance video recordings. A video recording was received as an exhibit and played for the jury. The recording reflected Mr. Phillips and the Defendant entering the restaurant, police officers entering the restaurant, Mr. Phillips being shot, and the Defendant being apprehended.

TBI Special Agent Teri Arney, an expert in firearm identification, testified [*27]  that the .25-caliber pistol found in the tool shed was inoperable. Agent Arney said that a fired cartridge casing was found inside a .22-caliber rifle and that another cartridge casing was discovered on the floor of the shed. Agent Arney stated that the bullets recovered during the victim's autopsy and from the shed were .22-caliber bullets but that she could not conclusively determine whether the bullets were fired from the rifle because of the damage to the bullets. On cross-examination, Agent Arney testified that another TBI agent analyzed the firearm evidence and that she verified the results of the analysis.

TBI Special Agent Miranda Gaddes, an expert in microanalysis, testified that the lens found wrapped in the tarp with the victim matched the sunglasses found in the Nissan truck.

Dr. Darinka Mileusnic-Polchan, an expert in forensic pathology, testified that she did not perform the victim's autopsy but that she supervised the examining physician. Dr. Mileusnic-Polchan said that when the forensic center received the victim, he was still wrapped in a tarp and was in the early stages of decomposition. Dr. Mileusnic-Polchan stated that blood was smeared on the victim's hair, clothing, [*28]  and face. Dr. Mileusnic-Polchan determined, based on the report, that gunshot wounds were the cause of the victim's death.

Dr. Mileusnic-Polchan testified that the gunshot wound to the back of the head severed the tissue connecting the brain and the spinal cord, that it would "be eventually a deadly wound," and that it was possible the victim's heart continued beating for several minutes before the victim died. She stated that the bullet which entered the victim's left ear was recovered from the right side of the skull, and she determined that the gunshot wound was fatal. She said that the bullet which entered the victim's right ear was not fatal because it "miraculously avoid[ed] the major vessels in the neck" and that the bullet exited through the front of the victim's neck. She could not determine the amount of time which elapsed between each gunshot or the sequence in which the shots occurred.

Dr. Mileusnic-Polchan testified that the victim suffered a "thick" bruise on the left side of his forehead under his scalp, that she discovered another minor bruise in the same area of the head, and that neither bruise was associated with the bullets entering the victim's ears. She stated that [*29]  the thick bruise was an "example of blunt force head trauma," which the victim could have suffered by falling forward and hitting the ground. She said that his heart was beating when he suffered the thick bruise on his forehead.

On cross-examination, Dr. Mileusnic-Polchan testified that the toxicology analysis showed the presence of methamphetamine in the victim's system. She stated that she reviewed the video recording of the Defendant's reenacting the murder and determined that the reenactment was consistent with the wounds. Dr. Mileusnic-Polchan said that the gunshot to the back of the victim's head was fatal, causing instant brain death, and that the victim's heart could have continued beating for "a couple of minutes." She stated that given the location of the gunshot wound, she would have expected to see the victim's eyes flutter, although, "[O]ne is already essentially in the process of dying." She stated that the victim may have appeared dead after the gunshot to the back of the head.

TBI Special Agent Kendall Stoner, an expert in DNA analysis, testified that she received buccal swabs from the Defendant and received blood samples from the victim and Mr. Phillips for analysis. [*30]  Agent Stoner stated that the .25-caliber pistol contained a mixture of DNA from at least three people and that the major contributor was Mr. Phillips. Agent Stoner said that only the victim's DNA was present on the daybed frame in the tool shed. Agent Stoner stated that the .22-caliber rifle contained a mixture of DNA from at least three people and that the Defendant and Mr. Phillips were the major contributors.

