This post examines an opinion from the Court of Appeals of North Carolina: State v. Ford, 782 S.E.2d 98 (2016). The opinion begins by explaining that on
10 September 2012, a grand jury in
Person County indicted defendant
Antonio Delontay Ford on charges of involuntary manslaughter and
obstruction of justice, in regard to the death of Eugene Cameron. The matter came on for trial
on 23 July 2014 in Person County Superior Court, the Honorable W. Osmond Smith,
III, Judge presiding.
The evidence presented at trial tended
to show that on 27 May 2012, at 11:00 a.m., Deputy Adam Norris, of the Person
County Sheriff's Department, responded to a residence located at 1189 Semora
Road in Roxboro, based on a report of a possibly deceased person. At the
residence, under a carport, Deputy Norris observed the body of an adult male,
later identified as Eugene Cameron, lying face up in a pool of blood. The victim's
clothes had been ripped off and there were `severe lacerations to the
[victim's] inner right arm and the biceps [sic] area, between that and the
triceps.’ Most of the blood appeared to have come from lacerations to the
victim's inner biceps. Also, there were paw prints in the blood pool
surrounding the body. The victim had no pulse, and the body exhibited partial
rigidity.
Detective Michael Clark and other
deputies with the Person County Sheriff's Department, also reported to the
scene on 27 May 2012. Detective Clark spoke with the homeowner, John Paylor, by
cell phone. When informed that the victim appeared to have been killed in a dog
attack, Paylor suggested that Detective Clark look at the dog next door.
Detective Clark and other law
enforcement officers walked to the next door residence and observed a `pretty
heavy’ chain around a light pole in the back yard. They spoke with defendant,
who acknowledged owning a dog named DMX. DMX was removed from defendant's home
and turned over to Animal Control. Dried blood, observed on areas of DMX's
body including his chest and muzzle (mouth) area, was collected and samples
sent for DNA testing. DNA samples were also taken from the victim's pants,
shirt, belt, and cell phone case. DNA taken from punctured cloth from the
victim's pants confirmed the presence of DMX's DNA.
State v. Ford, supra.
The opinion goes on to explain that during the
investigation,
it was revealed that DMX had been
allowed to run freely in the neighborhood and that there had been at least three
other dog-bite incidents involving DMX. Kennard Graves, who lived at 1253
Semora Road, testified that he was a life-long resident of Person County and
that he had known defendant `all my life.’ Graves had been familiar with
defendant's dog, DMX, for `[a]bout 6 or 7 years.’ Graves had five dogs of his
own. Graves testified that he had observed DMX running loose in the
neighborhood plenty of times, and in the month prior to Eugene Cameron's death,
DMX had attacked one of Graves's dogs in Graves's backyard.
Tyleik Pipkin, who was 23 years old at
the time of trial, testified that on 20 October 2007, he was talking with
defendant, whom he knew by the nickname `Flex.’ Defendant was holding his dog,
but the dog got loose. Pipkin and an acquaintance ran and tried to hop on top
of a car. When Pipkin fell off, defendant's dog tried to reach Pipkin's neck,
and while they struggled, the dog bit Pipkin under his left bicep. Pipkin
described the dog as `very aggressive.’ Pipkin identified the dog
pictured in one of the State's exhibits (Exhibit 60) as looking like the same
dog that attacked him. State's Exhibit 60 was a picture of DMX.
Michael Wix was employed with the
Durham County Department of Animal Control. On 20 October 2007, he responded to
a 9–1–1 call reporting multiple people on Piper Street bitten by a dog. Upon
arrival, Officer Wix `met [defendant] there who at the time was trying to
secure DMX, who was running loose on Piper Street.’ Defendant identified the
dog as DMX, which Officer Wix noted was a red and white male pit bull. In his
report on the incident, Officer Wix wrote that defendant had let his dog loose,
the dog bit two people, after which defendant was able to capture the dog. But
thirty minutes later, defendant's dog was again running loose on Piper Street.
Officer Wix reported that defendant appeared to be intoxicated and that when
Officer Wix informed defendant that DMX would have to be quarantined, defendant
became `very angry and aggressive.’
