When a Colorado jury found Roger Julius Glover “guilty of
first degree (after deliberation) murder; solicitation to commit first degree
(after deliberation) murder; and two crime of violence counts”, he
appealed. People v. Glover, 2015 WL 795690 (Colorado Court of Appeals 2015). You can read more about the murder in the stories you can
find here and here.
The Court of Appeals begins its opinion by explaining how
the prosecution arose:
[Glover], who went by the name
`Brooklyn,’ was the thirty-six-year-old `leader’ of a `street family’ of
homeless and runaway teens and young adults. The dead body of one of those
young adults was discovered by the police in a gully next to an apartment
complex; the victim had suffered numerous `chop’ and stab wounds to his head
and neck, and one of his fingers was missing.
On the day the victim's body was found,
nineteen-year-old Jordan Rowland was arrested on a wholly unrelated matter. In
his pocket, however, police found the victim's missing finger.
People v. Glover, supra.
At Glover’s trial, the prosecution’s theory was that
Rowland killed the victim at [Glover’s]
behest. According to several teens in the street family, [Glover] had become
angry with the victim because the victim was a snitch, owed him money, and
would not stop commenting on [Glover’s] Facebook posts. Three teens testified
that [Glover] had placed a `green light] on the victim's head, meaning [he]
wanted the victim killed. A.L. related that he was initially supposed to carry out
the `green light’ but that he did not want to do it. K.M. related that she had
been present when [Glover] ordered her boyfriend, Rowland, to kill the victim
and to bring him evidence that the `job was done.’ According to her, [Glover]
threatened to kill her and Rowland if he did not comply; Rowland went to find
the victim on the evening of the murder and told her he was going to `work
everything out’; she saw Rowland the next morning without the victim; and
Rowland told her he had `taken care of’ the victim and `had evidence that the job
was done.’
In addition to this evidence, the
prosecution presented conversations recorded on [Glover’s] Facebook account. In
one of the posts from [his] account, he threatened to `beat the shit outta’ the
victim and told him `its over for u’ In another conversation between [Glover]
and another teen, R.D., R.D. asked `[I]s there still a green light on [the
victim's] head[?],’ to which [Glover] responded, `hell yeah I need ur number
asap.’
People v. Glover, supra.
In a footnote that follows the last sentence, above, the court points
out that “[t]he teens and young adults accessed Facebook at a local library or
via cellular phones with Internet access.”
People v. Glover, supra.
After he was convicted, Glover was sentenced to “life
imprisonment without the possibility of parole”. People
v. Glover, supra. He also, as noted above, appealed.
On appeal, Glover argued that the trial judge “erroneously
admitted printouts of communications relating to the murder from his Facebook
account.” People v. Glover, supra.
More precisely, he claimed the printouts should not have been admitted
because they (i) were not properly authenticated and/or (ii) were inadmissible hearsay. People v. Glover, supra. The court analyzed each issue, in order. People v. Glover, supra.
The Court of Appeals began its analysis with authentication,
explaining that
[a]uthentication is a condition
precedent to admissibility of physical evidence that is satisfied by evidence
sufficient to support a finding that the evidence in question is what its
proponent claims. [Colorado Rule of Evidence (“CRE”)] 901(a); see People
v. Crespi, 155 P.3d 570 (Colorado Court of Appeals 2006) (trial court
should admit physical evidence if a reasonable jury could decide that it is
what the proponent claims it to be).
The burden to authenticate `”is not
high—only a prima facie showing is required,” and a “district court's role is
to serve as gatekeeper in assessing whether the proponent has offered a
satisfactory foundation from which the jury could reasonably find that the
evidence is authentic.”’ U.S. v. Hassan, 742 F.3d 104 (U.S.
Court of Appeals for the 4th Circuit 2014) (applying rule identical to CRE
901) (quoting U.S. v. Vidacak, 553 F.3d 344 (U.S. Court of Appeals
for the 4th Circuit 2009)).
A proponent of evidence may establish
the authenticity of evidence in numerous ways. CRE 901(b)(1). In some
circumstances, proffered evidence can be self-authenticating. See CRE
902.
People v. Glover, supra.
It went on to point out that under CRE 902(11),
extrinsic evidence of authenticity is
not required with respect to a business record, as defined by CRE 803(6), if
[the record is] accompanied by an affidavit of its custodian or other qualified
person . . . certifying that the record
(a) was made at or near the time of the
occurrence of the matters set forth by, or from information transmitted by, a
person with knowledge of those matters;
(b) was kept in the course of the
regularly conducted activity; and
(c) was made by the regularly conducted
activity as a regular practice.
