Friday, February 28, 2014

Methamphetamine, the Cell Phone and Hearsay

After he was convicted of “one count of dealing in methamphetamine as a Class A felony” in violation of Indiana Code § 35–48–4–1.1(b)(3)(B)(iii), Shane L. Duckworth appealed.  Duckworth v. State, 2014 WL 199952 (Indiana Court of Appeals 2014). On appeal, he argued that the judge “erred by admitting into evidence text messages that were extracted from his cell phone” at his trial.  Duckworth v. State, supra.

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

On June 18, 2012, Christopher Orman was at his sister's home at 1625 B Dresden in Evansville, Indiana. Orman received a telephone call from some acquaintances asking if they could come over to visit with him. Shortly thereafter, Duckworth and Eddie Payne arrived, bringing . . . methamphetamine as well as two duffel bags, each containing materials and precursors used in the manufacture of methamphetamine. Orman had allowed Duckworth and Payne to bring over the precursors, and allowed them to set up the methamphetamine lab in exchange for some methamphetamine for himself. Orman indicated he `just told them to throw [him] some, that's a term that they use.’ . . . 

When Duckworth and Payne were beginning the methamphetamine manufacturing process, Orman was in the kitchen . . . smoking some of the methamphetamine. Orman assumed the process would be `put together’ at his sister's home, but the actual manufacture of the methamphetamine would be started somewhere else. . . . Because he believed the manufacturing process would not be started there, he opened a window to fan out the fumes. . . .

On that night, Officer Cara Mattingly of the Evansville Police Department was working the third shift. Mattingly was in the neighborhood of 1625 B Dresden when she detected `a really strong chemical smell.’ . . . Mattingly had training in the identification and detection of methamphetamine and methamphetamine labs, and in her duties encountered them on approximately thirty occasions. She described the odors she encountered that night as `very strong,’ so much so that she could detect them at least two houses away from . . .1625 B Dresden. . . . Eventually, she determined the residence at 1625 to be the source of the odor.

During the manufacturing process . . . Duckworth decided to leave the residence to buy some `smoke bottles’ from Wal–Mart. . . . A `smoke bottle’ is a plastic soft drink or water bottle used in the last stages of the methamphetamine manufacturing process. . . . As Mattingly neared the home at 1625 B Dresden, she saw . . . and stopped Duckworth. Other members of the Evansville Police Department arrived on the scene. Mattingly read Duckworth his Miranda warnings, and [he] consented to a search of his pockets, in which he had clear plastic tubing. Mattingly immediately took the tubing into evidence.

Among the other officers who responded . . . was Drug Task Force member Brian Watson, Methamphetamine Suppression Unit Detective Brock Hensley. and Methamphetamine Suppression Unit Detective Patrick McDonald. Detective Hensley has encountered over 300 methamphetamine labs in his experience. . . .

When Watson arrived at the location where Mattingly stopped Duckworth and recovered the plastic tubing, he also smelled . . . a `strong chemical odor,’ which based upon his experience and training he associated with the manufacture of methamphetamine. . . . The other officers who had arrived to assist Mattingly went to the back door of the house where they saw Payne exiting the house. The officers stopped him there.

Orman slammed the door to the house shut and hid inside until a SWAT team arrived. Orman then attempted to exit the house through an attic window. Orman later told officers he tried to leave through the attic window because he was scared and knew there was a methamphetamine lab inside the house.

Duckworth told Watson . . . that Orman invited him over to the house to `get high.’ . . . He said Orman had the pseudoephedrine needed to manufacture the methamphetamine. Duckworth was familiar with the manufacturing process and could smell the odors emanating from 1625 B Dresden, which were consistent with those of a methamphetamine lab.

When Orman spoke with police officers, he told them Payne and Duckworth offered him methamphetamine in exchange for letting them manufacture [it] at the house. Orman was arrested by the police and was . . . charged with dealing and conspiracy to deal methamphetamine. Orman eventually pleaded guilty in exchange for a reduced sentence and intensive rehabilitation for addicts through drug court. . . .

[O]fficers . . . obtained a search warrant for Orman's sister's home. . . .

Duckworth v. State, supra.

The officers executed the warrant and seized a variety of evidence, all of which “was indicative of a methamphetamine lab that was in the process of manufacturing methamphetamine.”  They also took Duckworth’s

cell phone into evidence. Officer Kirk Kuester of the Vanderburgh County Sheriff's Department, who had received training in the investigation of cell phones and the extraction of information from cell phones, performed an extraction of information on Duckworth's cell phone.

In particular, Kuester conducted a logical and physical extraction of information from Duckworth's cell phone. Kuester extracted a phone book, a calendar, contacts information, text messaging, phone logs, and audio/video information. He prepared a report of the text messages extracted from Duckworth's cell phone.

Detective Hensley, who was familiar with the slang terminology used by manufacturers and users of methamphetamine, testified at trial that Duckworth's text messages included a multitude of examples of terms for methamphetamine use and manufacture.

Duckworth v. State, supra.

