After a jury convicted Robert Eleck of “assault in the first
degree by means of a dangerous instrument in violation of General Statutes § 53a–59 (a)(1)”, he appealed. State v.
Eleck, 2014 WL 5139291 (Supreme Court of Connecticut 2014).
The Supreme Court began its analysis of Eleck’s argument on
appeal by explaining how the case arose:
`[Eleck] attended a party at 16 Charles
Street in Norwalk in the early morning hours of December 9, 2007. All of the
approximately twenty teens and young adults who attended were consuming
alcoholic beverages, and many were intoxicated. While inside the house, [he]
was involved in at least two verbal confrontations with one guest, Matthew
Peacock. [Eleck] also conversed on several occasions with another guest, Simone
Judway.’
`Shortly after 2:30 a.m., outside the
house, [Eleck] and Peacock engaged in a physical altercation that included
punching and grappling. Three other guests, including Zachary Finch, joined the
fight to help Peacock. When the combatants were separated, both Peacock and
Finch discovered that they had suffered stab wounds.’
`[Eleck] subsequently was arrested and
charged with assault in the first degree with a dangerous instrument in
violation of § 53a–59 (a)(1) in connection with the injury to Peacock
and assault in the second degree in violation of General Statutes § 53a–60(a)(2) in connection with the injury to Finch. Following a trial to the
jury, [he] was convicted of assault in the first degree regarding the assault
on Peacock and acquitted of assaulting Finch. Because [Eleck’s] assault
conviction involved the use of a dangerous instrument, he faced a mandatory
minimum sentence of five years. He was, in fact, sentenced to the mandatory
minimum sentence of five years incarceration with an additional ten years of
special parole.’
State v. Eleck, supra
(quoting State v. Eleck, 130 Conn. App. 632, 633, 23 A.3d 818 (Connecticut Appellate Court 2011)).
The Supreme Court goes on to explain that Eleck appealed
from the trial court’s
judgment of conviction to the Appellate
Court, claiming . . . the trial court improperly ruled that a printed copy of
an online conversation between [Eleck] and a person utilizing Judway’s Facebook
account, which [Eleck] attempted to submit into evidence for the
purpose of impeaching Judway's testimony, had not been properly authenticated.
. . .
The Appellate Court disagreed with [Eleck]
and, accordingly, concluded that the trial court had not abused its discretion
in declining to admit the document into evidence. . . . This appeal
followed. . . .
State v. Eleck, supra.
The Supreme Court goes on to note that the Appellate Court’s
opinion also “reveal[ed] additional facts and procedural history that are
relevant to” Eleck’s claim on appeal to the Supreme Court. State
v. Eleck, supra.
`As a witness for the state, Judway
offered key testimony that, prior to the physical altercation, [Eleck] had told
her that "if anyone messes with me tonight, I am going to stab them.” Subsequently,
during cross-examination, defense counsel sought to impeach Judway's
credibility by asking her whether she had spoken with [Eleck] in person since
the incident. She responded that she had seen [him] in public but had not
spoken to him in person, by telephone or by computer. Defense counsel then showed Judway a printout purporting
to show an exchange of electronic messages between [Eleck’s] Facebook account and another
account under the user name "Simone Danielle." Judway identified the user name
as her own, but denied sending the messages to [Eleck]. She also testified that
someone had "hacked" into her Facebook account and changed her password "two
[to] three weeks' ago such that she had been unable to access it subsequently."
On the following day, during [Eleck’s]
testimony, his counsel offered into evidence [his] Facebook printout containing messages purportedly from
Judway. The state objected on the grounds that the authorship of the messages
could not be authenticated and [thus] the document was irrelevant. In response,
to authenticate the document, [Eleck] testified that he downloaded and printed
the exchange of messages directly from his own computer.’