People v. Glover, supra.
At Glover’s trial, the prosecution produced an affidavit
from a Facebook records custodian stating that
• `[T]he records are basic subscriber
information, IP logs, messages, photos, and expanded content for’ the profile
pages linked to defendant; and’
• `The records provided were made and
kept by the automated systems of Facebook in the course of regularly conducted
activity as a regular practice of Facebook. The records were made at or near
the time the information was transmitted by the Facebook user.’
People v. Glover, supra.
The trial judge held that “the Facebook printouts were
self-authenticating business records under CRE 902(11),” analogizing them to
phone records. People v. Glover, supra.
As to the latter, the judge found that
`there is a record made on the computer
that John Jones has sent Mary Smith a message on a particular day. And it does
appear to the Court, just like in phone records, Facebook makes these records.
That is[,] this text is reported on a computer program as part of the regularly
conducted activity, and regular practice of Facebook. In fact, that is their
business. Their business is to allow users to transmit their thoughts and have
those thoughts saved, generally back and forth, as part of their business.’
People v. Glover, supra.
The Court of Appeals also explained that the "other requirements" of
CRE
902(11) and 803(6) -- i.e., that the record be made at or near the
time of the matters recorded in it from information transmitted by a person
with knowledge of those matters, and as a regular business practice --
presented `more difficult’ questions for the court. Ultimately, however, it
concluded that one cannot exclude a Facebook entry, even though the entry
itself comes in and is made by an individual completely separate from Facebook,
the business. An individual comes in and is recording their messages[,] typing
their messages to go to someone else. Facebook is keeping a recorded, is
keeping that recorded message as part of their Facebook site. . . .
People v. Glover, supra.
It went on to hold that in this case,
even though an arguable business
relationship exists between Facebook and its users, there was no evidence
presented that Facebook substantially relies for any business purpose on
information contained in its users' profiles and communications. Thus, as [Glover]
correctly points out, the Facebook printouts were neither authenticatable
under CRE 902(11) nor admissible under CRE 803(6).
People v. Glover, supra.
The court also pointed out, though, the prosecutor in this case
claimed the printouts
were records of Facebook containing communications to and from [Glover]. To
properly authenticate the printouts, the prosecution had to make two separate
showings: (1) the records were those of Facebook and (2) the communications
recorded therein were made by [him].
People v. Glover, supra.
It also noted that an appellate court, like the Colorado Court of
Appeals, can affirm a trial judge’s ruling on a premise different from the one
the trial judge relied on, if evidence in the trial record supports the ruling.
People v. Glover, supra.
It then proceeded to do just that.
People v. Glover, supra.
As to the first “showing” needed to authenticate the
records, the court pointed out that
the lead detective testified that he
had subpoenaed records of [Glover’s] Facebook activity, and that Facebook
complied with the subpoena and sent the detective compact discs containing the
requested records. A police volunteer then sorted through these records to
determine if they contained anything relevant to the murder. The printout
presented to the court and the jury was of the relevant pieces of the electronic
record. Further, the court admitted the unchallenged affidavit of a records
custodian of Facebook certifying that the records were from the account linked
to [Glover] and stating that they had been created `at or near the time the
information was transmitted by the Facebook user’ and had been kept by
Facebook's `automated system.’ Under the circumstances, we conclude that
sufficient evidence was presented under CRE 901(b) upon which to conclude
that the printouts contained content from Facebook.
People v. Glover, supra.
It then took up the issue as to whether the prosecution
authenticated the records by linking them to Glover, noting that “the primary
authentication issue posed by the admission of Facebook records appears to be
the identity of the author of recorded communications”. People v. Glover, supra.
On that point, the Court of Appeals quoted from the Texas Court of Appeals’
decision in Campbell v. State, 382
S.W.3d 545 (2012):
`First, because anyone can establish a
fictitious profile under any name, the person viewing the profile has no way of
knowing whether the profile is legitimate. Second, because a person may gain
access to another person's account by obtaining the user's name and password,
the person viewing communications on or from an account profile cannot be
certain that the author is in fact the profile owner.’
People v. Glover, supra (quoting Campbell v. State, supra).