As noted above, Duckworth was charged “with dealing in methamphetamine” and went to trial. Duckworth v. State, supra.

During Duckworth's trial he objected to the admission of the cell phone and to the contents of the cell phone, which were extracted by Kuester. Duckworth contended that the contents were not authenticated and contained hearsay. Out of the presence of the jury, the trial court ruled that the evidence was admissible, over Duckworth's objection. At the conclusion of the jury trial, Duckworth was found guilty. Duckworth was sentenced to thirty-two years imprisonment.

Duckworth v. State, supra.

As noted above, Duckworth also argued, on appeal, that the trial judge erred in admitting the cell phone and its contents into evidence.  Duckworth v. State, supra.  The Court of Appeals began its analysis of his argument by explaining that the

standard of review for admissibility of evidence issues is whether the trial court's decision resulted in an abuse ofits discretion. Allen v. State, 813 N.E.2d 349 (Indiana Court of Appeals 2004).  The decision whether to admit evidence will not be reversed absent a showing of manifest abuse of a trial court's discretion resulting in the denial of a fair trial. Allen v. State, supra. Generally, errors in the admission or exclusion of evidence are to be disregarded as harmless unless they affect the substantial rights of a party. Allen v. State, supra. In determining whether an evidentiary ruling affected a party's substantial rights, the court assesses the probable impact of the evidence on the trier of fact. Allen v. State, supra.

Duckworth v. State, supra. 

The Court of Appeals then began its analysis with Duckworth’s argument that the contents of the cell phone were inadmissible hearsay, explaining that the

primary basis for Duckworth's objection to the admission of the evidence extracted from his cell phone is that it was comprised of hearsay evidence. Hearsay is a `statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ Indiana Evidence Rule 801(c). Hearsay is not admissible unless it falls within one of the exceptions found in the evidence rules. Indiana Evidence Rule 802. Additionally, the same statement offered for another purpose is not hearsayGrund v. State, 671 N.E.2d 411 (Indiana Supreme Court 1996).

The text messages recovered from the cellphone that had been received by Duckworth were admitted to show the identity of the recipient and person responding to the text messages. The trial court allowed the admission of those text messages for that purpose.

Because the texts were admitted for another purpose, to establish the identity of the recipient and responder, and not to prove the truth of the contents of the text messages, the text messages were not excludable as inadmissible hearsay. As for the text messages sent by Duckworth, those were correctly admitted as statements made by a party opponent. Indiana Rule of Evidence 801(d)(2)(A) & (B).

Duckworth v. State, supra.  For more on the basic rule barring hearsay and the exceptions to that rule, check out this prior post.

Next, the Court of Appeals took up Duckworth’s argument that the phone was not properly authenticated.  As I have explained in prior posts, to be admissible in court, evidence must be authenticated, i.e., must be shown to be what it is represented to be.  Indiana Rule of Evidence 901 incorporates this principle, stating that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” 

The court then addressed the authentication of Duckworth’s phone, noting that

In Hape v. State,903 N.E.2d 977 (Indiana Court of Appeals 2009), we stated the following with respect to the authentication of cellular phone evidence:

`Before the cellular telephones were admitted into evidence, a police officer testified about how the items seized from Hape, which included the telephones, were catalogued and tracked. The officer identified the exhibit on the record, and testified he had personally initialed the seals across the top and side of the bag. The State presented sufficient evidence to authenticate that the cellular telephones were the telephones retrieved from Hape, and their admission into evidence did not constitute error.’

Duckworth v. State, supra (quoting Hape v. State, supra).

The Court of Appeals then noted that as in Hape,

here, the officers recovered the cell phone from Duckworth, testified as to how the evidence was recovered and catalogued, identifying all of the exhibits including the cell phone itself. The officers testified that the text messages which were extracted were from the cell phone recovered from Duckworth. Duckworth did not object to the admission of the cell phone.

Duckworth v. State, supra.  The court also pointed out that, in Hape, it stated that Indiana Rule of Evidence 901(a)’s requirement of authentication “is satisfied by a showing that the images contained in the exhibits were recovered from [the defendant's] computer.” Hape v. State, supra.  The Hape court also stated that it saw “no reason why the writings or recordings generated and saved inside of a cellular telephone should be exempted from the same authentication requirement.”  Hape v. State, supra. 

The Court of Appeals then applied those standards to Duckworth’s argument:

Kuester testified about the manner in which the text messages were recovered, the standard method of operation for conducting the extractions, both logical and physical, and that Kuester had received extensive training in each of the methods of extraction. Therefore, there was ample evidence to support the admission of the evidence in question.

Assuming, arguendo, that the trial court erred by admitting the evidence at issue, such would constitute harmless error. There was sufficient other evidence to establish Duckworth's familiarity with the manufacturing process of methamphetamine, Duckworth's possession of materials used for the same, and that Duckworth brought in a duffel bag full of precursors used in the manufacture of methamphetamine. The use of slang drug terms in text messages, is cumulative of evidence already properly admitted in evidence. We find no reversible error here.

Duckworth v. State, supra. 

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