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.