By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
In a 2015 article captioned “Authenticating Evidence Found On Social Media and In Cell Phones – It’s Complicated” we discussed a number of appellate opinions dealing with the introduction of cell phone evidence. Because cell phone evidence is used in many of our current cases, we are going to revisit these issues with an update discussing additional cases decided since our previous article. The October, 2015 article is available for review by clicking here. (2015 Article).
The cases which all counsel should have at the ready when seeking to admit or exclude the cell phone evidence are the following:
Sykes v State, November 18, 2021, —A.3d—-(2021) 2021 WL 5366047
State v. Sample, 468 Md. 560 (2020)
Baker v. State, 223 Md. App. 750 (2015)
Sublet v. State, 442 Md. 632 (2015)
Griffin v. State, 419 Md. 343 (2011)
Garner v. State, 414 Md. 372 (2010)
Carpenter v. State, 196 Md. App. 212 (2010)
Dickens v. State, 175 Md. App. 231 (2007)
These cases review recurring issues including authentication, proof of device ownership, identity of the author of text messages, relevancy, balancing of probative value versus prejudicial effect, hearsay, and expert testimony.
Since our 2015 article, the appellate courts have issued opinions in Sykes, Sample and Baker.
Sample v. State
In Sample, the defendant contended that Facebook Business Records were inadmissible because no witness would testify that the records pertained to Sample. Sample argued that extrinsic evidence is necessary to connect social media evidence with the person to whom the social media profile allegedly belongs. Sample asserted that the State needed to prove that Sample had exclusive access to the SoLo Haze Facebook profile, and that he used it to unfriend the claude.mayo.5 Facebook profile.
The State argued that the Facebook business records would prove that Sample and Mayo had been friends on Facebook, and that, after Mayo died, Sample unfriended him on Facebook. Specifically, the State argued there were sufficient identifying characteristics in the business records including the name “SoLo Haze,” the e-mail address containing “mrsample” in the name, and the profile listing connections to Baltimore area schools, and therefore, a reasonable juror could find that the SoLo Haze profile belonged to Sample.
The Court of Appeals (COA) held that the circuit court did not abuse its discretion in admitting the Facebook-related evidence, as there was sufficient circumstantial evidence under Maryland Rule 5-901(b)(4) for a reasonable juror to find that the SoLo Haze Facebook profile belonged to Sample, that the claude.mayo.5 Facebook profile belonged to Mayo, and that Sample used the SoLo Haze profile to unfriend the claude.mayo.5 profile.
Maryland Rule 5-901(a) states that a party can sufficiently authenticate a piece of evidence through “evidence [that is] sufficient to support a finding that the matter in question is what its proponent claims.” Previously in Sublet, the COA adopted the “reasonable juror” test from federal case law for authentication of social media evidence. Although the COA did not mention the term “preponderance of the evidence” in its discussion in Sublet, its adoption of the “reasonable juror” test necessarily means that for a trial court to admit social media evidence, there must be sufficient evidence for a reasonable juror to find that the social media evidence is authentic by a preponderance of the evidence.
Baker v. State
In Baker v. State, Trooper Flaugher obtained a phone number from a rape victim’s cell phone that she identified as the number of the man who raped her. Trooper Flaugher then obtained records from AT&T identifying that number as belonging to Baker. The call records reflected that on the evening of the rape, there were several calls from the number he identified with Baker to the rape victim’s phone number.
At trial, the State did not call the custodian of records from AT&T to introduce the records, nor did the State give expert notice that it would seek to designate the investigating officer as an expert to interpret the phone records. The circuit court ruled that the officer could not testify about the location of the pings from the cell phone, but that he could discuss the calls made back and forth, and the records could be introduced. Trooper Flaugher testified that the phone number that the victim identified as the number of the man who raped her belonged to Baker and that the records showed there were several calls to the victim’s number from Baker’s phone on the night of the rape. The records were then admitted into evidence.
This was first occasion in which the Court of Special Appeals (COSA) addressed whether computer records generally, or call records specifically, constituted hearsay. The COSA was persuaded that computer-generated records generally do not constitute hearsay and it concluded that when records are entirely self-generated by the internal operations of the computer, they do not implicate the hearsay rule because they do not constitute a statement of a “person.” In that situation, the admissibility of such data “should be determined on the basis of the reliability and accuracy of the process used to create and obtain the data.”