John Paylor, Jr., the homeowner of the
residence located at 1189 Semora Road where Eugene Cameron's body was found,
testified that he had lived at that address for twelve years. Paylor, a Vietnam
veteran, who had worked with the recreations department, had been a corrections
officer, and recently retired from the Department of Transportation, testified
that he and Cameron had been friends `most of my life.’ `We came up together
through school[, high school and elementary].’ Cameron would usually come to
Paylor's house on Saturdays after male choral practice at church. On 26 May
2012, Paylor spoke with Cameron by cell phone at 5:16 p.m. Paylor was at Myrtle
Beach, and Cameron was checking on Paylor's house. Paylor testified that under
his carport was a table and chairs, and that it was common for him and Cameron
to sit outside in the shade. Defendant was Paylor's next door neighbor, and
Paylor was familiar with defendant and defendant's dog, DMX.
State v. Ford, supra. If you are interested, you can read more
about the facts in this case in the news stories you can find here and here.
The court also explains that, the
night before trial began, Detective
Clark discovered a webpage hosted by www.myspace.com, with the screen name
Flexugod/7. [footnote
omitted] On the webpage, Detective Clark observed photos of defendant and
videos of defendant's dog, DMX. Detective Clark captured a `screenshot’ of a
video link entitled `DMX the Killer Pit.’ The caption associated with the video
stated `After a Short Fight, he killed that mut’ [sic]; the description read,
`Undefeated.’ The videos themselves were neither admitted into evidence nor
played for the jury; however, `screenshots’ of the video links were admitted
into evidence and published to the jury. Detective Clark testified that the
`screenshots’ of the dog depicted in the videos was the same dog seized
during the investigation.
Detective Clark also discovered a song
`posted [online] by [defendant] Antonio Ford’ about the incident under
investigation, the lyrics denying that the victim's death was caused by a dog.
Over defendant's objection, the song was played for the jury. Detective Clark
testified that he recognized the voice on the recording as defendant's. Paylor
also recognized the song played for the jury. Paylor testified that defendant often
played his music loudly, and Paylor had heard that song coming from defendant's
residence.
State v. Ford, supra.
The footnote omitted from the paragraph above explained that “[i]n crime scene
photos of defendant's residence, Detective Clark observed an award given to
defendant that referred to him by the nickname `Flex.’” State
v. Ford, supra.
The opinion also explains that the evidence introduced at
trial also included testimony
from Dr. Samuel David Simmons, a
forensic pathologist employed by the North Carolina Office of the Chief Medical
Examiner at the time Eugene Cameron's body was autopsied. Dr. Simmons
testified, without objection, to his forensic examination and his opinion as to
cause of death. He related his initial observations of the victim's body.
`[A] lot of the clothing appeared to be torn and blood soaked. . . . He had a
pair of blue jeans which were partially pulled down his legs.’ As to the
victim's injuries, Dr. Simmons testified that `the pattern is consistent with
animal bites. These would also be consistent with dog bites as well.’
Q. Based upon your, um, overall
examination of Mr. Cameron and the various injuries he had, do you have an
opinion as to which of those injuries would have been the
fatal wound or fatal injury?
A. `[Mr. Cameron's right upper arm] is
the area of fatal injury, and again from the complexity, it's hard to tell if
this was just one single bite in this particular area or multiple bites in the
same area, but there were multiple perforations of his brachial artery and the
vein that accompanies that artery.’
`The brachial artery is the main vessel
that supplies blood down from your heart to your hand, essentially. So, all of
the blood passes through your brachial artery.’ `My opinion is the cause of
death is exsanguination due to dog bites.’
State v. Ford, supra.
The prosecution also introduced the testimony of two other
expert witnesses:
Elizabeth Wictum was admitted without
objection as an expert in nonhuman forensic science and DNA analysis. Wictum,
the director of the forensic unit within the Veterinary and Genetics Lab at the
University of California Davis, testified that she compared the DNA profiles
obtained from the punctured area of the victim's pants with a swab taken from
the dog. `I got an exact match.’ Wictum testified that, according to her
calculations, the number of times this profile comes up in the dog population
is about 1 in five quadrillion.
Jessica Posto, a forensic biologist
working for the North Carolina State Crime Laboratory . . . was admitted to
testify as an expert in the field of forensic science. . . . Posto testified
that she examined hair taken from the right side of the dog's belly, hair from
under the dog's chest, hair from the left side of the dog's muzzle, and hair
from the upper left side of the dog's neck. All four samples `revealed the
presence for human blood.’ A forensic DNA analyst working in the biology
section of the Raleigh Crime Lab testified that the DNA profile from Cameron's
body matched the blood samples taken from DMX's fur.
