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Law Digest — Court of Appeals, Court of Special Appeals — May 28, 2020

Maryland Court of Appeals

Evidence; Authentication: At the defendant’s trial for attempted robbery and related offenses, the trial court did not abuse its discretion in admitting Facebook-related evidence where there was sufficient circumstantial evidence under Maryland Rule 5-901(b)(4) for a reasonable juror to find that the Facebook profiles in question belonged to the defendant and his alleged accomplice and that the defendant “unfriended” the alleged accomplice on Facebook day after attempted armed robbery, in which the accomplice was fatally shot. State of Maryland v. Sample, No. 54, Sept. Term, 2019.

Maryland Court of Special Appeals

Evidence; Other crimes, wrongs, or acts: At the defendant’s trial for the murder of his father, the trial court did not err in admitting evidence of a violent altercation between the defendant and his father that took place approximately two months before the murder under an exception to the general prohibition of admission of evidence of “other crimes” in Maryland Rule 5-404(b) because this evidence had special relevance in establishing motive, intent, identity, and consciousness of guilt; was supported by clear and convincing evidence; and, though prejudicial, was not unfairly so. Vaise v. State, No. 2205, Sept. Term, 2018.

Maryland Court of Appeals

Evidence

Authentication

BOTTOM LINE: At the defendant’s trial for attempted robbery and related offenses, the trial court did not abuse its discretion in admitting Facebook-related evidence where there was sufficient circumstantial evidence under Maryland Rule 5-901(b)(4) for a reasonable juror to find that the Facebook profiles in question belonged to the defendant and his alleged accomplice and that the defendant “unfriended” the alleged accomplice on Facebook day after attempted armed robbery, in which the accomplice was fatally shot.

CASE: State of Maryland v. Sample, No. 54, Sept. Term, 2019 (filed March 31, 2020) (Judges Barbera, McDonald, WATTS, Hotten, Getty, Booth  & Biran).

FACTS: Hayes Sample was charged in the circuit court with attempted robbery with a dangerous weapon and other crimes. At trial, the State offered evidence that Sample and his accomplice, Claude Mayo, using guns, attempted to rob a liquor store. The liquor store owner also had a gun, which he used to shoot Mayo, who died a short distance outside the liquor store. Sample fled the scene.

While investigating the attempted armed robbery, a detective searched Facebook for a profile associated with the name Claude Mayo. The detective ultimately requested and obtained from Facebook “Facebook Business Records” regarding Facebook profiles for “claude.mayo.5” and “SoLo Haze,” as well as a “Certificate of Authenticity of Domestic Records of Regularly Conducted Activity.” The Facebook Business Records for the SoLo Haze Facebook profile indicated that the e-mail address “mrsample2015@gmail.com” was registered to that profile.

The Facebook profile for SoLo Haze identified Baltimore as “current city” and listed Edmondson-Westside High School and Towson University as “connections” of the user. The Facebook user associate with the “SoLo Haze” profile was “friends” with Facebook user “Skky DaLimit Lynn.” Prior to trial, Sample’s counsel advised the circuit court that a Skkyla Lynn would be called as a defense witness.

The Facebook Business Records for the claude.mayo.5 Facebook profile also listed Baltimore as the “current city,” and listed Patterson High School as “connections” of the user. Facebook user claude.mayo.5 was “friends” with Facebook user “Shantell Richardson,” the name of Mayo’s mother. Significantly, the Facebook Business Records indicated that, the day after Sample and Mayo allegedly attempted to rob the liquor store and Mayo was fatally shot, Facebook user SoLo Haze “unfriended” claude.mayo.5.

In the circuit court, Sample filed a motion in limine contending that the State would not be able to sufficiently authenticate the Facebook Business Records. The circuit court denied the motion. At trial, over Sample’s counsel’s objection, the prosecutor elicited testimony from the detective concerning information from the Facebook Business Records, including the circumstance that the Facebook Business Records regarding the SoLo Haze Facebook profile showed that, the day after the attempted armed robbery, claude.mayo.5 had been “unfriended.”