While the COSA agreed that the records did not constitute hearsay, there was no evidence presented regarding how the call records were produced. As a result, the COSA was not able to conclude that the admission of the call logs was proper.
Other records that were likely not computer-generated were the portions that supported the trooper’s testimony that the number that called the victim’s phone the night of the rape belonged to Baker. The COSA noted that it was more likely that it was data entered by a person. Such evidence that is generated by a person has been held to be hearsay and thus was inadmissible.
On the record before them, the COSA held that in the absence of testimony from the custodian of records, or any 5-902(b) certification, the circuit court erred in admitting the call record.
Sykes v. State
The COSA opinion begins by reminding that Maryland Rule 5-901(a) requires authentication of evidence, including electronically stored evidence, as a condition precedent to its admissibility. However, “the burden of proof for authentication is slight, and the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.” For electronic evidence, the court will use the “reasonable juror” test and ask whether a reasonable juror might find it more likely than not that the evidence is what it purports to be – a preponderance of the evidence standard.
Rule 5-901(b) sets forth a non-exhaustive list of the manners in which evidence may be authenticated. Relevant here, evidence may be authenticated directly through testimony of a witness “with knowledge that the offered evidence is what it is claimed to be,” or circumstantially, “such as [through] appearance, contents, substance, internal patterns, location, or other distinctive characteristics[.]” See Md. Rule 5-901(b)(1), (4).
Sykes contended that the circuit court erred in admitting the text messages in his case in three respects: (i) the phone and outgoing messages were not authenticated; (ii) the contents of the incoming and outgoing text messages were inadmissible hearsay; and (iii) the text messages were irrelevant and highly prejudicial.
Ownership of the phone
The COSA observed that the collective circumstances in Sykes demonstrate that the cell phone belonged to Sykes. The State introduced direct evidence that the phone belonged to Sykes through the testimony of two witnesses. At trial, both Officer Westerfield and Officer Chinn testified to seeing Sykes use the cell phone at the time of his arrest. Officer Chinn further testified that he saw Sykes take the phone from his pocket, unlock it, and place a phone call. Such possession and use are consistent with ownership. The officers’ testimony provided sufficient evidence for the circuit court to conclude that a reasonable juror could find that the phone was what the State purported it to be—a cell phone belonging to Sykes.
Who sent the text messages?
Sykes presented a number of arguments that the evidence presented was insufficient to authenticate the outgoing messages. He first argued that no testimony from a witness with personal knowledge was presented, as none of the text messages that were offered at trial were alleged to have been sent in the officers’ presence. However, personal knowledge is just one method by which evidence may be authenticated pursuant to Maryland Rule 5-901.
Sykes also maintained that the State failed to exclude the possibility that the phone belonged to someone else, for example by obtaining records of the account holder. The COSA found that such contentions were also without merit, as they went to the weight, not the admissibility, of the evidence.
For admissibility purposes, the State was not required to disprove all other possibilities, nor was it required to prove authenticity with absolute certainty. Rather, it need prove “only that there was sufficient evidence for a reasonable juror to find by preponderance of evidence” that Sykes was responsible for the text messages.
The COSA concluded that a reasonable juror could find it more likely than not that the outgoing text messages extracted from that cell phone were sent by Sykes. After reviewing the analysis in Sample, the COSA found that the content of the drug-related text messages was also consistent with the large quantity of heroin found during the arrest of Sykes. The State called an expert witness who testified that the terminology used in the text messages was consistent with heroin transactions. Moreover, the most recent incoming text message discussing drug transactions was received the day before Sykes’s arrest and is marked: “Read.” Thus, the collective circumstances, coupled with the evidence of Sykes’s control and possession of the cell phone, lent support to the circuit court’s conclusion that a juror could find more likely than not that Sykes authored the text messages. There was sufficient evidence to conclude that a reasonable juror could find, by preponderance of the evidence, that Sykes owned the cell phone. Accordingly, the COSA found no error in the court’s determination of authenticity. (citing Darling v. State, 232 Md. App. 430, 456 (2011) (“[O]nce a prima facie showing of authenticity is made, the ultimate question of authenticity is left to the jury.”).
Sykes then argued that the “marginal relevance to an element of the offense charged” contrasted with the “distinct potential for working unfair prejudice” rendered the text messages inadmissible. The trial court admitted a total of 691 text messages, only a fraction of which constitute drug-related texts.
