Murder, Hearsay and the Cell Phone Records

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After a jury convicted Derrick Griffin of “first-degree murder by drive-by shooting, in violation of Minnesota Statutes § 609.185(a)(3) and first-degree premeditated murder in violation of MinnesotaStatutes § 609.185(a)(1)” for his role in “the death of Kristopher Miller”, he appealed.  State v. Griffin, 2013 WL 3929143 (Supreme Court of Minnesota 2013). On appeal, he argued that the jury’s verdict should be reversed “because of the erroneous admission of out-of-court statements made by his wife, Kim Griffin, and cell phone records obtained without a warrant.”  State v. Griffin, supra.  

According to the opinion, the case began on the night of May 10, 2011, when

Kristopher Miller was shot to death on the front porch of his home in Minneapolis. At the time of his death, Miller was in a romantic relationship with Griffin's wife, Kim. Prior to the murder, Griffin had discovered sexually explicit text messages on Kim's cell phone and thought Kim was seeing someone who worked at the Elks Club, which is located on Plymouth Avenue in North Minneapolis.

On the evening of May 10, 2011, Kim was at the Elks Club with a group that included Miller; Miller's sister, L.M.; and L.M.'s boyfriend, L.B. When the group left the Elks Club at 11:15 p.m., they saw a white four-door Cadillac sedan parked across the street from the front door of the club. After seeing the vehicle, Kim said to the group `[l]ook at my husband over there, stalking me again.’ L.M. and L.B. also noticed the white four-door Cadillac but were unable to see if the vehicle was occupied and could not later identify the Cadillac specifically as Griffin's vehicle.

After Kim's comment, Miller walked Kim to her car, gave her a hug, got into his truck, and drove away toward his home. L.M. and L.B. also left and none of the witnesses saw the Cadillac move.

State v. Griffin, supra.

The opinion then explains that Miller’s home was

`a couple blocks away’ from the Elks Club. Three of Miller's neighbors heard gunshots at approximately 11:30 p.m., and two of the neighbors called 911. The same two neighbors saw a light colored large sedan similar to a Cadillac backing down Irving Avenue, the street on which Miller lived. Shortly thereafter, Miller was found dead on the front porch of his duplex. Miller died from multiple gunshot wounds to the back.

State v. Griffin, supra.

When they arrived at the scene, police and officials from the Minneapolis crime lab searched the

area for evidence but did not recover any shell casings or bullets. The lack of shell casings indicated to police that a revolver was most likely the type of gun used in the shooting. Police also. . . . discovered Griffin was the registered owner of a 1996 white four-door Cadillac Sedan DeVille.

When police contacted Kim, she gave them the number for a cell phone that was associated with Griffin and indicated Sprint was the cell phone provider for that phone. Kim also told police Griffin was aware of her relationship with Miller and she thought she had seen Griffin at the Elks Club that evening. [She] told police that after she left the Elks Club, she made and received calls on her cell phone to and from Griffin at 11:30, 11:46, 11:49, and 11:55 p.m. on May 10, related to why she saw Griffin outside the Elks Club. Kim [said] she did not need to tell Griffin she was on her way home from the Elks Club `because he would have already known that.’

State v. Griffin, supra.

Based on their investigation, the police suspected Griffin was the killer, but they had not found the murder weapons and did not know if anyone else was a target.  State v. Griffin, supra.  They therefore concentrated on trying to determine Griffin’s location,

and faxed an `exigent circumstances request’ to Sprint/Nextel at 5:36 a.m. on May 11, 2011. For the phone Griffin was reported to be using, police requested the subscriber information, call detail records with cell-site information for the past week, and information showing the current location of the phone and its location over the past 14 days. To describe the exigent circumstances, police wrote `[h]omicide suspect from 5–10–11 at 2325 hours. Homicide suspect has a Sprint phone number. . . .’

The records police received from Sprint/Nextel revealed the subscriber for the phone associated with Griffin was Griffin's girlfriend. . . . Griffin's name was not listed on any of the cell phone records. Additionally, the records showed the phone `was turned on, it was being used, and that it was hitting off cell site towers that [we]re in the proximity of where the murder happened’ at the time the shots were fired. . . . [A] call was made from the phone approximately 25 minutes prior to the shooting that pinged off of a tower across the street from the Elks Club and showed the phone was 1.88 miles away from the tower.