The jury found Sample guilty of attempted robbery with a dangerous weapon and other crimes. Sample appealed to the Court of Special Appeals, which reversed the convictions and remanded the case for a new trial, reasoning that the circuit court abused its discretion in admitting the Facebook-related testimony. The State appealed to the Court of Appeals, which vacated the judgment of the circuit court and remanded the case with instructions to address the remaining questions raised on appeal.

LAW: The State argued that the circuit court determined, and the Court of Special Appeals did not dispute, that a reasonable juror could have found that the SoLo Haze Facebook profile belonged to Sample. The State contended that the theory of the Court of Special Appeals that another person in Sample’s social circle might have used the SoLo Haze profile to “unfriend” the Facebook user claude.mayo.5 was not grounded in evidence. Without more, the State asserted, the evidence that the SoLo Haze profile belonged to Sample would allow a reasonable juror to find that he used that profile to “unfriend” Facebook user claude.mayo.5.

Under Maryland Rule 5-901, 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. Testimony of a witness with knowledge that the offered evidence is what it is claimed to be is one form of authentication satisfying the requirements of the Rule. Id. Another appropriate form of authentication is circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be. Id. In Sublet v. State, the Court of Appeals concluded that, to authenticate social media evidence, there must be proof from which a reasonable juror could find that it is more likely than not that evidence is what proponent purports it to be. Sublet v. State, 442 Md. 632, 678 (2015).

In Griffin v. State, 419 Md. 343, 357 (2011), the Court of Appeals held that a trial court abused its discretion in admitting alleged printouts of the defendant’s girlfriend’s MySpace profile, which had not been sufficiently authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4) as belonging to the girlfriend. The Court cautioned, however, that the holding did not mean that printouts from social networking websites should never be admitted, and suggested a number of options for authenticating such evidence. Id. at 363. One option suggested by the Court was to “obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.” Id. at 364.

The “reasonable juror” test is derived from Federal Rule of Evidence 104(b), which states that when the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The Supreme Court has explained that, under Federal Rule of Evidence 104(b), the question is whether a jury could reasonably find the conditional fact by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681, 690 (1988) In other words, under Federal Rule of Evidence 104(b), the issue is whether a reasonable jury could find the conditional fact by a preponderance of the evidence. United States v. Balthazard, 360 F.3d 309, 313 (1st Cir. 2004).

By adopting the “reasonable juror” test in Sublet, the Court of Appeals concurrently adopted the “preponderance of the evidence” standard of proof that goes with the test. Thus, for a trial court to admit social media evidence, there must be sufficient evidence for a reasonable juror to find that the social media is authentic by a “preponderance of the evidence,” which means “more likely than not.” Pete v. State, 384 Md. 47, 60 n.15 (2004). Simply stated, where there is an issue as to authenticating social media evidence, the question is whether there is sufficient evidence for a reasonable juror to find that it is more likely than not that the social media evidence is what the proponent of the evidence purports it to be. Sublet, 442 Md. at 678.

Where a party attempts to authenticate social media evidence through circumstantial evidence under Maryland Rule 5-901(b)(4), the inquiry is context-specific. The presence or absence of certain biographical information – such as the relevant person’s date of birth – is not necessarily dispositive. Sublet, 442 Md. at 676-77. When attempting to sufficiently authenticate social media evidence through circumstantial evidence under Maryland Rule 5-901(b)(4), the party need not rule out all possibilities that are inconsistent with authenticity, or prove beyond any doubt that the social media evidence is what it purports to be. Id. at 666.

