Testimony Re Absence of Text Messages Properly Admitted

This post examines a recent decision from the Appellate Court of Connecticut that raised an interesting evidentiary issue. As Wikipedia explains, the law of evidence “governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier or fact, such as a jury) in a judicial . . . proceeding.”

As I’ve noted in earlier posts, the federal system and every U.S. state has its own rules of evidence, which generally tend to be pretty consistent. You can find the Federal Rules of Evidence here, and this site gives you access to the rules of evidence that apply in each U.S. state.

As I noted, we’re going to examine a Connecticut case: State v. Vega, 127 Conn. App. 20, __ A.3d __, 2011 WL 1367752 (Appellate Court of Connecticut 2011). This is what led to Edward D. Vega’s being charged with, and convicted of, robbery in the first degree, conspiracy to commit robbery in the first degree and assault in the first degree, all in violation of the Connecticut Criminal Code:

In the autumn of 2007, Daryl Wells was . . . a freshman at Trinity College in Hartford. . . . [He] met . . . Elysha Padilla, and the two became close friends. On April 26, 2008, Wells and Padilla had a `romantic encounter”’ in Padilla's dormitory room. After this encounter, . . . she ended all communication with him.

On May 5, 2008, Wells was in his dormitory room when an unknown woman . . . came to his door and gave him a letter she claimed was from Padilla. The letter indicated Padilla was distressed, prompting Wells to decide . . . to go see her. The woman [said] Padilla was staying in her apartment and offered to take him there. Wells . . . elected to follow . . . in his own car. The two went outside, and [she] entered a . . . Toyota Camry . . . driven by an unknown male. Wells followed the Camry to the Trinity Apartment Complex . . . , which was about one and one-half miles away from the Trinity College campus.

At approximately 9:40 p.m., Wells exited his car and followed the woman along the side of the apartment building. [She said] she forgot her key and would have to get it from her boyfriend. Wells followed [her] o the parking lot and . . . noticed two men coming toward them, one of whom was [Vega]. As [Vega] and his companion approached Wells, the woman kept walking past them. Wells greeted the men, but they did not respond. [Vega] pulled a gun from under his shirt and told Wells to get on his knees, which he did. The second man then circled around Wells.

Wells pleaded with the[m] to leave him alone and [said] . . . he did not have any money. The men . . . began attacking him. . . . [Vega]. . . . pistol-whipped Wells . . . [A]t one point, Wells heard a loud bang and felt blood gushing from his forehead. When the men were done . . ., [Vega] reached into Wells’ pant's pocket and took his wallet.

State v. Vega, supra. Residents of the apartment complex called police; Wells was taken to the hospital, and told that a bullet grazed his temple and “that he had a broken finger and bruises all over his body.” State v. Vega, supra.

Detective Jacobson investigated the attack. After he learned that a note allegedly from Padilla was used to lure Wells to the apartment complex, he obtained her phone and text message records, which revealed

substantial communication between her and [Vega]. Jacobson noticed many calls between Padilla and [Vega] on . . . the day of the attack, and that Padilla received four text messages from [Vega] and sent one to him at about the time of the attack. [He] also learned [Vega] drove a . . . Toyota Camry.

State v. Vega, supra.

“On the basis of this information,” Jacobson created a photo array that “included a photograph of” Vega and presented it to Wells, who identified Vega as one of the men who attacked him and “the individual who fired the gun at him.” State v. Vega, supra. Vega was arrested, and “voluntarily surrendered his cellular telephone.” State v. Vega, supra. He was later charged with the crimes I noted above, pled not guilty, went to trial and was convicted by a jury. State v. Vega, supra.

At trial, Wells “positively identified” Vega as the “man who had pistol-whipped and shot him.” State v. Vega, supra. The prosecution also presented testimony from a

Sprint/Nextel records custodian, [who] testified that on the night and at the approximate time of the attack, [Vega’s] telephone was used to place and receive calls and text messages from Padilla's telephone and that the cell site that received the transmissions made at the time of the attack was located at 2731 South Main Street in West Hartford. State inspector Kumnick testified that the cell tower accessed by [Vega’s] telephone at the time of the attack was only 1.02 miles from the apartment complex. . . .

