Carolina appellate court OKs admission of murder victim's text

(This article was originally published in North Carolina Lawyers Weekly, Raleigh, N.C., another Dolan Media publication.)

Durham County, N.C., prosecutors properly established the authenticity of text messages that were sent to and from a murder victim's cell phone before he was killed, the Appeals Court has held in a first-impression ruling.

Testimony from cell phone company employees about how the messages were stored and retrieved - coupled with statements in the messages that linked them to the victim - was sufficient to lay the foundation for admitting the text message transcripts at trial, the court said.

The opinion in State v. Taylor gives attorneys guidance on how to authenticate electronic messages, which are playing an increasing role in litigation. Authentication of text messages is a prerequisite to their admissibility.

In Taylor, the prosecution offered transcripts and printouts of text messages for a Franklinton, N.C., man's cell phone number to show that he and another man agreed to a sexual rendezvous on Feb. 17, 2004, in Durham, N.C.

Four days later, the Franklinton man's body was found floating in a river. The victim had been beaten and shot before he died, according to an autopsy.

To establish that the state's exhibits were what they purported to be - copies of incoming and outgoing text messages for the victim's cell phone number - the prosecution relied on this testimony from two witnesses:

* a strategic care specialist with Nextel Communications testified that all customer text messages were recorded in a company database. Customers could get a record of their text messages by visiting Nextel's Web site and inserting an access code, he said.

* a Wireless Express store manager, who was authorized to access the victim's text messages, explained how he had retrieved them through the Nextel Web site. He identified the state's exhibits as the incoming and outgoing text messages that he had retrieved.

According to the opinion, the messages had been transmitted between the defendant's cell phone number and the victim's cell phone number Feb. 17, 2004 - the last day the victim was seen alive - and the previous day.

The defendant, who was convicted of first-degree murder and kidnapping, argued on appeal that the state failed to properly authenticate the text-message evidence.

The Appeals Court disagreed in an opinion by Judge John Tyson. Judges Douglas McCullough and Robin Hudson concurred.

Evidence Rule provides several methods to authenticate evidence. Among them is testimony of a witness with knowledge that a matter is what it is claimed to be.

Tyson said both the state's witnesses knew how Nextel sent and received text messages and how these particular text messages were stored and retrieved.

Their testimony was enough to show that the state's exhibits were text messages sent to and from the victim's assigned cell phone number on the dates in question, he said.

The panel also rejected the defendant's argument that no showing was made on who actually typed and sent the text messages. They contained sufficient circumstantial evidence that tended to show the victim was the person who sent them, the court held.

The messages included information that the person would be driving a 1998 Contour (the car the victim was driving), and the sender self-identified himself twice as 'Sean,' the victim's first name, Tyson said.

Although the issue had not been considered in this jurisdiction, other jurisdictions have upheld the admission of electronic messages as properly authenticated, according to Tyson.

The defendant also argued that admission of the text messages violated his Sixth Amendment right to confront the witnesses against him, but Tyson said he failed to object on that ground at trial.

The defendant's attorney did not return a phone call before press time.

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