State v. Griffin, supra.  (Police did not use a search warrant to get the phone records, which would clearly have satisfied the 4^th Amendment.  State v. Griffin, supra.)

The Sprint/Nextel records also showed the phone was “at Griffin's girlfriend's residence in Columbia Heights”, so officers arrested Griffin “at a gas station in Columbia Heights after observing him leave” her residence.  State v. Griffin, supra. After they arrested him, they searched his girlfriend’s residence and found a “found a blue .38 caliber revolver fully loaded with five rounds, a 9 millimeter handgun, one copper-jacketed live round lying on the nightstand, a 20–count box of .38 caliber copper-jacketed rounds with five rounds remaining in it, and a title for a white Cadillac showing the car belonged to Griffin.” State v. Griffin, supra.  They also searched his car and found “a box of .38 caliber copper-jacketed ammunition in the center console with five rounds missing.”  State v. Griffin, supra.  “One of the cartridges in the .38 revolver had a fingerprint on it that matched Griffin's fingerprint and records indicated Griffin had purchased the .38 revolver.” State v. Griffin, supra. 

Forensic testing “was inconclusive as to whether the .38 revolver found in Griffin's girlfriend's residence was the gun” used to kill Miller. State v. Griffin, supra. The forensic examiner said “she `could neither say it was the gun and couldn't say it wasn't the gun.’” State v. Griffin, supra.  When Griffin was booked into jail,

police found a .38 caliber silver tipped hollow point round with a disc down the center in the pocket of Griffin's shorts.  The bullet recovered from Griffin's pocket had `similar class characteristics’ to the bullet the medical examiner recovered from Miller's body. Griffin admitted owning the two guns found in his girlfriend's residence.

State v. Griffin, supra. 

When police questioned Griffin, he “initially denied being near the Elks Club on the night of the murder”, but later admitted he was “in North Minneapolis that night to pick up liquor”. State v. Griffin, supra.  He then returned to “his girlfriend’s home”. State v. Griffin, supra.  Griffin said “he initially lied about his location because, as a pastor, he did not want people to know he was `cheating on [his] wife’ or `drinking.’” State v. Griffin, supra. 

Griffin’s first argument on appeal was that his wife’s statement about him stalking her “again” should not have been admitted because it was hearsay.  As Wikipedia explains, and as I have noted in prior posts, hearsay is an out of court statement by someone that is, or is sought to be, introduced into evidence at trial.  The default rule in the United States is that hearsay is not admissible because, as I have explained in prior posts, it is generally considered to be unreliable.  The primary problem, as I have also noted in prior posts, is that if you admit an out of court statement – like Kim’s statement about Griffin stalking her – the defendant cannot cross-examine the person who made the statement.  In the United States,  cross-examination is considered an important way to test the truth of a statement.  With hearsay, the jury either buys the statement or they don’t.

The trial judge admitted Kim’s statement under Minnesota Rule of Evidence Rule 807, and the Minnesota Supreme Court upheld that decision.  State v. Griffin, supra.  The law in the federal system and in the states includes various exceptions – like the one Rule 807 creates -- that allow hearsay to be admitted in court.  Under Rule 807, a court can admit hearsay if it has “circumstantial guarantees of trustworthiness” equivalent to those required under the other rules that create hearsay exceptions.

The trial judge found Kim’s statement was sufficiently trustworthy because it “was made spontaneously among a group of [her] friends and acquaintances” and she “affirmed the statement when L.M. asked `[i]n that Cadillac over there?’” State v. Griffin, supra.  The judge also found that it was “probative of a material fact”, i.e., the motive for the murder.  State v. Griffin, supra.  The judge also found it was the only evidence the prosecution had that put Griffin’s car outside the Elk’s Club when Miller and Kim left. State v. Griffin, supra.  The Supreme Court upheld the judge’s decision. State v. Griffin, supra. 

Griffin’s other argument was that his 4^th Amendment rights and his rights under

Article I, Section 10 of the Minnesota Constitution were violated when the district court admitted into evidence records of calls made and received as well as the location of cell towers contacted by the cell phone Griffin was using at the time of the murder. Griffin argues that he has an expectation of privacy in these cell phone records and therefore his constitutional rights were violated when police obtained the records without a warrant and when those records were admitted at trial.

State v. Griffin, supra. 

