Murder, Text Messages and Authentication

After a jury convicted him of felony murder in violation of Nebraska Statutes § 28-303 and use of a deadly weapon to commit a felony in violation of Nebraska Statutes § 28-1205, and the trial judge sentenced him “to consecutive terms of imprisonment for life for the murder conviction and 25 to 30 years for the use of a weapon conviction”, Ryan M. Elseman appealed.  State v. Elseman, 2014 WL 26589 (Nebraska Supreme Court 2014). The news story you can find here provides some details about the crimes.  And this story essentially provides a narrative account of the crime.

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

Elseman was among a group of people who were at the home of Nicholas Ely on July 6, 2011. Elseman's girlfriend's sister, Emily G., was also part of the group. Elseman left the house with Emily, Ely, and Marqus Patton with a plan to go swimming at Patton's apartment complex. 

The four were picked up by Drake Northrop. Emily had bought marijuana from Winters, and she suggested the group go to Winters' house to get some marijuana. At some point, it was decided [they] would rob Winters.

Emily directed Northrop to Winters' house, and they arrived there around noon. There was no response when Emily knocked on Winters' door, but a friend of Winters arrived at the door. Emily went into the house with the friend after she told him she was there to buy marijuana. 

Once inside, Emily sent Elseman a text message saying, `I'm in.’ She sent another message saying that Winters had a friend with him and that the doors were open.

Northrop, Elseman, Ely, and Patton entered the house through an open door. Elseman and Patton had guns. The men walked into a room occupied by Winters and his friend. Elseman pointed his gun and said, `You know what it is.’ When Winters charged Elseman, Patton used his gun to hit Winters in the head. 

Winters stumbled but then pushed Patton up against a wall. Patton told Elseman to shoot Winters, and Elseman did. After the shots were fired, Northrop, Elseman, Ely, and Patton ran out of the house and drove away, leaving Emily behind. Northrop dropped the other three off at Patton's apartment.

State v. Elseman, supra.  Winters “died as a result of the gunshot wounds”, which led to the charges against Elseman.  State v. Elseman, supra. 

Much of the evidence the prosecution presented at Elseman’s trial involved text messages.  For example, Emily testified that while the group was driving to

Winters' house, she was talking to her sister on a cell phone and overheard others in the car talking about a robbery. She testified she had been told to send a text message to let Elseman know when she got into the house and to let him know whether the doors were open and how many people were in the house. 

Emily could not recall whether it was Elseman or someone else who had told her to send the text messages.

Emily testified that although she heard what sounded like gunshots when she was in the basement of Winters' house, she was not in a position to see the shooting. After hearing the gunshots, she saw Winters was holding his neck and she saw blood.

She testified she left the house and as she was walking away, received a text message from Elseman telling her to `get out of there because there was like a lot of cops around.’ She testified that Elseman also texted to her a telephone number she was to call to have `somebody that wouldn't snitch pick [her] up.’ 

Before Emily could meet up with that person, the police stopped her . . . and eventually took her to the police station.

State v. Elseman, supra. 

Certain evidentiary issues arose during Emily’s testimony when the prosecutor asked

about the cell phone she used to send text messages to Elseman. Emily testified she had Elseman's number programmed into the cell phone, but did not recall his number. After establishing that Emily could refresh her memory of Elseman's number by looking at her cell phone, the State gave her the phone to check her contact list for Elseman's number.

When the State asked Emily what Elseman's number was, Elseman objected based on foundation and argued there was no evidence regarding the chain of custody of the cell phone. The court initially sustained the objection but overruled it after the State argued that the cell phone was being used only for the purpose of refreshing Emily's memory of Elseman's telephone number. 

Emily then recited Elseman's number based on her memory that had been refreshed by viewing the contact list on the cell phone.

State v. Elseman, supra. 

The prosecution also presented the testimony of law enforcement officers who were involved in collecting and/or analyzing the digital evidence:

Nicholas Herfordt, an Omaha police officer, testified regarding his training with respect to extracting data from cell phones. As part of the investigation of Winters' killing and the attempted robbery, Herfordt recovered data from the cell phones of the parties, including Emily, who were involved in the incident. 

Herfordt testified regarding the procedures he used to extract data. Herfordt stated on cross-examination that the information he could retrieve from a cell phone would not indicate who had made or received a particular call.

Donald Ficenec, a sergeant with the Omaha Police Department, testified that as part of the investigation of Winters' death, [he] compiled telephone records that had been obtained for various persons involved in the case. Such records showed the date and time of voice calls made between cell phones, but did not show the content of such calls. With regard to text messages, the records showed the content as well as the date and time.

Ficenec testified regarding the date, time, and duration of certain telephone calls and the date, time, and content of text messages that were relevant to this case. [He] testified regarding text messages sent between Emily's and Elseman's cell phones around the time that Winters was shot. 

Elseman made foundation objections to certain questions regarding the content of text messages sent from Elseman's cell phone to Emily's cell phone. The court overruled the objections.

On cross-examination, Ficenec stated that although the telephone records could tell the content of text messages and the date and time the messages were sent, the records did not name the specific person who sent and received the messages, only the telephone numbers from which and to which the messages were sent.