State v. Ford, supra.
The opinion then explains that, after hearing all the
evidence, presented, the jury
returned a guilty verdict against defendant on the charge of involuntary
manslaughter both on the basis of unlawfully allowing his dog, which was over
six months old, to run at large, unaccompanied, in the nighttime, and of acting
in a criminally negligent way. . . . [I]n accordance with the jury verdict, the
trial court entered judgment against defendant on the charge of involuntary
manslaughter, sentencing defendant to an active term of 15 to 27 months.
State v. Ford, supra.
As part of his appeal, Ford argued that the trial judge
erred by admitting into evidence
two exhibits taken from the internet.
Defendant contends that the evidence was not properly authenticated under Rule 901. Specifically, defendant contends that the trial court erred in admitting
into evidence the State's proffer of two screenshots taken from a webpage
hosted by www.myspace.com with only pictures of defendant and his dog and the
publication of defendant's nickname for authentication.
State v. Ford, supra. Rule 901 of the North Carolina Rules of
Evidence is the rule that deals with authentication. As Wikipedia explains,
[c]ertain kinds of evidence, such as documentary
evidence, are subject to the requirement that the offeror provide the trial
judge with a certain amount of evidence (which need not be much and it need not
be very strong) suggesting that the offered item of tangible evidence (e.g., a
document, a gun) is what the offeror claims it is.
The court began its ruling on Ford’s authentication argument
by explaining that a
`trial court's determination as to
whether a document has been sufficiently authenticated is reviewed de novo on appeal as a question of law.’ State
v. Crawley, 217 N.C. App. 509, 515, 719 S.E.2d 632, 637 (North
Carolina Court of Appeals 2011) (citation omitted); see
generally Phillips v. Fin. Co., 244 N.C. 220, 92 S.E.2d 766
(1956) (North Carolina Supreme Court (per curiam) (holding that where
documents are not properly identified for admission into evidence, they are
properly excluded).
`Any party may introduce a photograph,
video tape, motion picture, X-ray or other photographic representation as
substantive evidence upon laying a proper foundation and meeting other applicable
evidentiary requirements.' N.C. Gen. Stat. § 8–97 (2013). Pursuant to NorthCarolina General Statutes, section 8C–1, Rule 901 (Requirement of authentication
or identification), `[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.’ N.C.
Gen.Stat. § 8C–1, Rule 901(a) (2013).
State v. Ford, supra.
The Court of Appeals went on to explain that in U.S. v. Hassan, 742 F.3d 104 (2014), the
U.S. Court of Appeals for the 4th Circuit
considered whether exhibits taken from
internet websites hosted by Facebook and
YouTube, submitted in the prosecution of two defendants, were properly authenticated.
U.S. v. Hassan, supra. . . . `The
court . . . required the government, pursuant to [Federal Rule o fEvidence] Rule 901, to prove that the Facebook pages were linked to [the defendants].’ U.S. v. Hassan, supra.
Turning to Rule 901, subdivision
(a) thereof provides that, to `establish that evidence is authentic, the
proponent need only present “evidence sufficient to support a finding that the
matter in question is what the proponent claims." See United
States v. Vidacak, 553 F.3d 344, 349 (U.S. Court of Appeals for the 4th
Circuit 2009) (quoting Fed.R.Evid. 901(a)). Importantly, `the
burden to authenticate under Rule 901 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.’ Id.
State v. Ford, supra (quoting
U.S. v. Hassan, supra (emphasis in
the original)).
The Court of Appeals went on to explain that in the Hassan case, the Fourth Circuit
upheld the trial court's determination
`that the prosecution had satisfied its burden under Rule 901(a) by
tracking the Facebook pages
and Facebook accounts to [the defendant's] mailing and email addresses via internet
protocol addresses. U.S. v. Hassan,
supra. . . .
Indeed, the prima facie showing
may be accomplished largely by offering circumstantial evidence that
the documents in question are what they purport to be. See, e.g., United
States v. Dumeisi, 424 F.3d 566, 575–76 (U.S. Court of Appeals for the 7th Circuit 2005) (holding that documents of the Iraqi
Intelligence Service were properly authenticated by circumstantial evidence and
witness testimony); . . . (United States v. Safavian, 435
F.Supp.2d 36 (U.S. District Court for the District of Columbia 2006) (`[t]he
Court need not find that the evidence is necessarily what the proponent claims,
but only that there is sufficient evidence that the jury ultimately might do
so’). . . .
