STATE OF NEW JERSEY, Plаintiff-Respondent, v. TERRI HANNAH, Defendant-Appellant.
DOCKET NO. A-5741-14T3
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
December 20, 2016
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. APPROVED FOR PUBLICATION December 20, 2016 APPELLATE DIVISION.
Argued October 6, 2016 — Decided December 20, 2016
Before Judges Fisher, Leone, and Vernoia.
On
John P. Morris argued the cause for appellant.
Kim L. Barfield, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Elizabeth K. Tornese, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant Terri Hannah appeals her July 10, 2015 cоnviction for simple assault after a trial de novo in the Law Division, following her conviction in municipal court. She argues that a Twitter posting was improperly admitted into evidence, citing a Maryland case requiring that social media postings must be subjected to a greater level of authentication. We reject that contention, holding that New Jersey‘s current standards for authentication arе adequate to evaluate the admission of social media postings. Under those standards, we find it was not an abuse of discretion to admit the tweet. Finding defendant‘s remaining claims lack merit, we affirm.
I.
The Law Division found the following facts based on the testimony in the Vineland Municipal Court. On September 22, 2012, Arnett Blake and his girlfriend, Cindy Edwards, attended a party at a community center. Defendant, Blake‘s ex-girlfriend, also attended the party.
As Edwards and Blake were in the lobby trying to leave the party, defendant quickly approached Blake with her closed fist in the air. Blake reacted by pushing defendant away, prompting security to grab him. When Edwards turned to say something, she saw defendant holding a high-heeled shoe, with which defendant struck Edwards in the face. Blake also saw defendant hit Edwards with a shoe as he was being escorted outside. When defendant was brought outside, Edwards saw defendant did not have her shoes on.
Edwards and Blake went to the police station to report the incident and then went to the hospital, where Edwards received nine stitches. After the assault, defendant and Edwards had communications “back and forth” on Twitter. On December 28, 2012, Edwards saw defendant posted a tweet saying “shoe to ya face bitch.”
In municipal court, defendant offered a different version of events. Defendant testified she approached Blake and told him that she heard “hearsay . . . saying thаt [she] was going to beat his girlfriend up.” Defendant told Blake she “wanted to clear the air and let him know that [she was] not going to do anything to [his girlfriend].” Later during the party he “push[ed] [defendant] to the side.” Defendant later saw Blake in the lobby and decided to ask him why he pushed her. She became aggressive and started yelling, and a security guard took her “straight out . . . of the party.” Defendant testified she never saw Edwards that night and never punched anyone or hit anyone with a shoe. Defendant called as a witness a security guard at the party, who testified he saw defendant approaching a man “in an aggressive manner” and heard her make hostile remarks. “[B]efore she could do anything,” the guard “snatched her up and . . . took her out of the building.” He told her she was not permitted to reenter the party. He did not see Blake or Edwards or see defendant hit anyone with a shoe.
Defendant was charged with aggravated assault, but the charge was downgraded to simple assault, a disorderly persons offense.
On appeal to this court, defendant argues:
POINT I — THE COURT‘S ADMISSION OF THE TWEET (S-4), CLAIMED BY THE STATE TO HAVE BEEN POSTED BY THE DEFENDANT TO HER TWITTER ACCOUNT, WAS ERROR AS:
(1) THE SUPERIOR COURT JUDGE MISTAKENLY ADOPTED WHAT HE BELIEVED TO BE THE DIFFERENT, MORE LENIENT TEXAS AUTHENTICATION STANDARD [RATHER THAN THE MARYLAND STANDARD] WITHOUT UTILIZING NEW JERSEY‘S CIRCUMSTANTIAL EVIDENCE MODE OF
AUTHENTICATION, N.J.R.E. 901 , AND ASSESSING THE NON-PRODUCTION OF THE OTHER “DIFFERENT” SNAPSHOTS SUPPOSEDLY TAKEN BY THE ACCUSER IN AN ALLEGED EXCHANGE OF TWEETS BETWEEN ACCUSER AND DEFENDANT SOME THREE MONTHS AFTER THE ALLEGED ASSAULT;(2) THIS JUDGE IMPROPERLY AUTHENTICATED THE TWEET BY RELYING ON THE ACCUSER‘S TESTIMONY AS WELL AS THAT OF THE DEFENDANT, WHO ONLY TESTIFIED AFTER THE STATE HAD RESTED;
(3) WITH THIS JUDGE FINDING [SIC] THAT THE DEFENDANT‘S JANUARY 12, 2015 MUNICIPAL COURT TESTIMONY WAS NOT CREDIBLE BECAUSE HE CONTRASTED HER TESTIMONY WITH EXHIBIT D-4 ATTACHED TO DEFENSE COUNSEL‘S MAY 8, 2015 APPEAL BRIEF; AND,
(4) THIS JUDGE ADMITTED THE TWEET, WITHOUT ANALYSIS AS TO THE TWEET‘S RELEVANCE OR PROBATIVE VALUE.