Agent Stoner testified that she analyzed the rubber gloves found in the Nissan truck and concluded that DNA of the major contributor on the inside and outside of the right glove matched Mr. Phillips's DNA and that the minor contributor matched the Defendant's DNA. Agent Stoner said that the outside of the left glove contained a mixture of DNA from Mr. Phillips and the Defendant and that the Defendant was the major contributor of DNA inside of the glove. Agent Stoner analyzed a cell phone and determined that the victim was the major DNA contributor. Agent Stoner said that the analysis of another pair of rubber gloves indicated the presence of DNA but the results were inconclusive. Agent Stoner stated that the victim's DNA was present on two pieces of upholstery.

Agent Stoner testified [*31]  that the analysis of a pair of pink flip-flops showed the victim as the major DNA contributor and that the victim and the Defendant were the major DNA contributors on a pair of orange flip-flops. Agent Stoner stated that the analysis of a pair of men's black sandals showed that the victim was the major DNA

contributor on the left and right sandals and that the victim, the Defendant, and Mr. Phillips were major DNA contributors on the top of the right sandal.

Upon this evidence, the jury convicted the Defendant of first degree premeditated murder and second degree murder. The trial court merged the convictions, and the Defendant was ordered to serve a life sentence. This appeal followed.

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V. Admissibility [*47]  of Evidence

The Defendant contends that the trial court erred by admitting a photograph of Mr. Phillips's alleged Facebook page and a photograph of a yellow sheet of notebook paper, which the parties refer to as a "ledger" in their appellate briefs, into evidence because they both contained hearsay and were not properly authenticated. The State responds that the court properly admitted both into evidence.

"Admission of evidence is entrusted to the sound discretion of the trial court, and a trial court's ruling on evidence will be disturbed only upon a clear showing of abuse of discretion." State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). Evidence must be first be authenticated before it can be admitted. Tennessee Rule of Evidence 901 states that authentication "is satisfied by evidence sufficient to the court to support a finding by the trier of fact that the matter in question is what its proponent claims." "A trial court has broad discretion regarding the admissibility of photographs." State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). "Before a photograph is admissible, it must be verified and authenticated by a knowledgeable witness." State v. Davidson, 509 S.W.3d 156, 198 (Tenn. 2016); see Banks 564 S.W.2d 949.

Hearsay "is 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." [*48]  Tenn. R. Evid. 801(c). A trial court's factual findings and credibility determinations relative to a hearsay issue are binding upon an appellate court unless the evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The determination of whether the statement in question is hearsay and whether a hearsay exception applies are questions of law that are reviewed de novo. Id.

A. Facebook Page Photograph

At the trial, the photograph of Mr. Phillips's purported Facebook page was admitted into evidence, after trial counsel objected. In a jury-out hearing, the following exchange occurred:

THE COURT: . . . [W]ould you outline your basis for introduction of this exhibit?

[THE STATE]: Your Honor, this is something that [Ms. Raines] sat in her own home, personally observed, recognized as [Mr. Phillips], that she recognized the [Defendant with Mr. Phillips]. Our next line of questioning would be - would proceed that based upon seeing this, she called law enforcement, alerted law enforcement to what had been posted. Law enforcement, in turn, was able to determine the location that this came from, and that's what alerted the law enforcement authorities in Pigeon Forge to begin looking. And your Honor, if I may direct your attention, slightly [*49]  above and behind them is a photograph that is identifiable as being in Wendy's . . . that's how [the police] determined that [the Defendant and Mr. Phillips] were at a Wendy's restaurant in Pigeon Forge. So, that photograph is a very critical link to everything that took place here including the arrest and apprehension of [the Defendant] at that location.

THE COURT: [Trial Counsel]?

[COUNSEL]: It's just not been . . . properly authenticated. You can't just take things off the Internet and enter them as evidence in Court. First of all, if they're trying to enter that as a photograph, the photograph itself has to be authenticated. Ms. Raines can't testify that that's a fair and accurate depiction of what happened there in Wendy's, she wasn't there at Wendy's.

. . . There are things that have to be done to authenticate things. The State hasn't done that, and they can't do that with this witness. We would object.

