Cyberstalking and “Other Suspect” Evidence

After being convicted of stalking, cyberstalking and perjury, Andre Luis Franklin appealed his convictions to the Washington Court of Appeals. State v. Franklin, 2012 WL 745227 (2012). The stalking and cyberstalking charges were based on Franklin’s alleged conduct with regard to Nanette Fuerte, a woman with whom he had “an `on and off’” intimate relationship “from 2005 forward” and with whom he worked at the City of Seattle Department of Parks and Recreation. State v. Franklin, supra. During this same period, he was “living with his girlfriend, Rasheena Hibbler.” State v. Franklin, supra.

Before we get into the facts and legal issues, I need to clarify the charges a bit. First, Washington state criminalizes stalking and cyberstalking: Washington Revised Code § 9A.46.110 defines “stalking” as intentionally and “without lawful authority”, repeatedly harassing or following someone which places that person “in fear that the stalker intends to injure” them.

Washington Revised Code § 9.61.260 defines cyberstalking as making an electronic communication to someone with the intention of harassing, intimidating, tormenting or embarrassing them; the communication must use “lewd, lascivious, indecent or obscene words, images or language” or suggest the commission of “any lewd or lascivious act”, be anonymous or threaten to injure the person. We’re only concerned with the stalking and cyberstalking charges; the perjury charge arose from Franklin’s testimony at a hearing. State v. Franklin, supra.

A lot went on in this case, so I’m going to summarize the facts: In October of 2008, Fuerte borrowed $3,000 from Franklin and promised to pay him back by November 26, which she apparently failed to do. State v. Franklin, supra. On November 6, Fuerte was home when Franklin showed up angry; it was “several hours” before she could persuade him to leave. State v. Franklin, supra. The next day, Fuerte began receiving emails and

phone calls from accounts and phone numbers she did not recognize. She finally answered one of the calls and the caller told her he was responding to a posting on Craigslist offering oral sex. She then discovered that the calls and e-mails she had been receiving were all requests for her to perform sexual acts. Fuerte . . . received 75 to 100 calls responding to the Craigslist ads. She stayed in a hotel that night because she was scared and changed her phone number the next day.

The following evening, . . . Fuerte was at a restaurant with family and friends when Franklin . . . came to her table. He was angry at Fuerte because she had changed her phone number and he told her he was `going to let the superintendent and [her] manager know exactly what type of person’ she was. He also demanded that Fuerte pay him the money she owed, and Fuerte told him she would pay him on Monday.

State v. Franklin, supra.

On November 10, Fuerte began “receiving e-mails from Franklin, asking her to meet” and pay him. State v. Franklin, supra. They were sent from “`time4gamez@yahoo.com.’” State v. Franklin, supra. When she emailed to say she was meeting a friend at 1:00 p.m. to borrow the money, she got a reply that said, in part, “`u asked me 2 b patient I no longer have any patients. . . . u have till 1 pm then u know what will happen[.]’” State v. Franklin, supra. Fuerte brought the money to Franklin’s home after she got it from her friend’s bank; when she paid him, he “laughed at her and said, `[D]o you think this is the end of it? This is just the beginning.’” State v. Franklin, supra.

Later that day, Fuerte received another email from the time4gamez address. State v. Franklin, supra. The subject line was “`I love to suck dick for free!” and email said

`Call me at 206–386–1921 and ask for Nanette and tell me what u would do to me. If you get no answer, leave a long message telling me what u would like to do to me and what u want me to do to u.”

State v. Franklin, supra. The number listed was her work number; attached to the email were “two pictures of a sexual nature, one of Fuerte and one of Fuerte and Franklin.” State v. Franklin, supra. Fuerte received more emails, from the same address, over the following days until she called Franklin and asked him to stop, which he refused to do. State v. Franklin, supra. After she received emails responding to “yet another sexually explicit” Craigslist posting, she contacted the police, which resulted in the charged noted above. State v. Franklin, supra.

At trial, Franklin’s defense was (in whole or in part) that his girlfriend Rasheena Hibbler was the one who was responsible for the emails and Craigslist postings. The opinion says that prior to trial, the prosecution moved to bar evidence that she committed the crimes with which Franklin was charged because “there was insufficient foundation for this `other suspect’ evidence.” State v. Franklin, supra. The evidence seems to have consisted of Hibbler’s having admitted, in an interview with the prosecutor, that her

her laptop was the only home computer, that she confronted Fuerte in the past via e-mail about her relationship with Franklin, and she had access to Franklin's work and personal e-mail accounts. When asked if she knew anything about the Craigslist ads before or when they were posted, if she posted them herself, and if she knew where the sexually explicit photo attached to the Craigslist ads came from, Hibbler asserted the 5th Amendment privilege.

State v. Franklin, supra.