POINT II — THE SEQUESTRATION ORDER WAS IMPOSED AT THE START OF THE JANUARY 12, 2015 MUNICIPAL COURT TRIAL. THE SEQUESTRATION ORDER WAS NOT ENFORCED AS THE ALLEGED VICTIM WAS ALLOWED TO REMAIN IN THE COURTROOM BY THE JUDGE AFTER HER TESTIMONY; ALLOWING HER TO BE PRESENT WHILE HER BOYFRIEND TESTIFIED. THE BOYFRIEND‘S EQUIVOCAL AND SEEMINGLY CONTRADICTORY OR “FORGETFUL” RESPONSES STRONGLY SUGGEST VISUAL CUES FROM THE ALLEGED VICTIM. THE LAW DIVISION JUDGE‘S WRITTEN OPINION IS DEVOID OF ANY CONSIDERATION OR DISCUSSION OF THAT ISSUE. THAT VIOLATION, BY ITSELF, SHOULD HAVE RESULTED IN REVERSAL AND REMAND TO THE MUNICIPAL COURT WITH STRICT ADHERENCE THEREAFTER TO THE SEQUESTRATION ORDER.
THIS DEFENDANT‘S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED; NO SHOWING OF PREJUDICE IS REQUIRED IN THESE CIRCUMSTANCES. DEFENDANT‘S CONSTITUTIONAL RIGHTS OVERRIDE ANY CONSTITUTIONAL RIGHTS OF A VICTIM OF CRIME. THIS TRIAL INVOLVED NOT A CRIME BUT A DISORDERLY PERSON‘S OFFENSE. [CONSTITUTIONAL ASPECT NOT RAISED BELOW].
POINT III — THE RELIEF REQUESTED ON THE APPEAL SOUGHT REVERSAL AND REMAND FOR TRIAL IN THE MUNICIPAL COURT,
R. 3:23-8(a)(2) ; RELIEF MANDATED FOR SUPPLEMENTATION OF THE MUNICIPAL COURT RECORD: (1) TO ALLOW DEFENDANT THE OPPORTUNITY TO RESPOND TO THE ADVERSE INFERENCE DETERMINATION MADE AGAINST HER BY THE MUNICIPAL COURT JUDGE, (2) TO ALLOW THE STATE TO ATTEMPT TO ESTABLISH AUTHENTICATION OF THE TWITTER POSTING, AND, (3) TO ALLOW THE MUNICIPAL COURT TO DEAL WITH THE, AS YET, UNRESOLVED ISSUE OF SEQUESTRATION VIOLATION SET FORTH IN POINT II ABOVE.R. 3:23-8 WAS AMENDED TO PERMITSUCH SUPPLEMENTATION BY REMAND TO THE MUNICIPAL COURT, A REMEDIAL DEVICE NOT ACKNOWLEDGED BY THIS JUDGE.
II.
Defendant argues a message sent on Twitter should not have been admitted as it was not properly authenticated.1
“[C]onsidеrable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion.” State v. Kuropchak, 221 N.J. 368, 385-86 (2015) (citation omitted). “Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless ‘the trial court‘s ruling “was so wide of the mark that a manifest denial of justice resulted.“‘” Ibid. (citation omitted). We must hew to our standard of review.
The municipal court and the Law Division each аdmitted as Exhibit S-4 the following tweet allegedly posted by defendant on December 28, 2012: “No need for me to keep responding to ya stupid unhappy fake mole having ass.. how u cring2 in a corner with a shoe to ya face bitch.” The tweet displayed defendant‘s profile photo and defendant‘s Twitter handle, “@cirocgirl25.”3
Edwards testified she recognized the tweet as being written by defendant because it displаyed defendant‘s picture. She also was familiar with defendant‘s Twitter handle, “@cirocgirl25.” Moreover, Edwards testified the tweet was posted “in response to things that [Edwards] was saying” and they were communicating “back and forth.” On December 28, 2012, Edwards went onto defendant‘s Twitter page, saw the posted tweet, and captured it as a screenshot.4
Defendant testified the Twitter page displayed a picture of her and her Twitter handle. However, she testified she did not author the tweet.