Dave Schneider, a police detective on the team that investigated Winters' death, testified that he obtained a search warrant for Emily's cell phone and had looked through the contents of the phone. He documented certain text messages that he observed on Emily's cell phone, particularly those around the time Winters was shot. He noted certain messages to a person listed in Emily's contact list under the name `Ryan.’

Elseman objected based on foundation to the State's questions regarding the content of text messages sent from Emily's cell phone to the contact listed as `Ryan’ and from the contact listed as `Ryan’ to Emily's cell phone. The court overruled Elseman's objections.

State v. Elseman, supra. 

On appeal, Elseman argued, among other things, that the trial judge erred when he “admitted evidence regarding the content of text messages sent to and from Elseman's cell phone around the time of the killing because the . . . evidence was admitted without satisfying the authentication requirement of” Rule 901(1) of the Nebraska Rules of Evidence.  State v. Elseman, supra. 

As I have explained in prior posts, for the prosecutor or defense attorney to be able to introduce evidence at trial, the proponent of the evidence must “authenticate it”.  Rule 901(1) of the Nebraska Rules of Evidence implements that requirement by stating 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.” 

The Supreme Court began its analysis of Elseman’s argument by noting that it had

stated that rule 901 does not impose a high hurdle for authentication or identification. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (Nebraska Supreme Court 2011). A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity. State v. Taylor, supra. 

If the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of rule 901(1). State v. Taylor, supra.

State v. Elseman, supra. 

The court then explained that, here, the evidence about which Elseman

complains includes Emily's testimony regarding the content of text messages sent between herself and Elseman near the time Winters was killed. He also complains of evidence about which police investigators testified regarding text messages found on Emily's cell phone. 

Elseman's concern stems from the fact that it could not be ruled out that some other person sent or received the messages while using Elseman's cell phone.

State v. Elseman, supra. 

The Supreme Court then noted that it had addressed a similar argument in State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (Nebraska Supreme Court 2011), and held that emails could be “authenticated by evidence such as” the

e-mail address[, t]he signature or name of the sender or recipient in the body of the e-mail, [e]vidence that an e-mail is a timely response to an earlier message addressed to the purported sender[, or] the contents of the e-mail and other circumstances [that] may be utilized to show its authorship.

State v. Pullens, supra. The Pullens court also held that“[t]he possibility of an alteration or misuse by another of the e-mail address generally goes to weight, not admissibility.” State v. Pullens, supra.  For the difference between weight and admissibility of evidence, check out this blog post.

The court then applied these standards to the evidence in this case, noting, first, that

Emily testified regarding Elseman's telephone number based on her own memory, which was refreshed by looking at her cell phone. She also testified from her own memory regarding the content of text messages between herself and Elseman. 

It was clear that the foundation for Emily's testimony was her own memory regarding messages she had sent to and received from Elseman. Rule 901, upon which Elseman relies on appeal, did not prohibit Emily from testifying regarding her memory of messages sent between herself and Elseman.

State v. Elseman, supra. 

The Supreme Court then explained that Elseman also

complains of the testimony of . . . Herfordt, Ficenec, and Schneider. Herfordt testified only to the techniques he used to extract data from Emily's cell phone; he did not testify regarding the content of text messages, and Elseman made no objection based on foundation or authentication regarding Herfordt's testimony. 

Elseman notes and we recognize that Herfordt testified that data extracted from the cell phone did not indicate who actually sent the messages. The jury was allowed to take this testimony into consideration. Elseman shows no error in the court's allowing Herfordt's testimony.

State v. Elseman, supra. 

Finally, the Supreme Court noted that Ficenec and Schneider testified regarding the

content of text messages extracted from Emily's cell phone. The two witnesses testified regarding the content of text messages and the telephone numbers from which and to which messages were sent. 

Although the number from which messages were sent and received was the number that Emily identified as belonging to Elseman, neither law enforcement officer testified that it was Elseman who sent the message, and both conceded that the data extracted from the cell phone could not verify who sent the message. The officers provided testimony regarding how they obtained the information extracted from the cell phone.

State v. Elseman, supra. 

The court then found that because both officers testified regarding

messages sent between only certain numbers and did not purport to identify the specific persons who sent the messages, we determine that rule 901, upon which Elseman relies on appeal, did not prohibit the court from admitting such testimony. 

For purposes of rule 901, there was sufficient testimony to establish that the evidence was what the State claimed it to be -- messages sent between certain telephone numbers. It was then within the jury's province to determine whether it could be reasonably inferred that Elseman sent or received the messages.

State v. Elseman, supra. 

Since the Supreme Court found that the “authentication requirement of rule 901 was met,” it also found that the trial judge “did not err on the basis of rule 901 when [he] admitted testimony by Emily and by the police officers regarding the content of the text messages.”  State v. Elseman, supra.  It therefore rejected Elseman’s first argument on appeal. State v. Elseman, supra. 

Since the court also rejected his other arguments, it affirmed Elseman’s convictions and sentences.  State v. Elseman, supra.