Friday, October 04, 2013

Murder, the Smartphone and Authenticating Evidence

After Miles Toran was convicted of murder and attempted murder in violation of Indiana Code §§ 35-42-1-1 & 35-41-5-1(a) and sentenced “to sixty-five years for murder and thirty years for attempted murder, with the terms to be served concurrently for a total executed sentence of sixty-five years”, he appealed.  Toran v. State, 2013 WL 5303734 (Indiana Court of Appeals 2013).

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

Sharon and Miles Toran were married in May 2008 and had two daughters together, born in September 2009 and March 2011. At some point, the couple separated and divorce proceedings were initiated. Toran, who was on active duty in the Air Force, lived in Virginia, while Sharon moved with her daughters back to Indianapolis. 

Toran returned to Indianapolis on Tuesday, April 17, 2012, as there was a custody hearing scheduled for later that week. While in town, he stayed with his parents and siblings. . . . Toran left the home on Walma Court around 8:00 that evening and was not seen by his family until sometime around 10:30, when he came home, took a shower, and then left again. . . .

Sharon was staying with the girls at her parents' home about fourteen minutes away on North Layman Avenue. Around 10:00 p.m., Jonathon Perry, Sharon's brother, waited on the front porch of the Layman residence. Sharon drove up in her van shortly thereafter with her two young daughters and parked along the street in front of the house. Perry retrieved the house key from her and went inside with his friend, while Sharon stayed outside to collect her daughters.

Shortly after entering the home and heading to the basement, Perry and his friend heard screaming. As Perry ran outside and toward the van, he heard his two-and-one-half-year-old niece yell, `daddy’, and then Sharon say, `don't do this, Miles.’ . . . Perry ran around the front of the van and toward the passenger side, where he encountered Toran, who was dressed in dark clothing, wearing glasses, and armed with a rifle.

Sharon and the girls were closed inside the van. Toran immediately turned his attention . . . toward Perry and shot Perry once with the rifle at close range. The shot hit Perry's upper leg near his waist and broke his femur, taking Perry directly to the ground. Toran then shot multiple times through the window of the van's sliding door, shooting Sharon three times while she was within arm's reach of the children, who were still confined in their car seats. . . .

Perry observed Toran run behind a house on the other side of the street and then quickly speed away southbound in a black Honda or Acura. Police received 911 calls at 10:18 p.m. Sharon was found dead at the scene, and Perry suffered serious injury to his leg, requiring at least a week-long hospital stay. At the scene, Perry informed police of the shooter's identity and described the getaway car and direction of travel.

Toran v. State, supra.

The opinion also notes that at around

3:00 a.m., Toran went to the Indianapolis City-County Building to make a statement in which he denied any involvement in the shooting. He told police he was separated from his wife and was in town for a custody hearing. He claimed he was nowhere near the Layman residence and had spent the evening at his parent's house and also visiting his sister at the hospital.

Cellphone records, however, indicated transmissions from his phone near the area of the shooting in the hour before and within minutes of the shooting. Video surveillance at the hospital also revealed that he was not at the hospital visiting his sister around the time of the shooting.

Toran v. State, supra.

Toran raised several arguments on appeal, only one of which is examined here.  Toran argued that the trial judge erred when he allowed the prosecution to introduce evidence

obtained from his smartphone. The evidence in question was four articles downloaded on the phone from the internet within about ten hours of the shootings. Each of the articles touched in some manner on the topic of murder.  Toran challenges the admissibility of this evidence on the basis of foundation and relevance.

Toran v. State, supra.  In a footnote, the court explains that

State's Exhibit 40 was an article setting forth the penalties for murder in New South Wales, Australia; 41 was an article suggesting that the evidence in the Scott Peterson murder trial did not support the conviction; 42 was the beginning of an article about writing murder mysteries; and 43 was an article entitled, `How to Show Murder Evidence to a Jury.’

Toran v. State, supra. Toran pointed out that “[t]he witness supporting the admission of these exhibits could not say if [he] had read these articles or even how long the articles appeared on the screen of the cell phone”.  Toran v. State, supra. 

In his appeal, Toran claimed the prosecution did not establish an adequate foundation to support admitting the articles and did not show they were relevant to issues in the case.  Toran v. State, supra.  As Wikipedia notes, in evidence law a “foundation is sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in the form of exhibits”. 

