Murder, Text Messages and the Motion in Limine

After he was “indicted on one count of Murder in the First Degree, two counts of Attempted Robbery in the First Degree, one count of Conspiracy in the Second Degree, and two counts of Possession of a Firearm during the Commission of a Felony”, all in violation of Delaware law, Jermaine M. Zachary filed a motion in limine in which he argued that certain evidence should not be admitted at his trial.  State v. Zachary, 2013 WL 3833058 (Superior Court of Delaware 2013). As Wikipedia explains, a motion in limine is a motion a party to a civil or criminal case files, prior to trial, asking the judge to admit or exclude certain evidence. 

This, according to the opinion, is how the case arose:

On September 25, 2009, at approximately 2:50 p.m., Robert Watkins was shot and killed during an apparent robbery in Dover, Delaware. Watkins and his girlfriend, Rosita Brady, had agreed to meet Jermaine Zachary and the shooter at a residence on Jeffrey Drive with the intent to purchase pit bull puppies from a man named `Jonesy.’ 

Brady told police they drove to the residence with $1,800. When they arrived at the residence, [Zachary] got into the rear passenger seat of the vehicle and asked Brady if her vehicle was for sale.

At this time, the shooter, who was standing outside the vehicle, pulled out a handgun and pointed it at the victim. Watkins was shot once in the torso and later pronounced dead at Christiana Hospital. Delaware State Police questioned [Zachary] on the day of the murder. Brady identified [Zachary] as `Jonesy.’

State v. Zachary, supra. The court also explains that

no arrests were made in the case until July 2012, when Detective Mark Ryde, who had been recently assigned to the case, reviewed [Zachary’s] cellular phone records. Ryde discovered a series of text messages exchanged by [Zachary] and the user of a prepaid cell phone number with the number 202–236–4884 (hereinafter `the 202 number’) between 12:20 p.m. and 12:48 p.m. on the day of Watkins' death. The State alleges that these text messages are strong circumstantial evidence that [Zachary] conspired with the user of the 202 number, which the State purports was the alleged shooter, to rob Watkins and Brady.

State v. Zachary, supra.  In a footnote, the court explains that since the “alleged shooter has not been charged for his role in Watkins' death”, the court will “abstain from identifying this individual by name.”  State v. Zachary, supra. 

In his motion in limine, Zachary argued that “the following text messages exchanged between [his] cell phone and the 202 number in the hours preceding the shooting” should not be admitted into evidence at his trial:

Sent to 202–236–4884 at 12:24 p.m.: ‘Kum Rob Dub $RootOfAllEvil’

Received from 202–236–4884 at 12:24 p.m.: ‘Were u at’

Sent to 202–236–4884 at 12:25 p.m.: ‘Murda im about a shoot dice $RootofAllEvil’

Received from 202–236–4884 at 12:25 p.m.: ‘He shootn now’

Sent to 202–236–4884 at 12:28 p.m.: ‘were u at $RootofAllEvil’

Received from 202–236–4884 at 12:29 p.m.: ‘Felton’

Sent to 202–236–4884 at 12:29 p.m. ‘Oh I ant even gonna start shootn then $RootofAllEvil’

Received from 202–236–4884 at 12:29 p.m.: ‘Ight’

Sent to 202–236–4884 at 12:48 p.m.: ‘Yo u still dwn there he got like 1500 on em $RootOfAllEvil’

Received from 202–236–4884 at 12:48 p.m.: ‘Dam yea get em or stay wit him.’

State v. Zachary, supra. 

More precisely, Zachary argued that the text messages should not be admitted “on the grounds that they cannot be properly authenticated, are irrelevant, and are unduly prejudicial under Rule 403 of the Delaware Rules of Evidence (hereinafter `D.R.E.’).”  State v. Zachary, supra.  The prosecution filed a response to Zachary’s motion, in which it argued that the text messages

both prove the existence of a conspiracy to rob the victim and his girlfriend, and serve as statements made in furtherance of that conspiracy. Thus, the State argues that the text messages are highly relevant, and that their probative value is not outweighed by their prejudicial effect.

State v. Zachary, supra. 

The court addressed Zachary’s arguments as to why they should not be introduced into evidence in the order in which he made them, beginning with the issue of authentication.  State v. Zachary, supra.  As to the law on authentication, the judge explained that it is an

[indispensable condition precedent to the admissibility of documentary evidence. D.R.E. 901(a). This requirement is satisfied when the proponent of the writing or document in question produces evidence `sufficient to support a finding that the matter in question is what its proponent claims.’ D.R.E. 901(a). Potential methods of authentication are illustrated in Rule 901(b).

The most germane to the present case is found in D.R.E. 901(b)(4), which provides that a finding of authenticity may be based entirely on circumstantial evidence, including the document's `[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.’ Proof of authorship need not be conclusive, but a prima facie showing of the author's identity must be established for the writing to be admissible.