In the present case, there was sufficient circumstantial evidence under Maryland Rule 5-901(b)(4) for the circuit court to conclude that a reasonable juror could find that it was more likely than not that the SoLo Haze Facebook profile belonged to Sample. The SoLo Haze profile contained sufficient distinctive characteristics from which the circuit court could determine that a reasonable juror could find that Sample was the owner of the profile. See Sublet, 442 Md. at 674. Indeed, Sample himself acknowledged that there was sufficient evidence for a reasonable juror to conclude that the SoLo Haze profile belonged to him; he merely contended that his ownership of the account did not establish that he used the account to “unfriend” Claude Mayo.

There was likewise sufficient circumstantial evidence under Maryland Rule 5-901(b)(4) for the circuit court to conclude that a reasonable juror could find it was more likely than not that the claude.mayo.5 Facebook profile belonged to Mayo. The profile contained sufficient distinctive characteristics from which the circuit court could conclude that a reasonable juror could find that the claude.mayo.5 profile belonged to Mayo. And there was sufficient circumstantial evidence under Maryland Rule 5-901(b)(4) for a reasonable juror to find it was more likely than not that Sample used the SoLo Haze Facebook profile to “unfriend” Claude Mayo. In and of itself, the ample evidence that the SoLo Haze profile belonged to Sample constituted strong evidence that he was responsible for the “unfriending.” Moreover, the circumstances surrounding the “unfriending” more than supported the conclusion that a reasonable juror could find that Sample “unfriended” Mayo.

In sum, 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. For these reasons, the circuit court did not abuse its discretion in admitting the Facebook-related evidence. Accordingly, the judgment of the Court of Special Appeals was reversed, and the case was remanded for that Court to address the other issues raised by Sample on appeal.

COMMENTARY: In this case, unlike in Sublet, there was no evidence that Sample ever gave the password and user name for the SoLo Haze Facebook profile to others. See Sublet, 442 Md. at 672. There was no evidence that anyone other than Sample ever had access to the SoLo Haze profile, much less that someone other than him used that profile to unfriend the claude.mayo.5 profile. Requiring the State to somehow conclusively disprove that someone other than Sample was responsible for the “unfriending” would establish too high a standard for authenticating social media evidence.

 

PRACTICE TIPS: Significantly, authentication merely renders evidence admissible, leaving the issue of its ultimate reliability to the jury. Thus, after the proponent of the evidence has adduced sufficient evidence to support a finding that the proffered evidence is what it is claimed to be, the opposing party remains free to challenge the reliability of the evidence, to minimize its importance, or to argue alternative interpretations of its meaning – but these and similar other challenges go to the weight of the evidence, not to its admissibility.

Maryland Court of Special Appeals

Evidence

Other crimes, wrongs, or acts

BOTTOM LINE: At the defendant’s trial for the murder of his father, the trial court did not err in admitting evidence of a violent altercation between the defendant and his father that took place approximately two months before the murder under an exception to the general prohibition of admission of evidence of “other crimes” in Maryland Rule 5-404(b) because this evidence had special relevance in establishing motive, intent, identity, and consciousness of guilt; was supported by clear and convincing evidence; and, though prejudicial, was not unfairly so.

CASE: Vaise v. State, No. 2205, Sept. Term, 2018 (filed May 4, 2020) (Judges Reed, SHAW GETER & Raker (Senior Judge, Specially Assigned)).

FACTS: On January 29, 2015, the body of Stephen Vaise was discovered in a pool of blood in his Baltimore home. After his death was ruled a homicide by gunshot, the State charged Stephen’s son, Matthew Vaise, with first-degree murder and use of a firearm in the commission of a crime of violence. Following a mistrial, Vaise was re-tried before a jury in the circuit court.

After prevailing on a pretrial motion in limine, the State presented evidence at trial that on December 9, 2014, Vaise had an altercation with his father, resulting in a call to 911, police intervention, and Vaise’s arrest for assault. The jury convicted Vaise of second-degree murder and use of a firearm in the commission of a crime of violence. A bifurcated proceeding was held to determine whether Vaise was criminally responsible.