The Colorado Court of Appeals found that there was evidence
in the trial record that the Facebook comments at issue were linked to Glover:
At trial, various teens admitted to
making the statements recorded on the printouts. And, as to [Glover], prior to
admission of the records, the prosecutor elicited the following information
regarding [his] identity as the author of messages attributed to him on the
account registered to `Julius Glover’ (the only account from which printouts
were admitted):
• The account was registered to `Julius
Glover,’ [Glover’s] middle and last name;
• There were photos of [Glover] on the
profile of the account;
• The detective testified that K.M. had
identified the account as belonging to [Glover] and as one on which she had
communicated with him;
• [Glover] had provided his actual
phone number when creating the account, which was verified by Facebook;
• R.D. testified that he spoke with [Glover]
regarding the murder on Facebook and in person; he remembered making and
receiving most of the communications in question; and, he never thought that he
was talking to someone other than [Glover]; and,
• [He] went by the nickname `Brooklyn,’
a name people, including the victim, used to refer to him in the Facebook
conversations.
People v. Glover, supra.
The court also noted there was “no evidence” suggesting
that anyone else ever used Glover’s account.
People v. Glover, supra.
It therefore held that the trial judge correctly held that the records
were properly authenticated. People v. Glover, supra.
It then took up Glover’s final argument,
i.e., that “the Facebook records were inadmissible hearsay.” People v. Glover, supra. As Wikipedia explains, hearsay `is `an out-of-court
statement introduced to prove the truth of the matter asserted therein.’" Since hearsay is, in effect, second-hand
evidence, courts have created rules that govern when it is, and is not,
admissible at trial.
Here, the Court of Appeals explained that the “statements in
the Facebook printout which are at issue here were made in three contexts”,
i.e.,
(1) Defendant posted a status update
using the victim's name and stating `didnt i tell you to stay off my fuckn post
yesterday? but u dont listen so if i c u today imam beat the shit outta u. i
dont wanna talk n im not accepting any apologies. i told u to mind your fuckin
buisiness and fall bacc but as soon as [E.E., another street teen] comments on
my post hea u go so now its over for u.’
(2) R.D. sent a message to defendant
stating `hey found some info on [the victim] can i get a go head on that red
light or do you want me to chill and jus wait for u to do it fam.’ The next
day, defendant responded with `Yoo,’ and R.D. replied `what up og I meetin some
people tomarrow to find out the info on [the victim] is there still a green
light on his head?’ Defendant responded, `hell yeah I need ur number asap’; and
(3) The day after the murder, R.D. and
defendant started a conversation that continued, on and off, for several days.
During that conversation:
• R.D. stated that someone named John
said `he and a homie would take care of [the victim]’ and that he was `learnin
more now,’ to which defendant responded `wat? ? ? ? ? ?’
• Three days after the murder, R.D.
told defendant that `they got [Rowland] bro,’ to which defendant responded,
`ok.’ R.D. asked defendant, `so tell me brook what do we do now[?],’ to which
defendant responded `we don't do shytt we juss chill.’ R.D. replied, `okay
that's what i have been doing these pigs think i have something to tell but i
don't drop dimes like [E.E.]’; and,
• R.D. and defendant agreed to `drop’
E.E., who was a `snitch’ and had been talking to police; similarly, defendant
told R.D. to `stop fuckin wit’ another woman who was `going around sayin i
[defendant] had sumthn to do with [the victim's] death.’
People v. Glover, supra.
The Court of Appeals began its analysis of the hearsay issue
by explaining that under
CRE 801(d)(2)(A), a statement made by a
party is not hearsay if it is offered against that party. CRE 801(d)(2)(A). To
admit a statement under this rule, the proponent must prove by a preponderance
of the evidence that it was the opposing party who made the statement. .
. .
Here, as noted earlier, the court
required the prosecution to prove the account belonged to [Glover] and
that [he] authored the messages in the printout. Although it did not explicitly
reference the preponderance of evidence standard, its conclusions indicate that
it was convinced by the evidence that both of these conditions were satisfied.
Consequently, we perceive no error in the admission of [Glover’s] statements.
People v. Glover, supra.
The court went on to note that with regard to statements
made by "others" in the records,
they were not
hearsay because they were admitted to give context to defendant's
statements. See People v. Arnold, 826 P.2d 365 (Colorado Court
of Appeals 1991) (Statements `offered for the sole and limited purpose of
putting the responses of the defendant in context and making them
understandable to the jury, and not for the truth of their content’; with
context statements, `reliability or truth is not at issue. The only pertinent
fact is that they were made’). . . .
Consequently, we conclude, albeit on
grounds not articulated by the trial court, that the printouts of [Glover’s]
Facebook were properly admitted over [his] hearsay objection. objection.
People v. Glover, supra.
For these and other reasons, the Court of Appeals affirmed Glover’s
conviction. People v. Glover, supra.
No comments:
Post a Comment