`He also advanced testimony that he
recognized the user name, “Simone Danielle,” as belonging to Judway because she
had added him as a Facebook “friend”
a short time before he received the message. He testified that the “Simone
Danielle” profile contained photographs and other entries identifying Judway as
the holder of that account. Finally, he testified that when he logged in to his
Facebook account after the previous day's testimony, user “Simone Danielle” had
removed him from her list of Facebook “friends.” [His] counsel then argued that
based on this testimony and Judway's identification of her user name, there was
a sufficient foundation to admit the document for the jury's consideration.’
State v. Eleck, supra.
The Supreme Court then notes that as the Appellate Court
explained in a footnote,
the printout of the online conversation
between [Eleck] and `Simone Danielle’ proffered by [Eleck] consisted of the
following:
`Simone Danielle: Hey I saw you the
other day and I just want to say nice bike.’
`[The Defendant]: why would you wanna
talk to me.’
`Simone Danielle: I'm just saying that
you have a nice bike that's all. The past is the past.’
`[The Defendant]: yup thanks.’
`Simone Danielle: No problems. . . .’
State v. Eleck, supra. The Supreme Court went on to explain
that, as the Appellate Court noted, “`[t]he [trial] court . . . sustained the state's objection on the ground [Eleck] had not authenticated that the messages were written by Judway
herself.’” State v. Eleck, supra.
It also explained that Eleck was not claiming, on appeal to
the Supreme Court, that
the trial court's refusal to admit the
proffered document infringed on any of his constitutional rights. Instead, [he]
claims that the ruling is evidentiary in nature.
State v. Eleck, supra.
In other words, Eleck claimed the messages should not have
been admitted because they had not been adequately authenticated, as required
by Connecticut evidence law. In its
opinion in the case, the Appellate Court explained that
[i]t is well established that
[a]uthentication is . . . a necessary preliminary to the introduction of most
writings in evidence. . . . In general, a writing may be authenticated by a
number of methods, including direct testimony or circumstantial evidence. . . .Both
courts and commentators have noted that the showing of authenticity is not on a
par with the more technical evidentiary rules that govern admissibility, such
as hearsay exceptions, competency and privilege. . . .
Rather, there need only be a prima
facie showing of authenticity to the court. . . . `Once a prima facie showing
of authorship is made to the court, the evidence, as long as it is otherwise
admissible, goes to the jury, which will ultimately determine its
authenticity.’ State v. Garcia, 299
Conn. 39 (Supreme Court of Connecticut 2010).
State v. Eleck, supra (Appellate
Court of Connecticut).
Authentication is governed by § 9-1(a) of the Connecticut Code of Evidence, which says “[t]he requirement of authentication as a
condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the offered evidence is what its proponent claims it to
be.” In its opinion, the Appellate Court found Eleck had failed to
authenticate “the authorship of certain messages generated via Judway’s
Facebook account” for reasons it proceeded to outline. State
v. Eleck, supra (Appellate Court of Connecticut).
The Appellate Court went on to explain that in this case,
Eleck offered evidence as to
the accuracy of the copy and Judway's
connection to the Facebook account. He also proffered evidence that Judway had
added him to her list of Facebook `friends’ shortly before allegedly sending
the messages, and then removed him as a friend after testifying against him at
the trial. Specifically in regard to authorship, however, the direct testimony
of the purported author, Judway, contradicted [Eleck’s] assertion.’
`While admitting the messages were sent
from her Facebook account, she simultaneously denied their authorship. She also
suggested she could not have authored the messages because the account had been
`hacked.’ Although this suggestion is dubious under the particular facts at
hand, given that the messages were sent before the alleged hacking of the
account took place, Judway's testimony highlights the general lack of security
of the medium and raises an issue as to whether a third party may have sent the
messages via Judway's account. Consequently, we agree with the trial court that
the fact Judway held and managed the account did not provide a sufficient
foundation for admitting the printout, and it was incumbent on [Eleck], as the
proponent, to advance other foundational proof to authenticate that the
proffered messages did, in fact, come from Judway and not simply from her
Facebook account.
State v. Eleck, supra (Appellate
Court of Connecticut).