The Court of Appeals noted that Toran “seems to argue that a foundation for this evidence was not properly laid because the State could not establish whether [he] actually read the articles or even how long each appeared on the screen of his phone.” Toran v. State, supra.  It explained that Rule 901(a) of the Indiana Rules of Evidence

provides that `[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ `Absolute proof of authenticity is not required.’ Fry v. State, 885 N.E.2d 742 (Indiana Court of Appeals 2008). . . . When evidence establishes a reasonable probability that it is what it is claimed to be, a sufficient foundation has been laid. Fry v. State, supra. . . .

Toran v. State, supra.  For more on authentication, check out this prior post.

As to authentication in this case, the Court of Appeals noted that

[l]etters and words set down by electronic recording and other forms of data compilation are included within Rule 901. Hape v. State, 903 N.E.2d 977 (Indiana Court of Appeals 2009). . . Thus, in order to be admissible, electronic data recorded on a cellphone must be authenticated separately from the phone. Hape v. State, supra.

The authentication of data recordings obtained from a cellphone is the same as for those obtained from a personal computer and is satisfied by a showing that the images contained in the exhibits were recovered from the defendant's phone. . . .

Toran v. State, supra. 

Here, as the prosecution’s brief on appeal notes, at his trial

forensic investigator Brett Seach testified that he retrieved the data from [Toran’s] cellphone. . . . Officer Seach testified that he found four images and related metadata on the phone from murder related websites which had been accessed on the day [Toran] killed Sharon. . . . 

Brief of Appellee, Toran v. State, 2013 WL 3976707.

In its opinion, the Court of Appeals explained that Toran did not

dispute that the evidence in question was retrieved from his smartphone, as indicated by testimony at trial. Moreover, he did not challenge Detective Brett Search's [sic] technical capabilities or the procedures employed in retrieving and producing reproductions of the data/images found on the micro-SD card from the phone.

His entire argument is that the State could not establish that he was the one who searched for these articles on his phone or that he ever read them. This goes to the weight of the evidence, not foundation. The State laid a sufficient foundation for this evidence.

Toran v. State, supra. 

Toran also argued that the articles were not evidence that was relevant to the issues in the trial.  Toran v. State, supra.  The court explained that relevant evidence is

defined as `evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Indiana Rule of Evidence 401.

To be relevant, the evidence at issue need only have `some tendency, however slight, to make the existence of a material fact more or less probable, or tend to shed any light upon the guilt or innocence of the accused.’ Smith v. State, 982 N.E.2d 393 (Indiana Court of Appeals 2013). . . . This is a `rather low threshold’. Smith v. State, supra.

Toran v. State, supra. 

The Court of Appeals rejected Toran’s argument on relevance:

The evidence in question indicates that Toran's smartphone was used to access webpages related to murder (that is, the penalty for murder and defending a murder charge) approximately ten hours before the shooting. This circumstantial evidence had at least some tendency to establish Toran's identity as the shooter and to show his intent and motive.

The appropriate weight to be given this evidence was properly left for the jury to decide. The trial court did not abuse its discretion by allowing the exhibits into evidence over Toran's objection.

Toran v. State, supra. 

As an aside, Toran also argued that his sentence was excessive because “there was nothing about the offense or the offender that justified the maximum sentence.”  Toran v. State, supra.  The Court of Appeals did not agree.  It noted, first, that he

did not receive the maximum sentence, as his sentences could well have been

ordered to be served consecutively. In fact, the State asked the trial court to impose eighty-five years (consecutive sentences of fifty-five and thirty years). The trial court rejected the State's request. . . .

Toran v. State, supra. 

The court also addressed the propriety, as such, of the sentence imposed on him:

Turning to the nature of the offenses, we observe that there are significant aggravating circumstances. In addition to the two direct victims in this case, Toran put his own young daughters in harm's way by firing multiple shots into the van in which they were restrained in close proximity to Sharon. Even the pleas from his two-and-one-half-year-old daughter did not deter Toran from making the child a witness to her mother's gruesome murder at the hands of her own father.

After shooting Sharon multiple times, Toran fled the scene without any apparent concern for his children, who remained in the shot-up van with their dying mother. Further, as found by the trial court, there appears to have been a high degree of planning that went into Sharon's murder.

Toran v. State, supra.  It therefore held that the sentence was appropriate.   Toran v. State, supra. 

This contemporaneous news story provides some more information about the crimes. 

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