The trial judge barred Franklin from introducing evidence that Hibbler was responsible on the grounds that he had not established the “foundation to have Ms. Hibbler as another suspect in the case.” State v. Franklin, supra. (He also held that she had “a 5^th Amendment right not to testify”. State v. Franklin, supra.) Franklin testified at trial and denied sending the emails, posting the Craigslist ads, having any conversations with Fuerte about the loaned money and that she repaid him. State v. Franklin, supra. He was convicted on all counts and, as I noted above, appealed.

In considering Franklin’s argument that the trial judge erred in “excluding `other suspect’ evidence showing that Hibbler actually committed the crime”, the Court of Appeals explained that the federal and state constitutes guarantee a criminal defendant the

right to present a defense, which includes the right to offer testimony of witnesses and to compel witness attendance, if necessary. But the right to present a defense is not absolute and does not extend to irrelevant or inadmissible evidence.

A criminal defendant seeking to admit evidence suggesting that another person committed the charged offense bears the burden of establishing its admissibility and must lay a sufficient foundation for such evidence. That foundation requires proof of the alleged other suspect's connection with the crime and the defendant must establish a train of facts or circumstances that tend to clearly point to someone other than the defendant as the guilty party.

A foundational showing that it was possible for a third party to have committed the crime is insufficient. Thus, mere motive, ability, and opportunity to commit the crime alone do not establish sufficient foundation. `Not only must there be a showing that the third party had the ability to place him- or herself at the scene of the crime, there also must be some step taken by the third party that indicates an intention to act on that ability.’

State v. Franklin, supra (quoting State v. Rehak, , 834 P.2d 651 (1992) (emphasis in original).

The court then explained why Franklin had not made the necessary “foundational showing” for the introduction of Hibbler’s testimony as “other suspect” evidence:

[T]here was no evidence indicating Hibbler's intent to act on her alleged motive. The proffered `other suspect’ evidence pointing to Hibbler consisted of her statements that she had access to Franklin's work and personal 10 e-mail accounts, used his `squareone’ personal account to send e-mails to unnamed `others,’ had harassed Fuerte by e-mail from her own account in the past, was aware of the money dispute between Franklin and Fuerte, and had seen the sexually explicit photographs of Fuerte that were attached to the Craiglist ads.

At most, this shows she had access to some of Franklin's e-mail accounts and the computer from which the e-mails were sent, and was aware of some of the content of the harassing e-mails (the loan dispute and sexually explicit photographs). While this establishes that she had motive and possibly the ability to commit the crime, it does not establish the `direct connection’ required -- that she in fact took some step indicating an intention to act on that ability.

The evidence does not establish that Hibbler used Franklin's e-mail accounts to contact Fuerte, sent Fuerte e-mails pretending to be Franklin, used or was even aware of the `time4gamez’ account involved in the crime, or posted the Craigslist ads and sexually explicit photographs.

State v. Franklin, supra.

The Court of Appeals noted, though, that “whether Hibbler's testimony amounts to admissible `other suspect’ evidence is a close call”. State v. Franklin, supra. But it found (i) that it could not say the trial judge abused his discretion by excluding it and (ii) even if he had, it would have been harmless error, i.e., would not have required reversing the convictions. State v. Franklin, supra.

The reason the error, if indeed one was made, would have been harmless was that the evidence “would have been subject to the 5^th Amendment privilege and inadmissible on that basis.” State v. Franklin, supra. As the Court of Appeals put it, “if such testimony was in fact admissible as `other suspect’ evidence, it would furnish a link in the chain of evidence needed to prosecute Hibbler and would therefore be protected by the 5th Amendment privilege.” State v. Franklin, supra.

As I’ve noted in earlier posts, to be able to claim the 5^th Amendment privilege you must be (i) compelled to (ii) give testimony that (iii) incriminates you, i.e., implicates you in a crime. Franklin had apparently subpoenaed Hibbler to testify; a subpoena constitutes “compulsion” because if the witness does not comply, the judge will hold her in civil contempt and order her incarcerated until she complies. Since she would be required to speak – to “testify – that requirement is also met. The only issue that might be problematic is whether her testimony would incriminate her, i.e., implicate her in the cyberstalking/stalking of Fuerte.

In a rather roundabout way, the Court of Appeals decided it would not:

Because it did not amount to `other suspect’ evidence as the trial court concluded, it was not subject to the 5th Amendment privilege and the trial court's ruling to the contrary was in error. Nonetheless it was still inadmissible as irrelevant, precisely because it does not amount to other suspect evidence.

Indeed, it was unnecessary for the trial court to even determine applicability of the 5th Amendment once it had already determined that such evidence was irrelevant and not admissible as `other suspect’ evidence. Thus, at most, the trial court's ruling amounts to harmless error because Hibbler's testimony was already inadmissible under the `other suspect’ analysis.

State v. Franklin, supra.