New Britain police Sergeant Chute testified concerning . . . his forensic analysis of [Vega’s] telephone. Chute testified that [the] telephone contained text messages dated from September to October, 2007, and two messages from January, 2008. He noted . . . that there were no text messages on the telephone that were dated between January and June, 2008.

Chute testified . . . that there were only two reasons why there would not be text messages dated between January and July, 2008, on [Vega’s] telephone. One was that they deliberately were deleted; the other reason was that no messages were received or sent. When asked on cross-examination whether text messages can be deleted because too many were sent or received by the telephone, Chute [said] he was not aware that could happen but `[a]nything is possible. . . .’

State v. Vega, supra.

Vega was convicted, sentenced “to an effective term of fourteen years incarceration, execution suspended after seven years, and three years of probation.” State v. Vega, supra. He appealed, arguing, in part, that the trial judge erred in letting Chute give “his expert opinion concerning the calls and text messages received by and sent from” Vega’s cell phone. State v. Vega, supra.

Vega’s argued that (i) evidence regarding the missing text messages was irrelevant because it did “not make it more probable” that he intentionally deleted the messages sent from and received by his phone on the night of the attack and (ii) even if the evidence had some relevance, Chute's testimony “created a side issue that confused and unduly distracted the jury from the ultimate issue.” State v. Vega, supra. The Appellate Court rejected both arguments, beginning with the claim that the evidence was not relevant:

Chute's testimony concerning the absence of text messages . . . had the logical tendency to aid the jury in determining the issue of guilt. . . . `The state of mind which is characterized as . . . consciousness of guilt is strong evidence that the person is indeed guilty. . . .’ State v. Edwin M., 124 Conn. App. 707, 6 A.3d 124 (2010).

Although Chute's testimony encompassed a larger time frame than the days surrounding the attack on Wells, it still aided the jury in determining whether [Vega] displayed a consciousness of guilt. If the incriminating text messages were deliberately erased from [his] telephone, then evidence supporting such a determination renders it more probable that [he] was the individual who attacked Wells.

State v. Vega, supra. (In denying Vega’s objection to Chute’s testimony, the trial judge analogized deleting the text messages to “ripping pages out of a journal”, noting that if someone had a journal in which they recorded their daily activities, were accused of a crime committed at a certain time and the pages of the journal were found to be missing, that would be evidence of consciousness of guilt. State v. Vega, supra.)

The Appellate Court also rejected Vega’ argument that Chute’s testimony created a “side issue” that distracted the jury and prejudiced him. State v. Vega, supra. It held that the testimony “contained nothing that would unduly arouse the jury's emotions,” did not “create a side issue” and pertained to Vega’ “consciousness of guilt and did not distract the jury from the ultimate issue of determining his guilt.” State v. Vega, supra.

Finally, Vega claimed Chute’s testimony was improper “because he gave opinions that were purely speculative and, therefore, created a specious inference of a consciousness of guilt.” State v. Vega, supra. The Appellate Court again disagreed:

[Vega] challenges Chute's opinions that the text messages . . . were missing . . . due to inactivity or because they were deliberately deleted and that text messages could only be deleted by . . . deliberately erasing them. . . . [Vega claims] Chute's assumption that it was not reasonably possible that [his] telephone would automatically delete older text messages when it reached its storage capacity was patently false. He also claims Chute either lacked a sufficient understanding of cellular telephone functions or neglected to take them into consideration when stating his opinions as to why there were no text messages on the telephone between January and June, 2008. . . .

[W]e are persuaded that [Chute’s] opinion was based on his analysis of [Vega’s] telephone in addition to his education, training and experience gained from conducting forensic investigations. Furthermore, [Vega’s] claims that Chute's opinions were incorrect and he lacked an understanding of cellular telephones goes to the weight of his testimony rather than its admissibility. . . . [Vega] had the opportunity to challenge Chute's opinions on cross-examination, and it was the duty of the jury to determine the credibility of [his] testimony in light of any conflicting evidence presented by [Vega]. Accordingly, we conclude that the court did not abuse its discretion in admitting Chute's testimony.

State v. Vega, supra. The Appellate Court therefore affirmed Vega’s conviction. State v. Vega, supra.

If you're interested in what happened to Padilla and Rodriguez (the other participant in the robbery), at least as of last year, check out this news story.