113 A.3d 695 (Md. 2015), 42-2014, Sublet v. State

Docket Nº:42-2014, 59-2014, 60-2014
Citation:113 A.3d 695, 442 Md. 632
Opinion Judge:Battaglia, J.
Party Name:Albert Sublet IV v. State of Maryland; Tavares D. Harris v. State of Maryland; Carlos Alberto Monge-Martinez v. State of Maryland
Attorney:No. 42 ARGUED BY Matthew Joseph (Douglas Baruch, Fried, Frank, Harris, Shiver& Jacobson, LLP of Washington, DC; Anne K. Olesen, George Washington University Community Law Clinics of Washington, DC) on brief FOR PETITIONER. ARGUED BY Edward J. Kelley, Assistant Attorney General (Brian E. Frosh, At...
Judge Panel:ARGUED BEFORE: Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ. Opinion by Battaglia, J. Concurring and dissenting opinion by Adkins, J., which Barbera, C.J., and Harrell, J., join in No. 42 only. Adkins Adkins, J., which Barbera, C.J. and Harrell, J., join. Chief Judge Bar...
Case Date:April 23, 2015
Court:Court of Appeals of Maryland

Page 695

113 A.3d 695 (Md. 2015)

442 Md. 632

Albert Sublet IV

v.

State of Maryland; Tavares D. Harris

v.

State of Maryland; Carlos Alberto Monge-Martinez

v.

State of Maryland

Nos. 42-2014, 59-2014, 60-2014

Court of Appeals of Maryland

April 23, 2015

Argued: February 6, 2015.

Page 696

Certiorari to the Court of Special Appeals Circuit Court for Prince, George's County, Maryland, Case No. CT12-0824X, C. Philip Nichols, Jr., JUDGE.

IN CASE NUMBER 42, JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER. IN CASE NUMBER 59, JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY PETITIONER. IN CASE NUMBER 60, JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

No. 42

ARGUED BY Matthew Joseph (Douglas Baruch, Fried, Frank, Harris, Shiver& Jacobson, LLP of Washington, DC; Anne K. Olesen, George Washington University Community Law Clinics of Washington, DC) on brief FOR PETITIONER.

ARGUED BY Edward J. Kelley, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland, of Baltimore, MD) on brief FOR RESPONDENT.

No. 59

ARGUED BY Daniel Korbin, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD) on brief FOR APPELLANT.

ARGUED BY Brenda Gruss, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, of Baltimore, MD) on brief FOR APPELLEE.

No. 60

ARGUED BY Michael T. Torres, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD) on brief FOR PETITIONER.

ARGUED BY Todd W. Hesel, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, of Baltimore, MD) on brief FOR RESPONDENT.

ARGUED BEFORE: Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ. Opinion by Battaglia, J. Concurring and dissenting opinion by Adkins, J., which Barbera, C.J., and Harrell, J., join in No. 42 only.

OPINION

Page 697

[442 Md. 636] Battaglia, J.

The rapid rise of social networking websites,1 themselves a branch of social media,2 once again gives us cause to explore the authentication of documents related to this genre, under Maryland Rule 5-901, which provides that the " requirement of [442 Md. 637] 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", in three cases, Sublet v. State, Harris v. State and Monge-Martinez v. State, consolidated for the purposes of this opinion. All three cases involve the same legal issues, those being the elucidation and implementation of our opinion in Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), in which we addressed the admissibility of a screenshot3 of a MySpace4 page, and its application to the

Page 698

authentication of screenshots of messages allegedly sent through social networking websites; in Sublet, via a Facebook5 timeline; 6 in Harris, on [442 Md. 638] Twitter7 through " direct messages" 8 and public " tweets" ; 9 and, in Monge-Martinez, through Facebook messages.10

We shall hold that, in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be. We shall hold in Sublet that the trial court did not err in excluding the admission of the four pages of the Facebook conversation. We shall hold in Harris that the trial court did not err in admitting the " direct messages" and " tweets" in evidence. We shall also hold in Monge-Martinez that the trial court did not err in admitting the Facebook messages authored by Monge-Martinez.

Sublet v. State

Albert Sublet, the first Petitioner herein, was charged by indictment in the Circuit Court for Anne Arundel County with three counts of first degree assault, second degree assault and reckless endangerment, as well as with one count of carrying a deadly weapon with intent to injure. The charges against Sublet arose out of a fight that occurred among Sublet, Chrishell Parker, her mother and her sister, in late October of 2012. According to the State's theory of the case, Sublet [442 Md. 639] became aggressive when he arrived at Ms. Parker's apartment to pick up his girlfriend, Ymani Conner, and initiated an altercation; Sublet urged, conversely, that it was Ms. Parker who was the instigator.