At the bifurcated proceeding, Vaise presented expert testimony by Dr. Amanda Square, a forensic psychiatrist, who initially diagnosed Vaise as a schizophrenic with multiple substance abuse disorders and an antisocial personality disorder. Based on that evaluation, she concluded that at the time of his father’s murder, Vaise was not criminally responsible (“NCR”). The State presented testimony by Dr. Richard Ratner, another expert in forensic psychiatry, who disputed the diagnosis of schizophrenia and concluded that Vaise was criminally responsible at the time of the murder. The jury found Vaise criminally responsible.

Vaise was sentenced to 30 years of imprisonment for the murder, consecutive to 20 years for the firearm offense, without the possibility of parole during the first five years. He appealed his conviction to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Invoking the prohibition against evidence of “other crimes, wrongs, and acts” under Maryland Rule 5-404(b), Vaise contended that the motion court and the trial court erred in ruling that such evidence was admissible. Maryland Rule 5-404(b) states, in pertinent part, that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. Md. Rule 5-404(b).

Maryland Rule 5-404(b) is designed to protect the person who committed the “other crimes, wrongs, or acts” from an unfair inference that he or she is guilty not because of the evidence in the case, but because of a propensity for wrongful conduct. Winston v. State, 235 Md. App. 540, 563, cert. denied sub nom. Mayhew v. State, 458 Md. 593 (2018). The primary concern underlying the Rule is a fear that jurors will conclude from evidence of other bad acts that the defendant is a “bad person” and should therefore be convicted, or deserves punishment for other bad conduct and so may be convicted even though the evidence is lacking. Hurst v. State, 400 Md. 397, 407 (2007). Evidence of other crimes may be admissible, however, if the evidence is substantially relevant to some contested issue in the case and is not offered to prove guilt based on propensity to commit crimes. Id. at 406.

A three-part analysis is required before other crimes evidence may be admitted under an exception to the general rule prohibiting the admission of such evidence. First, the court must determine whether the evidence fits into one or more of the exceptions stated in Rule 5-404(b). Second, it must be shown by “clear and convincing” evidence that the defendant engaged in the alleged criminal acts. Third, the court must find that the probative value of the evidence outweighs any unfair prejudice. Darling v. State, 232 Md. App. 430, 462–63 (2017).

Here, before trial, the State moved to admit evidence that on December 9, 2014, Vaise assaulted his father, Stephen Vaise, whose 911 call summoned police to intervene in their dispute. At the hearing on that motion, the State proffered that Detective Kimberly Starr responded to the house after Stephen called 911 but the “call got cut off.” Vaise was “screaming” at his father, who reported that Vaise had “jumped” him while he was sleeping, ripped the alarm off the wall, and broken his cell phone and glasses. Vaise was arrested and charged with assault, but Stephen Vaise ultimately declined to press charges.

Vaise first disputed the motion court’s ruling that evidence of the incident had special relevance in establishing motive, intent, identity, and consciousness of guilt. However, this evidence was relevant to show a pattern of abuse and difficulties, which in turn demonstrated Vaise’s motive and intent in killing his father, and, derivatively, his identity. See Bryant

  1. State, 207 Md. 565, 586 (1955). The motion court did not err in finding that the evidence had special relevance in establishing “a continuing hostility and animosity toward” Stephen Vaise, when viewed in light of Vaise’s own statements to police that he and his father had a contentious relationship, that they argued on the night Stephen was last known to be alive, and that Vaise left the house immediately after that argument. See Snyder v. State, 361 Md. 580, 604 (2000).

Vaise next argued that the court erred in finding that there was clear and convincing evidence of the incident. However, the record supported the motion court’s determination that the proffered evidence about the altercation on December 9, 2014, was clear and convincing. Police responded to Stephen Vaise’s “cut-off” call for assistance. Stephen reported to Detective Starr that while he was sleeping, Vaise came into his bedroom and jumped on top of him, triggering an intense argument during which Vaise attempted to silence his father, by ending the 911 call and disabling his cell phone, landline, and alarm system. Given this and other evidence, the motion court did not abuse its discretion in finding that there was clear and convincing evidence regarding the altercation.