As to relevancy, Sykes argued that the text messages discussing drug transactions were irrelevant because they could have been consistent with other drugs that were not heroin and that the expert testimony interpreting such text messages acknowledged as much. Sykes also posited that the drug-related text messages received closest to the time of arrest were received the day before, and the user of the phone did not respond to those texts. Therefore, Sykes argued, the messages did not demonstrate an intent to distribute.
The COSA then reminded that all relevant evidence is admissible. Md. Rule 5-402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. Sykes was charged with possession of a CDS with intent to distribute. Sergeant Crouch testified that, in his expert opinion, the number of texts from customers soliciting drugs stood out as a significant indicator that the drugs found in Sykes’s possession were for commercial use rather than personal use, although he could not say for certain whether the drug transactions were for heroin.
The COSA then found that the number of drug-related text messages were relevant in that they made it more probable that Sykes both possessed the 84 packages of heroin and intended to distribute them. Moreover, whether the text messages are consistent with other drugs, in addition to heroin, does not render the text messages irrelevant, as they still made it more likely that Sykes had the intent to distribute the drugs found in his possession. When viewing the drug-related text messages in context with Sergeant Crouch’s testimony interpreting the texts, as well as the other evidence presented at trial, the COSA concluded that it was apparent these messages cleared the relevancy threshold for admission.
In contrast, the remaining non-drug-related text messages were not relevant to the case. For example, text messages stated “wyd,” “ok,” and others discussed paying bills and running errands. Such texts did not make any fact that is of consequence more or less probable, and the COSA held that the circuit court erred in admitting these texts. However, it further held that it was satisfied beyond a reasonable doubt that the error was harmless, as the irrelevant texts in no way contributed to the guilty verdict.
Probative Value vs Prejudicial Effect
The COSA began its balancing analysis by noting that although evidence may be relevant, it nonetheless may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Md. Rule 5-403. However, “[e]vidence is never excluded merely because it is prejudicial.” Nor is the evidence excluded because the danger of prejudice simply outweighs the probative value. It must, “as expressly directed by Rule 5-403, do so substantially.” “[U]nder some circumstances, where intent is legitimately an issue in the case, and where by reason of similarity of conduct or temporal proximity, or both, evidence of other bad acts may possess a probative value that outweighs the potential for unfair prejudice, the evidence may be admissible.”
The text messages were introduced during Sergeant Crouch’s expert testimony interpreting the texts in the context of whether the drugs were for personal or commercial use. The texts, aided by the expert testimony, were both probative as to both possession of the heroin and intent to distribute the heroin. Intent was “legitimately an issue” in the Sykes case. Sykes acknowledged as much stating that the text messages were “a key component of the State’s case for mens rea.”
Moreover, “prejudicial evidence is not excluded under Rule 5-403 only because it hurts one party’s case.” Instead, the rule mandates that the prejudice must be “unfair,” meaning it “tends to have some adverse effect … beyond tending to prove the fact or issue that justified its admission.” Though the text messages describing drug transactions were prejudicial to Sykes, they bore a specific nexus to an element of the charged crime: intent to distribute. As such, the COSA held that the admission of the text messages did not have an adverse effect beyond tending to prove the intent element. The court held that the circuit court did not err in admitting the drug-related text messages.
With respect to hearsay, the issues were framed as follows: “[t]here are two threshold questions when a hearsay objection is raised: (1) whether the declaration at issue is a ‘statement,’ and (2) whether it is offered for the truth of the matter asserted.”
There were incoming texts requesting specified amounts of drugs and outgoing texts responding to those requests such as: “I need 5 more;” “Can u thro 1 in so I can make something please that’s 230 already;” “I need like 2 ….50;” and “This B ock bring me another 8th.” In determining whether the content of these text messages constituted hearsay, the COSA relied upon the holding in Garner v. State, 414 Md. 372 (2010), in which the COA addressed whether statements made over the phone in an attempt to buy drugs constituted inadmissible hearsay. In Garner, the COA upheld the circuit court’s ruling that the testimony describing the phone call did not violate the rule against hearsay. In comparing drug-transaction cases with illegal betting cases, the Garner opinion stated that “[w]hen a telephone is used to receive illegal wagers or to receive orders called in by persons who wish to purchase a controlled dangerous substance, the telephone becomes an instrumentality of the crime.” The purchase of illegal drugs is a form of a contract, where there is offer and acceptance, so the “telephoned words of the … would-be-purchaser are verbal parts of acts.