State v. Zachary, supra (quoting U.S. v. Sinclair, 433 F.Supp. 1180 (U.S. District Court for the District of Delaware 1997)).

The judge then took up the issue of whether the text messages at issue in this case had been or could be properly authenticated:

Whether text messages are subject to the same authentication requirements under D.R.E. 901 as other electronic documents appears to be a somewhat novel question of law in this jurisdiction. Thus, I find it helpful to consider the decisions of other courts that have addressed this issue. 

For example, in Commonwealth v. Koch, 39 A.3d 996 (2011), the Superior Court of Pennsylvania considered the authentication of text messages transcribed from the defendant's cellular phone. The court held that the police detective's description of how he transcribed the text messages from the defendant's cell phone, together with his representation that the transcription was an accurate representation of the text messages on the phone, was insufficient to authenticate the identity of the author as the defendant.

The court observed that, as with non-electronic documents generally, the identity of the sender is critical to the authentication of text messages, and that `the difficulty that frequently arises in . . . text message cases is establishing authorship.’ A person cannot be identified as the author of a text message based solely on evidence that [it] was sent from a cellular phone bearing the telephone number assigned to that person because `cellular telephones are not always exclusively used by the person to whom the phone number is assigned.’ 

Thus, some additional evidence, `which tends to corroborate the identity of the sender, is required.’ Circumstantial evidence corroborating the author's identity may include the context or content of the messages themselves, such as where the messages `contain[ ] factual information or references unique to the parties involved.’ Other jurisdictions have also looked to the context and content of the messages for sufficient circumstantial evidence of their authorship.

State v. Zachary, supra (quoting Commonwealth v. Koch, supra).

The judge found the reasoning of Koch persuasive, noting that “[e]stablishing the identity of the author of text messages through the use of corroborating evidence is critical to satisfying the authentication requirements of D.R.E. 901.” State v. Zachary, supra.  He therefore found that to have the messages admitted at Zachary’s trial, the prosecution, “as the proponent of the text-message evidence, must explain the purpose for which the text messages are being offered and provide sufficient direct or circumstantial evidence corroborating their authorship to satisfy the requirements of D.R.E. 901.”  State v. Zachary, supra. 

The judge explained that in this case, the prosecution          

intends to offer the text messages both as evidence that [Zachary] conspired with the alleged shooter to rob Watkins and Brady, and as statements of co-conspirators. As such, the messages are only relevant to the extent that the State can authenticate that [he] authored all of the outgoing messages and that the alleged shooter authored the incoming messages. 

The parties agree that [Zachary] authored all of the outgoing messages. Indeed, the State is prepared to corroborate that [he] was the author of the outgoing messages with testimony from various witnesses with knowledge of [Zachary’s] cell phone number and use of the signature `$RootOfAllEvil.’

Glaringly absent in this case is any evidence tending to substantiate that the alleged shooter wrote the 202 messages. In the present case, authentication requires more than mere confirmation that the 202 number belongs to a particular person.  Indeed, the 202 number was issued to a prepaid cell phone, and, therefore, had no registered owner or user associated with it. Thus, the State must rely on circumstantial evidence to corroborate that the alleged shooter authored the 202 messages.

At the evidentiary hearing [on the motion in limine], the State announced its intentions to authenticate the text messages by the content of the exchange. The State argued that only the alleged shooter would be inquiring into [Zachary’s] whereabouts in the hours preceding the shooting, and that a jury could reasonably infer from the messages themselves that the alleged shooter was speaking of Watkins and Brady when he told [Zachary] to `kum rob dub’ and `get em and stay wit him.’

State v. Zachary, supra. (In a footnote, the judge points out that at the evidentiary hearing on the motion in limine, "counsel informed the Court that the payment records that the State could have used to determine the identity of the prepaid phone user were no longer available from the provider." State v. Zachary, supra.)

The judge did not buy the prosecution’s argument, explaining that the content of

this conversation is somewhat cryptic. It's equally plausible to infer that [Zachary] was merely discussing his gambling activities with an unknown individual in this exchange. 

There are no contextual clues in the text messages themselves that tend to corroborate that the alleged shooter authored the incoming text messages. In other cases in which a message has been held to be authenticated by its content, the identifying characteristics have been much more distinctive of the purported author and often have been corroborated by other events or with forensic computer evidence.

Without additional evidence from which the jury could infer that the alleged shooter authored the incoming messages, the State cannot authenticate the 202 messages. Without proper authentication, this text message exchange is simply not relevant to this case; as it does not have the tendency `to make the existence of any fact that is of consequence to the determination of the action more or less probable’ than it would be without it. D.R.E. 401. Because the State cannot satisfy the requirements of D.R.E. 901, I need not reach the additional bases for exclusion argued by [Zachary].

State v. Zachary, supra. 

The judge therefore granted Zachary’s motion in limine.  State v. Zachary, supra.