For these and other reasons, the Appellate Court held that
the trial judge did not err in excluding the printout “documenting electronic
messages purportedly sent to him by Judway from her Facebook account.” State v. Eleck, supra (Appellate Court
of Connecticut).
And that was the issue Eleck asked the Supreme Court
to review and reverse. Instead of
re-examining the propriety of excluding the evidence Eleck sought to admit, the
Supreme Court focuses on whether the exclusion of the evidence was “harmful,”
i.e., whether it negatively impacted Eleck’s ability to present a defense at
trial. State v. Eleck, supra.
As Wikipedia explains, a “harmless error is a ruling by
a trial judge that, although mistaken, does not meet the burden
for a losing party to reverse the original decision of the trier of fact
on appeal, or to warrant a new trial.”
So the Supreme Court approached the issue by “assuming, without
deciding, that the exclusion of the proffered evidence was improper”, and then
went on to decide whether the error was “harmless.” State
v. Eleck, supra.
It began its analysis of that issue by explaining that Eleck
claimed the
evidentiary error was improper because
the online conversation impeached Judway. Specifically, [he] claims Judway
denied having any contact with [him] between the night of the assault and the
day of trial and that this conversation impeached that testimony. [Eleck’s]
position is that the failure to impeach Judway likely affected the jury's verdict
because Judway's testimony suggested [he] was prepared to stab anyone who
`messes with’ him, which suggested premeditation on the part of [Eleck]. In
addition, [he] notes that both the state, during its closing argument, and
Detective James O'Leary, of the Norwalk Police Department, the officer who
interviewed the witnesses in this case, believed Judway was the most reliable
witness because she did not smell of alcohol and wrote out her own statement.
The state argues that any impropriety
was harmless. The state claims its case against [Eleck] was strong, as multiple
witnesses identified [him] as the person who initiated the physical altercation
with Peacock, at least two witnesses saw [him] wrap Peacock in a bear hug,
another saw [Eleck] holding a knife at the end of the fight, and several
witnesses observed Peacock was bleeding soon after the confrontation with [Eleck].
The state also notes that [Eleck]
admitted to using a knife during the fight. Further, the state claims, the
substance of the conversation between Judway and [Eleck] did not touch on the
details of the case or Judway's impending testimony and, thus, admission of the
conversation would likely have little impact on the jury's determination on
Judway's credibility. Finally, the state notes that [Eleck] presented testimony
to the jury indicating he had received messages from a Facebook account maintained by
Judway and that, during closing arguments, [he] used this testimony to attack
Judway's credibility. It is the state's position that the introduction of the
printout of the Facebook conversation between [Eleck] and Judway would, thus,
have been very unlikely to have had a substantial impact on the jury's verdict.
State v. Eleck, supra.
The Supreme Court therefore agreed with the prosecution:
[Eleck] has not shown
that the exclusion of the proffered evidence had a substantial impact on the
jury's verdict. In addition, the state's case was strong. Numerous witnesses
not only identified [Eleck] as the person who initiated the contact with
Peacock, but also noticed after the contact that Peacock was bleeding.
Further, [Eleck] admitted using a knife
during the fight. Given that [he] presented evidence in the form of his own
testimony that he was contacted by Judway and argued during closing argument
that her denial of authorship should be taken into account when judging
Judway's credibility, it is doubtful that the admission of the printout would
have had any additional impact. We conclude, therefore, that assuming,
without deciding, that there was any evidentiary impropriety, the ruling was
harmless.
State v. Eleck, supra.
You may wonder why the Supreme Court took this approach,
i.e., did not specifically decide if the exclusion of the printout was correct,
or incorrect, but, instead, assumed it was error and therefore only addressed
whether the error was harmless. It does not explain why it did this. I do not
know if this had any impact on that decision, but in tis opinion the Appellate
Court spent some time discussing, basically, how complicated the authentication
of online content, including messages, can be, at least when compared to
authenticating hard copy content. So,
perhaps the Supreme Court thought it was prudent to defer that issue until more
case law had developed in this area . . . .
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