State v. Coston, Docket: Pen-18-481

• Decision Date: 29 August 2019
• Docket Number: Docket: Pen-18-481
• Citation: 215 A.3d 1285
• Parties: STATE of Maine v. Larry F. COSTON II
• Court: Maine Supreme Court

215 A.3d 1285

STATE of Maine

v.Larry F. COSTON II

Docket: Pen-18-481

Supreme Judicial Court of Maine.

Argued: June 25, 2019

Decided: August 29, 2019

Zachary J. Smith, Esq. (orally), Lawsmith Legal Services, L.L.C., Bangor, for appellant Larry F. Coston II

Marianne Lynch, District Attorney, and Mark A. Rucci, Asst. Dist. Atty. (orally), Prosecutorial District V, Bangor, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

SAUFLEY, C.J.

[¶1] Larry F. Coston II appeals from a judgment of conviction of burglary (Class C), 17-A M.R.S. § 401(1)(A) (2018),¹ entered by the court (Anderson, J. ) after a jury trial. He argues that the court erred in admitting recordings of incriminating telephone conversations that he had with his girlfriend while he was in jail. We affirm the judgment.

I. BACKGROUND

[¶2] Coston was tried by a jury in October 2018 on a charge of burglary arising from events that had occurred in May 2018.² The State presented evidence that Coston borrowed a car; drove his friend to a location near a convenience store where the friend intended to break in to steal cash or goods; and, after the friend broke into the store and stole cigarettes, drove the friend home.

[¶3] As part of its case-in-chief, the State sought to admit recordings of Coston's telephone conversations that were recorded by the jail in which Coston was held after his arrest. The State offered the testimony of a Penobscot County jail administrator and a Dexter police officer to establish the means by which the jail's phone calls are recorded, preserved, and retrieved. The jail has a contract with an out-of-state company to provide telecommunications services for inmates. Inmates are assigned identification numbers that they must use to place calls. All calls in the jail are recorded except for inmates' calls to and from their attorneys and calls placed on the separate, internal phone system of the jail. The recordings are collected and preserved on the company's servers outside of Maine.

[¶4] The recordings may be accessed and searched by jail administrators and law enforcement via a website that requires entry of a username and password. The recordings here were downloaded from the system's website by the Dexter police officer, who kept his username secure in his desk at work, had his password memorized, and accessed the website in his office on a desktop computer that cannot be used without a password. The officer testified that he did not alter the recorded calls or delete anything from them.

[¶5] Although Coston objected to the admission of the recordings, asserting a failure of foundation and the State's failure to eliminate any possibility of tampering, there was no evidence of tampering or other evidence suggesting any alteration of the audio that was to be played to the jury. The court determined that a sufficient foundation had been laid for the recordings and admitted them, concluding that nothing suggested that anyone had tampered with the recordings.

[¶6] After the State rested its case, Coston testified that he had not known what his friend had intended to do when he gave him a ride in the borrowed car and that he had not become suspicious until his friend returned to the car carrying cigarettes and wearing different clothes.

[¶7] The jury found Coston guilty of burglary, and the court sentenced him to one year of imprisonment, with all but sixty days suspended, and a one-year term of probation.³

II. DISCUSSION

[¶8] Coston primarily challenges the adequacy of the foundation that the State provided to establish the authenticity of the jail's recordings.⁴ To authenticate an item of evidence, including an item of electronic evidence, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." M.R. Evid. 901(a) ; see State v. Churchill , 2011 ME 121, ¶ 6, 32 A.3d 1026. "The standard embodies a flexible approach to authentication reflecting a low burden of proof." Churchill , 2011 ME 121, ¶ 6, 32 A.3d 1026 (quotation marks omitted). If there is a question about the integrity of electronic data, that question generally goes to "the weight of electronically based evidence, not its admissibility." Id. ¶ 8 (quotation marks omitted).

[¶9] A party seeking the admission of a recording must provide a sufficient foundation to show that the recording was created and stored securely and systematically. See id. ¶¶ 3, 9-10 ; State v. Berke , 2010 ME 34, ¶¶ 12-16, 992 A.2d 1290. As we have held before, however, "a particular storage process is not necessary to demonstrate that electronic evidence has not been tampered with." Churchill , 2011 ME 121, ¶ 8, 32 A.3d 1026. For instance, we affirmed the admission of a chat log when it was created by the victim in the presence of law enforcement, was sent by email to the detective, remained in police custody thereafter, and had time stamps and contained responsive contents that made logical sense in the context of the other evidence. See id. ¶¶ 3, 9-10. Similarly, we affirmed the admission of videotapes showing criminal sexual contact with minors when there was foundational evidence that the defendant was present in the videos, the events took place sequentially, and witnesses identified the defendant and the victims in the videos. Berke , 2010 ME 34, ¶¶ 1, 12-16, 992 A.2d 1290.⁵

[¶10] The evidence presented by the State regarding the method of making, storing, and retrieving the recordings of Coston's phone calls was sufficient to support the court's determination that the necessary foundation had been established.

[¶11] Although Coston argues that the State's failure to disprove any possible tampering rendered the audio unreliable and inadmissible, the State is not required to prove the negative. The State need not disprove any possibility of tampering to establish the basic foundation for admissibility. See Berke , 2010 ME 34, ¶ 11, 992 A.2d 1290 ; see also United States v. Savarese , 686 F.3d 1, 11 (1st Cir. 2012) ("The burden of authentication ... does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be." (quotation marks omitted)). "[T]he fact that the falsification of electronic recordings is always possible does not ... justify restrictive rules of authentication that must be applied in every case when there is no colorable claim of alteration." People v. Gonzales , No. 16CA0750, ––– P.3d ––––, ––––, 2019 WL 1087008, *5, 2019 Colo. App. LEXIS 345, *14 (Colo. App. Mar. 7, 2019).

[¶12] In those instances where evidence of tampering is presented, the court will determine whether the proffered recording is so unreliable that it lacks an adequate foundation demonstrating that it is what it purports to be. See M.R. Evid. 901(a). In the absence of any evidence of tampering that would undermine the foundation in that way, however, the court may admit the evidence and allow the jury to determine the weight to be given that evidence. See Churchill , 2011 ME 121, ¶ 8, 32 A.3d 1026.

[¶13] Here, although Coston argues that there might have been tampering, there was no evidence of tampering, and the court...