State v. Wilkerson and the Authentication of Electronic Evidence

I recently heard a police detective say that the internet was the worst thing that ever happened to law enforcement.  He explained that before advent of the internet, criminals had to leave their homes to hook up with other criminals. That movement could easily be tracked by the police. These days conspiracies can be hatched and connections made without anyone leaving the comfort of his den and, correspondingly, without being observed by the police. The detective had a point. But if modern technology and its trail of connections present problems for law enforcement, they create a field of dreams for litigators. Family law attorneys seeking to prove infidelity can mine the timelines of Facebook.  Criminal defense attorneys can cross-examine witnesses about their wall posts and tweets. And prosecutors arguably benefit the most from the treasure-trove of electronic proof, which the State often uncovers in the form of incriminating instant messages, emails, and texts.

It is somewhat surprising given the prevalence of electronic evidence that there are so few North Carolina appellate opinions addressing its admissibility. Several years ago, the court of appeals in State v. Taylor, 178 N.C. App. 395, 413-14 (2006), upheld the admission of text messages sent to and from the victim’s phone as properly authenticated. See N.C. Gen. Stat. § 8C-1, Rule 901(a) (“The requirement of authentication 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.”). In Taylor, witnesses from the phone company that provided the victim’s service testified about how such messages were sent and how these particular messages were stored and retrieved.  The court deemed this evidence sufficient to authenticate the print out of phone company records as text messages sent to and from the victim’s assigned number. The Taylor court further noted that the text messages, which identified the victim’s car and included his first name, contained sufficient circumstantial evidence to show that the victim was the person who sent and received them. The court did not consider it necessary to show that the defendant was the person with whom the victim was corresponding. For this reason, while Taylor is instructive in terms of authenticating print outs of phone messages, the case fails to provide a complete road-map for the introduction of such evidence in the typical criminal case when the relevancy of the writing hinges on it having been written by the defendant. The court of appeals’ unpublished opinion in State v. Williams, 191 N.C. App. 254 (2008) (unpublished), is of some help in that regard.  In Williams, the court determined that the content of instant messages exchanged between the defendant and the minor victim, which contained details about sexual acts that only the two of them knew, was sufficient to support a finding that the messages were written by the defendant.

Fortunately for those desirous of further direction, the court of appeals’ opinion yesterday in State v. Wilkerson, __ N.C. App. __, __ S.E.2d. ___ (October 16, 2012), adds to the state’s jurisprudence and fills in the contours of the road map to admissibility.

The defendant in Wilkerson was charged with felonious larceny after breaking and entering and felonious possession of stolen goods arising from a break-in at a home in Hoke County. A neighbor reported seeing defendant’s car on the street at the time of the break-in.  A police detective followed that lead to the defendant’s residence the next day. The defendant consented to a search of his car, and the detective found several of the stolen items in the trunk.  In addition to this evidence, the State introduced at trial a text message sent from defendant’s phone on the day of the break-in, which read: “I got a 64 inch flat Samsung.”  (The homeowner reported that a 52-inch Samsung television had been taken.)

The relevancy of the text message hinged, of course, on its having been sent by the defendant.  To establish its authenticity as well as the whereabouts of the defendant on the day of the break-in, the State called as a witness a custodian of records for T-Mobile Wireless, the company that provided defendant’s phone services.  The custodian provided “call details records” for the phone that was seized from the defendant the day after the break-ins. She testified that a number of calls were made from or received by the defendant’s phone on the day of the crime, starting at 10:56 a.m. and concluding at 1:24 p.m. She explained the process involved in transmitting cellular signals: calls made or received in a given area are transmitted through the closest cell tower that is not busy. She provided the times, length, and tower locations of each call.  The detective who investigated the break-ins then testified that he visited each cell tower and plotted its location on a map according to the time the call was received by the tower. The calls began and ended in Cumberland County, where the defendant lived, and followed a path to and from Hoke County.  The calls hit towers less than two miles away from the victim’s home.

The custodian also testified that a text message was sent from the defendant’s phone at 10:45 a.m. Pacific Daylight Time.  (T-Mobile’s records are housed in Seattle, and apparently reflect West Coast time.) The detective testified that after he found the stolen items in the trunk of the defendant’s car, he took the defendant’s phone from the defendant’s pocket and searched it.  He found the incriminating text message in the “sent” folder and noted that it had been sent to a number labeled “work.” On the phone itself, the message was time stamped at 2:45 p.m. on the day of the break-in.

Relying on Taylor, the defendant in Wilkerson argued that because he was not specifically named as the sender in the text message, it was not authenticated as a text message that he sent. The court of appeals rejected this argument, noting that Taylor identified only one circumstance that could satisfy the requirements of Rule 901.  The court recited several methods of acceptable identification from the nonexclusive list set forth in Rule 901(b): (1) testimony from a knowledgeable witness that a matter is what it is claimed to be; (2) appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances; and (3) evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

The Wilkerson court concluded that the State presented substantial circumstantial evidence tending to show that Defendant was the sender of the text message at issue:  Defendant’s car was spotted at the scene of the crime.  The neighbor who reported seeing the car said the driver was using a cell phone.  The day after the break-in, some of the stolen property was found in the trunk of the defendant’s car, which was parked in front of defendant’s house. The phone was taken from the defendant’s person.  Several call were made and received from defendant’s phone around the time of the crime.  And the text message itself referred to an item that was stolen, namely a large, flat-screen Samsung television.

Furthermore, the court noted that, similar to the proof proffered in Taylor, the State’s witnesses in Wilkerson established the time of the calls placed, the process employed, and a path of transit tracking the phone from the area of the defendant’s home to the area of the victim’s home and back.

Finally, the court rejected the defendant’s contention that inconsistent evidence about the timing of the message resulting from the difference in time zones between where the messages were sent and where the records were stored rendered the text message evidence inadmissible. The court characterized these as issues of “witness credibility” for the trial court to weigh and found nothing to indicate the trial court abused its discretion in the weighing process.

Readers, if you’ve recently navigated the process of authenticating electronic evidence, please share any wisdom you acquired along the way.