During cross-examination of Ms. Parker, Sublet's counsel sought to introduce into evidence four pages alleged to have been a printout from Ms. Parker's Facebook page of a " conversation" among seven different

Page 699

individuals. The document submitted to Ms. Parker for review consisted of four pages and written across the top of each page was " printed on 10· 30· 12 from Facebook" .11 Each of the nineteen entries in the four pages contained the name of the profile that had allegedly created it, as well as the time the entry was created. Next to the name of the profile was also a picture. The four pages were collectively received for identification as Defense Exhibit A.12

With respect to the conversation in issue, the first page began on " Saturday" with a statement associated with the profile " Chanica DatBytch Brown", which Ms. Parker identified as Ms. Brown's Facebook username, while the fourth post on the first page was related to the name " Cece Parker" . When asked if she had discussed the altercation on Facebook, Ms. Parker stated that she had connected with Chanica Brown through Facebook and that she herself used the name Cece Parker:

[ATTORNEY FOR SUBLET]: Well, have you discussed [the fight] in social media?

[MS. PARKER]: Social media? [ATTORNEY FOR SUBLET]: Like Facebook? [MS. PARKER]: Well, I'm not going --people inboxed me and said I heard what happened to you, are you okay? And, yes, I have discussed it on Social Network. [442 Md. 640] [ATTORNEY FOR SUBLET]: Okay. And you discussed it with a lady by the name of Shanika [sic] Brown, is that correct? [MS. PARKER]: Yes. [ATTORNEY FOR SUBLET]: And with a lady by the name of CiCi [sic] Parker? [MS. PARKER]: That's me.

The posts depicted on the first page were:

Chanica DatBytch Brown

Saturday via Mobile

Had a BLAST lastnight... Shit got hectic hahaha ymani has more to come.. lmaowack bytch Share o 2 people like this CanDii SoSeductive P Smhh Saturday at 13:12 via mobile Camerin Kill'Ent Johnson Yessssssa lol Saturday at 14:15 via mobile Cece Parker yea everytime i see that bitch ima fuck that dirty pussy bitch up. shout out to cam cam u was riden Saturday at 15:42 via mobile · 1 Tyesha Glover hahahahaha yea whore i agree....@ cece the whole hood was ridin

Saturday at 17:24 Cece Parker yea.. dey was tho that shit was crazy Saturday at 20:27 via mobile · 1

On the second page was a single entry affiliated with the user name " Zaquane Graham" lamenting being left out of the conversation:

Zaquane Graham Yall n[****]s maken me mad not tellin a n[***]a was goin on the way i feel im sayin fuck it dam im way down here and yall not tryin to keep me postedon was goin on u know wat fuck it i dn want to know

Yesterday at 18:42 via mobile Page 700

[442 Md. 641] On page three, Ms. Brown purportedly conversed with " Zaquane Graham" and " Tonisha Brown" :

Chanica DatBytch Brown

Yesterday via Mobile She still tawkn shit mmmhm but u want to block me u not real ymani Conner u can keep hiding u an ya broke ass man that jus started working at bed bath an beyond out in the mall we will find yal or shuld i say u cuz he goin jail i got his pic lmao stupid hoe kp ya legs close bitch dont go down gardens cuz (INSIDER) its not safe lol Share o 3 people like this. Zaquane Graham Dammm thats real talk y yall fightin anyway im about o kick both yall assess y yall fightin Yesterday at 15:02 via mobile Tonisha Brown I love you.. you got me pissed off so take ya time read what I said an u will get it.. Yesterday at 15:19 via mobile · 1 Chanica DatBytch Brown im not tripn off nobody u dnt even nko nothing so.... Yesterday at 15:40 via mobile Zaquane Graham Inbox me nica Yesterday at 15:40 via mobile Chanica DatBytch Brown an thats not my godsister an i stamp that.... Yesterday at 15:42 via mobile

The fourth page contained six posts; an initial one identified with " Chanica DatBytch Brown", followed by two more posts allegedly from " Cece Parker" :

Chanica DatBytch Brown demondra trenice Erica are my godsisters motjer of mines

Yesterday at 15:43 via mobile Cece Parker ima say this it anit over #fact Yesterday at 16:40 via mobile Cece Parker her bf is a dead man walkn [442 Md. 642] Yesterday at 16:44 via mobile Zaquane Graham Wtf is goin for real Yesterday at 17:05 via mobile Chanica DatBytch Brown call me brova 4438227645 @cece i kno i frel u my G Yesterday at 20:56 via mobile Chanica DatBytch Brown feel u Yesterday at 20:56 via mobile

At trial, Ms. Parker was confronted with the four pages by Sublet's counsel, who asked her to " look this over" and then asked her if she had " said those things" attributed to her, to which she agreed. When Sublet's counsel then inquired as to whether Ms. Parker disliked Ms. Conner, Ms. Parker asserted that she did not know Ms. Conner prior to the night of the incident and, furthermore, urged that she did not have " any personal animosity against Ms. Conner" . As defense counsel began to ask about the content of the entry attributed to Ms. Parker on the fourth page that read, " her bf is a dead man walkn", the trial judge intervened to address the issue of authentication of the Exhibit:

[ATTORNEY FOR SUBLET]: What about this statement?

[MS....

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