In Sykes, the COSA held that the text messages did not violate the hearsay rule and the drug-related text messages constituted verbal parts of a drug transaction, with the cell phone being an instrumentality of the crime. The COSA continued stating that the text messages were offered not to prove that the specific drug transactions in the texts occurred, as Sykes posits, but rather that Sykes was in possession of the cell phone which numerous persons frequently texted in attempts to purchase drugs, and from which responsive texts emanated. The text messages had legal significance to prove that drug transactions were discussed, regardless of whether the offers were accurate or genuine. As in Garner, the COSA stated these text messages constitute verbal acts, and the “performative quality” of these acts justifies non-hearsay treatment because the texts were admissible to show that drugs were sold as a result of the text being received.
The COSA finished its analysis of the issue by observing that the drug-related text messages here—those not falling within the verbal acts doctrine—did not depend on the truth of any implied factual proposition of the declarant, rather, they were offered as “probative circumstantial” evidence. Taking Sykes’s example, it noted that the text message discussing the weight of the two packages was not offered to prove that Sykes sold two packages of controlled substances, where one package compensated for the other, but was offered to prove the very fact that the statement was made. The COSA reviewed how, at the pre-trial motions hearing, the State had indicated that it would be introducing those drug-related text messages through Sergeant Crouch’s testimony to explain why those conversations are drug related. According to the State’s proffered use, the declarant’s belief in the truth of the statements was irrelevant. Whether any implied assertion was “sincerely and accurately stated” would have no bearing on the purpose for which they were introduced: to demonstrate that the phone in Sykes’s possession engaged in drug-related conversations. The COSA held that these drug-related text messages were not offered for the truth of the assertions, and, therefore, constituted non-hearsay.
Expert Opinion Testimony
Sykes contended that expert testimony was improperly admitted because the State failed to comply with Rule 4-263(d)(8). The COSA rejected Sykes’ contention, without necessarily concluding that the State’s notice complied with the Rule. Rather, it faulted Sykes for his failure to properly address the issue at the trial level.
An expert notification was sent in June, 2017 indicating that Sergeant Crouch was to be offered as an expert in drug forensics and “[m]ay testify about the packaging, sales, [and] street value of controlled dangerous substances as well as offering [an] opinion as to whether the factual circumstances presented are consistent with personal use or distribution.” The parties also agreed that, in response to Sykes’s initial contention that the disclosure was inadequate, the State informed Sykes that Sergeant Crouch “would not be rendering any opinions until he was within court.”
The information allegedly omitted from the expert notice was the substance of Sergeant Crouch’s findings and the grounds for his opinions because at the time the expert notice was provided, Sergeant Crouch had not yet reviewed the evidence or rendered an opinion. Sykes was nonetheless aware that Sergeant Crouch was an expert in narcotics investigations and that he would eventually render an opinion based on the trial evidence as to whether the heroin seized from Sykes was for distribution or personal use. Based on this information, Sykes could have generally anticipated Sergeant Crouch’s testimony, and Sykes’s trial counsel stated as much during the hearing on the motion in limine. Therefore, Sykes failed to explain how the expert notice prejudiced his defense. Further, if Sykes believe that the State was required to disclose more information about Sergeant Crouch’s training or the substance of his opinion, he could have filed a motion to compel under Maryland Rule 2-432(B). However, he failed to do so and he similarly did not request a continuance for the purported discovery violation. As a result, the COSA found no abuse of discretion in the trial court’s decision to allow Sergeant Crouch’s expert opinion testimony.
This part of the opinion should remind us – when faced with the initial boilerplate expert notice so commonly filed by the State in these cases – it is not enough to simply file an initial objection to the sufficiency of the notice. When the State fails to respond to the objection with a more specific notice that complies with the demands of the Rule, a motion to compel is required to preserve the issue. If the matter is still not resolved satisfactorily, then one must be prepared to articulate the specific prejudice to the defendant from the deficient notice and, if necessary, request a continuance to be able to properly respond to a late notice. Failure to be persistent in making, repeating, and preserving the expert notice objection may, as in Sykes, doom the issue on appeal.