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High court will consider if ‘defriending’ goes to jury

The Court of Appeals builiding in Annapolis. MF-D 9/20/04.

The Court of Appeals building in Annapolis.

Maryland’s top court will join a social network and evidentiary rules when it considers whether a jury was properly permitted to hear damning evidence that a Facebook profile owner “defriended” his alleged accomplice just hours after that person was killed trying to rob a Towson liquor store.

The Court of Appeals on Wednesday agreed to review a lower court decision that a judge improperly admitted into evidence Hayes Sample’s alleged defriending of Claude Mayo, an online snub that proved critical to the state’s ability to link Sample to Mayo and secure Sample’s conviction for attempted armed robbery.

The intermediate Court of Special Appeals overturned Sample’s conviction in a reported decision, saying the defriending should not have been introduced at trial because the state had not provided proof, or “authenticated,” that Sample was the person who had defriended Mayo.

The Court of Special Appeals held that someone in Hayes’ social circle could have gone on his page to defriend Mayo, much as a third-party must have accessed Mayo’s page to provide details of his memorial service.

Appealing that decision to the Court of Appeals, Assistant Maryland Attorney General Peter R. Naugle said the issue of whether Sample defriended Mayo was properly admitted at trial, where a “reasonable” jury could review the evidence and reach that conclusion.

“The notion that someone in Sample’s social circle could have (for some reason) accessed the Facebook profile to defriend May, the day after the attempted robbery and before Sample had been identified as the second suspect, is a bizarre theoretical scenario that the intermediate court created out of whole cloth,” Naugle wrote in the state’s successful request for high-court review.

“More fundamentally, the mere abstract possibility of an alternative explanation should not bar any ‘reasonable juror’ from concluding that it was Sample himself who took the action,” Naugle added. “Indeed, it would be the unusual juror who would not draw that conclusion.”

Sample is being represented by the Maryland public defender’s office.

The Court of Appeals will hear arguments in the case in February, according to its clerk’s office. The court is expected to render its decision by Aug. 31 in State of Maryland v. Hayes Sample, No. 54, September Term 2019.

A clerk at Towson Wines & Spirits shot and killed Mayo during his botched two-man robbery of the store on Dec. 7, 2015. The second man escaped but was later identified, according to the prosecution, as Sample via surveillance footage and phone records.

Investigators also accessed Sample’s Facebook page, which the state said revealed he had defriended Mayo the day after the robbery attempt.

Prosecutors sought to introduce the defriending at trial to show Sample’s consciousness of guilt and to rebut his pretrial statements that he did not know Mayo.

Sample’s defense counsel sought to suppress the defriending, saying the state had failed to show Sample had exclusive access to his profile page. But the Baltimore County Circuit Court judge said the evidence should be introduced because a reasonable juror could conclude that Sample did the defriending.

In addition to attempted armed robbery, Sample was found guilty of first-degree assault, use of a firearm in a violent crime and illegal possession of a firearm. He was sentenced to an aggregate term of 50 years in prison.

Sample then sought review by the Court of Special Appeals.

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