THE COURT: As I understand it, though, the State is not trying to authenticate that he's necessarily at Wendy's, he's trying to go through this witness - this is what [s]he saw - what [Ms. Raines] saw on the Internet. And based upon what she saw on the Internet, she made certain phone [*50]  calls, made certain assumptions, right or wrong. . . .

. . .

[COUNSEL]: That may be something [Ms. Raines] can testify to, your Honor, and it may be relevant, but that doesn't make that document admissible.

THE COURT: Okay. How is it inadmissible?

[COUNSEL]: It's not authenticated.

. . .

[THE STATE]: Your Honor, authentication comes in under Rule 901, and one of the ways that it can be authenticated is through testimony of a witness with knowledge that evidence is what it is claimed to be. It's 901(b)(1).

THE COURT: The authentication process is not that [Mr. Phillips] was in Wendy's it is what [Ms. Raines] sees. . . . I have no problem with [Ms. Raines] authenticat[ing] this as what she saw on the Internet. Is that what I heard?

[THE STATE]: Yes, your Honor[.] . . .

THE COURT: Okay. . . . I'm going to find, first of all, the first prong is met authentication is shown. . . .

. . .

[COUNSEL]: If the State's offering this picture for that purpose, I would ask that it be limited to that picture. I don't know that any of the rest of it is relevant. There's other pictures of [Mr. Phillips] on here, there is information about him, says he's a student at Roane State, lives in Caryville. I mean, if the State [*51]  wants to enter it - discuss those things, they need to enter it through other means, not just dump this document and let the -

THE COURT: What is the relevance of the other information on your purported exhibit?

. . .

[THE STATE]: Your Honor, that's what permits the authentication. If we isolated that one photograph, she could not look at it and identify it. It's her viewing that in the context of a Facebook post that says she recognizes that, that she specifically remembers seeing that on September 13. That's what she saw, the whole thing. . . .

THE COURT: But then we start getting into hearsay at some point. I mean, authentication is one point, then you roll into hearsay, and I'm not saying it is. I'm saying that we need to discuss the relevance, first of all, of that, and is there hearsay information on that that is offered to prove the truth of the matter asserted.

[COUNSEL]: There are statements, ["]I love you, please don't do this["] . .

. there's a statement, ["]when is the funeral["] . . .

. . .

THE COURT: Well, you know, rather than get into a huge intellectual exercise on this thing, let's get it back to is it properly authenticated, yes. Is it relevant, we're still talking about [*52]  that. Is - are there hearsay items on here[?] You mentioned the [statement] . . . ["]I love you, please don't do this["]. I don't see that as being offered to prove the truth of the matter of anything. And neither is the, ["]when funeral["]. The question is almost never hearsay. I'm just [going to] make a call on this, and I'm [going to] admit the - I'm [going to] admit the introduction of this photograph provided this witness is the proponent of the exhibit and - period.

The record supports the trial court's determination that the photograph of Mr. Phillips's purported Facebook page did not contain hearsay. Ms. Raines testified that she saw a photograph of the Defendant and Mr. Phillips on Mr. Phillips's Facebook page on September 13, 2014. The photograph introduced by the State was a depiction of Mr. Phillips's purported Facebook page, which included a photograph of the Defendant and Mr. Phillips, additional comments under the photograph, and other photographs and general information that were not relevant in this case. The comments and general information that were visible on the photograph of the purported Facebook page were not offered to "prove the truth of the matter asserted." [*53]  See Tenn. R. Evid. 801(c). The photograph was admitted to show what caused Ms. Raines to call the police and how the Defendant and Mr. Phillips were found. Ms. Raines's testimony properly authenticated the photograph as a depiction of the Defendant and Mr. Phillips. We decline to review whether Ms. Raines's testimony properly authenticated Mr. Phillips's purported Facebook page. The Defendant is not entitled to relief on this basis.

***

 

End of Document

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