State v. Ford, supra (emphasis
in the original).
The Court of Appeals then took up the issue in the Ford case, explaining that the
record reflects the trial court's
synopsis of a meeting conducted out of the presence of the jury, during which
the trial court was notified that the State sought to introduce evidence
discovered the previous night by a law enforcement officer on a social media
website. The prosecutor contended that `[t]he actual page that shows pictures
of the defendant and his name, so that we can authenticate for the jury that
this is his myspace page. It also includes the dog in question, DMX.’
`Also, within the myspage page, there
is a short video of DMX on a chain being called, although chained up, pulling
against the chain, and also a posting of a song, which the [c]ourt has
previously previewed, but talks about this case and the defendant's denial that
his dog did this, but also a lot of other references, your Honor, that would
fit the State's theory of the case that the defendant has a careless disregard
for life and for the safety of others.’
In response, defendant first moved to
suppress the recently discovered evidence based on the late notice, then
defendant argued
`that with regard to authentication,
simply because it has been said that this page or these pages are in my
client's name, do not necessarily mean that he posted any of this material. I
don't know if there has been, um, what would need to be done to trace this back
to a particular IP address or whatever at this time. So, I think authentication
would certainly be an issue that we would raise.’
State v. Ford, supra.
The opinion goes on to note that the trial judge overruled
Ford’s objections,
reasoning that the State had stated a
forecast of the foundation and a valid evidentiary purpose for the evidence and
had a good faith basis to expect the evidence to be admitted at trial. The
court noted further foundation would need to be provided when witnesses were
called. Defendant took no exception to the trial court's ruling. . . .
State v. Ford, supra.
The court then articulated its ruling, and its analysis on
this issue, noting that, at trial,
Detective Clark testified that while
investigating this case he came across a `myspace page with the name of
Flexugod/7.’ On that page he found photos of defendant and videos. Detective
Clark testified that the dog depicted on the webpage was the dog held in
custody, DMX. Detective Clark testified that during the course of his
investigation he photographed a certificate awarded to defendant, on which
defendant is referred to as `Flex.’ In the course of Detective Clark's search
on www.myspace.com, he found a video posted to another social media website,
www.youtube.com, depicting defendant's dog, DMX. The video was not played for
the jury. Detective Clark also introduced a song that he found as a result of
his internet search but did not indicate on what website the song was found.
Detective Clark testified he recognized the voice in the song as that of
defendant's. This song is the same `rap’ song we reviewed in Issue I
and determined the trial court did not err in admitting the song as relevant
and not unduly prejudicial.
On this record, the evidence is
sufficient to support a prima facie showing that the myspace
webpage at issue was defendant's webpage. While tracking the webpage directly
to defendant through an appropriate electronic footprint or link would provide
some technological evidence, such evidence is not required in a case such as
this, where strong circumstantial evidence exists that this webpage and its
unique content belong to defendant.
State v. Ford, supra.
The Court of Appeals went on to explain that the webpage
contained
content unique to defendant, whose
nickname was `Flex’ and webpage name was `Flexugod/7’: it contained pictures of
defendant; pictures of his dog, DMX; it contained video captioned `DMX tha
Killer Pit’ and another video captioned `After a Short Fight, he killed that
mut.’ Not only was the content distinctive and unique to defendant and DMX, it
was directly related to the facts in issue—whether defendant had been
criminally negligent in allowing his dangerous dog to attack and kill a man.
Thus, the trial court did not err in admitting the screenshots of the
webpage hosted by www.myspace.com as defendant's webpage.
Further, we note for defendant and for
the record that even assuming arguendo the trial court erred,
given the evidence before the jury regarding prior unprovoked attacks by
defendant's dog against both people and other dogs, the cause of Cameron's
death, the physical condition of Cameron's clothes and body, evidence of DNA
from defendant's dog found around punctures on Cameron's clothes, and Cameron's
blood found on the dog's fur, there is no reasonable possibility that, had the webpage
screenshots not been admitted, a different result would have been reached at
the trial. Accordingly, we overrule defendant's argument.
State v. Ford, supra. For these and other reasons, the court
affirmed Ford’s conviction. State v.
Ford, supra.
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