Assault by Means of a Dangerous Instrument and the Facebook Messages

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 . . . .