Finally, Vaise contended that any probative value of the evidence regarding the altercation with his father was substantially outweighed by the danger of unfair prejudice. This argument was likewise without merit. However, the incident of December 9, 2014, was not so remote in time or circumstances that the jury could not fairly rely on it as evidence of motive, intent, and identity in the January 2015 shooting of Stephen Vaise. The jury could reasonably infer, from Vaise’s own statements regarding his combative relationship with his father, that his hostility and violence toward his father during the December 2014 altercation continued after the assault charges were dismissed, erupting during their January 2015 altercation. Cf. Snyder, 361 Md. at 657.

In sum, evidence of the December 2014 altercation was prejudicial, but not unfairly so because of its special relevance in showing motive, intent, and identity in Stephen’s murder. In these circumstances, the motion court did not err or abuse its discretion in admitting such “other crimes” evidence. Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Vaise also contended that he was denied his right to a speedy trial by a series of eleven postponements that delayed his trial for 31 months after his arrest. Maryland courts have consistently applied the four factor balancing test announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), to address allegations that a defendant’s right to a speedy trial, as provided by the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights, has been violated. Four factors to be used in determining whether a defendant’s right to a speedy trial has been violated: (1) length of delay; (2) the reason for the delay; (3) defendant’s assertion of his right; and (4) prejudice to the defendant. Id. at 530.

Here, Vaise pointed to the lengthy delay between the date of his arrest and the date on which his motion to dismiss for a violation of his right to a speedy trial was heard. However, Vaise conceded that the initial months between his arrest and a subsequent change in his plea were reasonable and ultimately neutralized by his new plea of not criminally responsible (“NCR”). That plea change generated new trial preparation, requiring both defense counsel and prosecutors to initiate evaluations of whether Vaise was competent to stand trial and criminally responsible for killing his father. Cf. Vermont v. Brillon, 556 U.S. 81, 93-94 (2009). Moreover, even weighing this delay against the State, it was more than counterbalanced by Vaise’s NCR-related delay. Thus, neither of the first two Barker factors – the length and reasons for the delay – weighed against the State.

Vaise asserted his right to a speedy trial when defense counsel noted his appearance in March 2015, but not again for more than two years, until the hearing on March 27, 2017, when defense counsel opposed further postponement for the State to independently evaluate Vaise. More than four months later, defense counsel, after receiving Dr. Ratner’s report, filed Vaise’s first motion to dismiss on speedy trial grounds. By that time, the State was ready for trial. Vaise’s failure to assert his speedy trial demand at critical points undercut his claim that this factor weighed in his favor. Marks v. State, 84 Md. App. 269, 285 (1990). And, significantly, Vaise never contended his defense was actually impaired during the delay, in the sense that witnesses or other evidence became unavailable due to the passage of time. See Brady v. State, 36 Md. App. 283, 293 (1977).  Thus, weighing each of the Barker factors, the delay in this case did not violate Vaise’s right to a speedy trial.

 

PRACTICE TIPS: When inadvertent presentation of inadmissible evidence to the jury generates a request for a mistrial, it is necessary to consider whether a curative instruction adequately remedied any resulting prejudice. Only when the inadmissible evidence is so prejudicial that it cannot be disregarded by the jury (i.e., the bell cannot be “unrung”) will measures short of a mistrial be an inadequate remedy. Factors to be considered in determining whether a mistrial is required include: whether in improper reference was repeated or whether it was a single, isolated statement; whether the reference was solicited by counsel, or was an inadvertent and unresponsive statement; whether the witness making the reference is the principal witness upon whom the entire prosecution depends; whether credibility is a crucial issue; whether a great deal of other evidence exists.

 

 

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