The prosecution argued that the trial judge was correct in finding that Griffin had no

expectation of privacy in the cell phone records because . . .Griffin was not the subscriber and therefore a stranger to Sprint/Nextel, the holder of the records. Further, the State contends Griffin produced no evidence that he attempted to conceal anything about the cell phone and offered no other evidence supporting the conclusion that he had an expectation of privacy in the records. 

State v. Griffin, supra. 

As I have noted in prior posts, state constitutions (i) cannot provide less protection for privacy than the 4^th Amendment but (ii) can provide more protection than it does. So, when I saw Griffin was making an argument under the state’s constitution, I assumed it provided, or he would argue it should provide, more protection than the 4^th Amendment. 

I was wrong.  The Supreme Court begins its analysis of Griffin’s second argument by explaining that a defendant’s rights to challenge a

`search under Article I, Section 10 of the Minnesota Constitution are coextensive with [his] rights under the 4th Amendment to the U.S. Constitution. State v. Carter, 596 N.W.2d 654 (Minnesota Supreme Court 1999). When a defendant alleges that a search violated his constitutional rights, we determine whether the search `has infringed an interest of the defendant which the 4th Amendment was designed to protect. State v. McBride, 666 N.W.2d 351 (Minnesota Supreme Court 2003). The defendant `has the burden of establishing that his own 4th Amendment rights were violated by the challenged search or seizure.’ Rakas v. Illinois, 439 U.S. 128 (1978).

So, in invoking the Minnesota Constitution’s version of the 4^th Amendment, Griffin really did not add anything notable to his argument.  The Supreme Court went on to explain that the test it uses to determine whether someone’s 4^th Amendment rights have been violated is the one the U.S. Supreme Court established in Katz v. U.S.,389 U.S. 347 (1967), which I have discussed in prior posts.  Here, the court noted that in

determining whether a defendant's rights have been violated under the 4th Amendment, we apply a two-part test, first considering whether the defendant `exhibited an actual subjective expectation of privacy in the’ cell phone records’ and then `determin[ing] whether that expectation is reasonable.’ State v. Gail, 713 N.W.2d 851 (Minnesota Supreme Court 2006).  In the first part, we `focus [our] inquiry on the individual's conduct and whether the individual sought to preserve something as private. In re Welfare of B.R.K., 658 N.W.2d 565 (Minnesota Supreme Court 2003).

We have `found a defendant illustrates a subjective expectation of privacy when he attempts to conceal activity or items.’ State v. Gail, supra. . . . [A]n individual's `expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable.’ State v. Perkins, 588 N.W.2d 491 (Minnesota Supreme Court 1999).

State v. Griffin, supra. 

In the Gail case, the Supreme Court held that the defendant did not have a subjective expectation of privacy in his cell phone records because he used a phone that was owned Larkins, who “sub-leased” it to Davis who “sub-sub-leased” it to Gail. State v. Griffin, supra. It found that because “two people” stood between him and the phone company, he could not have subjectively believed the company would keep his records private.  State v. Griffin, supra.  The court also found that Gail did not do anything to keep his cell phone usage confidential because he “repeatedly called the victim” and police found his phone number on the victim’s cell phone.  State v. Griffin, supra. 

The Supreme Court reached the

same conclusion in this case. Like the defendant in Gail, Griffin was not the subscriber associated with the phone. Rather, [his] girlfriend was the subscriber of record and Griffin's name did not appear on Sprint/Nextel's records. Also, on the day of the murder Griffin initiated 46 outgoing calls or text messages, including some to his wife, who voluntarily gave his phone number to police. Finally, like the defendant in Gail, Griffin offered no evidence that would support the conclusion that he had an expectation of privacy in the cell phone records.

Under Gail, because Griffin was a stranger to Sprint/Nextel and presented no evidence that he expected Sprint/Nextel to keep his phone usage private, he did not meet his burden to show that he had a subjective expectation of privacy in the cell phone records.

State v. Griffin, supra. 

So the court held that “[b]ased on Gail, . . . Griffin did not have a subjective expectation of privacy in the cell phone records and therefore we hold that the admission of the cell phone records did not violate [his] 4th Amendment rights or his rights under Article I, Section 10 of the Minnesota Constitution.”  State v. Griffin, supra. It then affirmed his conviction and sentence. State v. Griffin, supra.