State v. Eleck

• Decision Date: 09 August 2011
• Docket Number: No. 31581.,31581.
• Citation: 23 A.3d 818,130 Conn.App. 632
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticutv.Robert ELECK.

130 Conn.App. 632

23 A.3d 818

STATE of Connecticut

v.Robert ELECK.

No. 31581.

Appellate Court of Connecticut.

Argued May 31, 2011.Decided Aug. 9, 2011.

William B. Westcott, for the appellant (defendant).Timothy F. Costello, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Joseph C. Valdes, assistant state's attorney, for the appellee (state).BISHOP, BEACH and SULLIVAN, Js.BISHOP, J.

The defendant, Robert Eleck, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree by means of a dangerous instrument in violation of General Statutes § 53a–59 (a)(1). On appeal, the defendant claims that (1) the trial court improperly failed to admit into evidence a document that properly was authenticated and (2) the statutory scheme mandating a nonsuspendable, five year minimum term of imprisonment violates his rights to equal protection and due process under the federal constitution. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, are relevant to this appeal. The defendant attended a party at 16 Charles Street in Norwalk in the early morning hours of December 9, 2007. All of the approximately twenty teens and young adults who attended were consuming alcoholic beverages, and many were intoxicated. While inside the house, the defendant was involved in at least two verbal confrontations with one guest, Matthew Peacock. The defendant also conversed on several occasions with another guest, Simone Judway. Shortly after 2:30 a.m., outside the house, the defendant and Peacock engaged in a physical altercation that included punching and grappling. Three other guests, including Zachary Finch, joined the fight to help Peacock. When the combatants were separated, both Peacock and Finch discovered that they had suffered stab wounds.

The defendant subsequently was arrested and charged with assault in the first degree with a dangerous instrument in violation of § 53a–59 (a)(1) in connection with the injury to Peacock and assault in the second degree in violation of General Statutes § 53a–60 (a)(2) in connection with the injury to Finch. Following a trial to the jury, the defendant was convicted of assault in the first degree regarding the assault on Peacock and acquitted of assaulting Finch. Because the defendant's assault conviction involved the use of a dangerous instrument, he faced a mandatory minimum sentence of five years. He was, in fact, sentenced to the mandatory minimum sentence of five years incarceration with an additional ten years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court abused its discretion in excluding from evidence a printout from his Facebook account documenting electronic messages purportedly sent to him by Judway from her Facebook account.¹ We do not agree.

The following additional facts and procedural history are relevant to our resolution of the defendant's claim. As a witness for the state, Judway offered key testimony that, prior to the physical altercation, the defendant had told her that “if anyone messes with me tonight, I am going to stab them.” Subsequently, during cross-examination, defense counsel sought to impeach Judway's credibility by asking her whether she had spoken with the defendant in person since the incident. She responded that she had seen the defendant in public but had not spoken to him in person, by telephone or by computer. Defense counsel then showed Judway a printout purporting to show an exchange of electronic messages between the defendant's Facebook account and another account under the user name “Simone Danielle.” ² Judway identified the user name as her own, but denied sending the messages to the defendant.³ She also testified that someone had “hacked” into her Facebook account and changed her password “two [to] three weeks” ago such that she had been unable to access it subsequently.

On the following day, during the defendant's testimony, his counsel offered into evidence the defendant's Facebook printout containing messages purportedly from Judway. The state objected on the grounds that the authorship of the messages could not be authenticated and the document was irrelevant. In response, to authenticate the document, the defendant testified that he downloaded and printed the exchange of messages directly from his own computer. He also advanced testimony that he recognized the user name, “Simone Danielle,” as belonging to Judway because she had added him as a Facebook “friend” a short time before he received the message. He testified that the “Simone Danielle” profile contained photographs and other entries identifying Judway as the holder of that account. Finally, he testified that when he logged in to his Facebook account after the previous day's testimony, user “Simone Danielle” had removed him from her list of Facebook “friends.” The defendant's counsel then argued that based on this testimony and Judway's identification of her user name, there was a sufficient foundation to admit the document for the jury's consideration. The court, however, sustained the state's objection on the ground that the defendant had not authenticated that the messages were written by Judway herself. The defendant claims that this determination was improper.

The following standard of review and principles of law govern our resolution of the defendant's claim. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence.... The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and ... upset it [only] for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Garcia, 299 Conn. 39, 56–57, 7 A.3d 355 (2010).

“It is well established that [a]uthentication is ... a necessary preliminary to the introduction of most writings in evidence.... In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence.... Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege.... Rather, there need only be a prima facie showing of authenticity to the court.... Once a prima facie showing of authorship is made to the court, the evidence, as long as it is otherwise admissible, goes to the jury, which will ultimately determine its authenticity.” (Internal quotation marks omitted.) Id., at 57–58, 7 A.3d 355.

Codifying these principles, § 1–3(a) of the Connecticut Code of Evidence provides in relevant part: “Questions of admissibility generally. Preliminary questions concerning ... the admissibility of evidence shall be determined by the court.” Additionally, § 9–1(a) of the Connecticut Code of Evidence provides: “Requirement of authentication. The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.” Where documents are not self-authenticating,⁴ the prima facie showing of authenticity may be made in a variety of ways including, but not limited to, the following: “(1) A witness with personal knowledge may testify that the offered evidence is what its proponent claims it to be....(3) The trier of fact or an expert witness can authenticate a contested item of evidence by comparing it with preauthenticated specimens.... (4) The distinctive characteristics of an object, writing or other communication, when considered in conjunction with the surrounding circumstances, may provide sufficient circumstantial evidence of authenticity.” (Citations omitted.) Conn.Code Evid. § 9–1(a), commentary.

Although we have not found any Connecticut appellate opinions directly on point regarding the authentication of electronic messages from social networking websites, we are aware that federal courts as well as sister jurisdictions have written on this subject. We know, as well, that “[w]here a state rule is similar to a federal rule we review the federal case law to assist our interpretation of our rule.” (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 407, 880 A.2d 151 (2005). Rule 901 of the Federal Rules of Evidence is consistent with § 9–1(a) of the Connecticut Code of Evidence, except that rule 901(b) contains an additional list of illustrations. See State v. Swinton, 268 Conn. 781, 811 n. 28, 847 A.2d 921 (2004). Accordingly, it is helpful to consider relevant federal case law, as well as the opinions of sister states whose rules of evidentiary authentication are similar.

The precise issue raised here is whether the defendant adequately authenticated the authorship of certain messages generated via Judway's Facebook account.⁵ The need for authentication arises in this context because an electronic communication, such as a Facebook message, an e-mail or a cell phone text message, could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged in to their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship. See, e.g., Commonwealth v. Williams, 456 Mass. 857, 869, 926 N.E.2d 1162 (2010) (admission of MySpace ⁶ message was error where proponent advanced no circumstantial...