When the State sought to admit the tweet, defense counsel objected, arguing “[t]here‘s no way anybody besides Twitter can say that this came from [defendant].” In admitting the tweet, the municipal court ruled nothing “requires somebody to be here from Twitter. I think somebody can testify as to it as Ms. Edwards [did] and we go from there.”
At the trial de novo, the Law Division classified the methods of authenticating a social media post into two camps: the Maryland
In Griffin, the Maryland Court of Appeals considered what the test should be for the authentication of printed pages of a MySpace profile. Griffin, supra, 19 A.3d at 416-17. Citing “[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user,” Griffin ruled that images from such a site require “greater scrutiny” than “letters and other paper records.” Id. at 423-24 (concluding that “a printout of an image from such a site requires a greater degree of authentication“). The court suggested three possible methods of authentication. Id. at 427.
The first method was “to ask the purported creator if she indeed created the profile and also if she added the posting in quеstion, i.e. ‘[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be.‘” Ibid. (citation omitted). The second method was “to search the computer of the person who allegedly created the profile and posting and examine the computer‘s internet history and hard drive to determine whether that computer was used to originate the social networking profile аnd posting in question.” Ibid. The third method was “to obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.” Id. at 428.
In Tienda, the Texas Court of Criminal Appeals did not employ any of the three Griffin methods but concluded “there are far more circumstantial indicia of аuthenticity in this case than in Griffin — enough, we think, to support a prima facie case that would justify admitting the evidence and submitting the ultimate question of authenticity to the jury.” Tienda, supra, 358 S.W.3d at 647. The Texas court found “the internal content of . . . [the] MySpace postings — photographs, comments, and music — was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror could havе found that they were created and maintained by” a particular individual. Id. at 642.
Here, the Law Division found “[t]he Maryland approach is too strict in its authentication requirements,” stating that its three methods “are unrealistic for a party to fulfill” and “create a higher bar than originally intended by the Rules.” Accordingly, the Law Division “chose[] to adopt a rule of admissibility more similar to the Texas approach.” Defеndant argues that Texas follows the Maryland approach and that we should adopt the Maryland approach with its “three non-exclusive methods” of authentication. Id. at 647. We reject any suggestion that the three methods of authentication suggested in Griffin are the only methods of authenticating social media posts. We also reject Griffin‘s suggestion that courts should apply greater scrutiny when authenticating information from social networks. See Parker v. State, 85 A.3d 682, 686-87 (Del. 2014) (rejecting the Griffin “greater scrutiny” approach and “conclud[ing] that social media evidence should be subject to the same authentication requirements under the Delaware Rules of Evidence Rule 901(b) as any other evidence“); see also United States v. Vayner, 769 F.3d 125, 131 n.5 (2d Cir. 2014) (noting that Griffin requires “greater scrutiny” and stating “we are skeptical that such scrutiny is required“).
Rather, we agree with Tienda‘s observation that
[c]ourts and legal commentators have reached a virtual consensus that, although rapidly developing electronic communications technology often presents new and protean issues with respect to the admissibility of electronically generated, transmitted and/or stored information, including information found on social networking web sites, the rules of evidence already in place for determining authenticity are at least generally “adequate to the task.”
Tienda, supra, 358 S.W.3d at 638-39 (citation omitted). Indeed, “jurisdictions across the country have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and its various state analogs.” Id. at 639.
“Despite the seeming novelty of social network-generated documents, courts have applied the existing concepts of authentication under Federal Rule 901 to them,” including “the reply letter doctrine [and] content known only to the participants.” 2 McCormick on Evidence § 227, at 108 (Broun ed., 2013).5
We need not create a new test for social media postings. Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. Thе simple fact that a tweet is created on the Internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication under
Though in “electronic” form, a tweet is a “writing.” See
“‘Courts are inclined to assess their role in authentication as that of a screening process[,]’ and ‘will admit as genuine writings which have been proved prima facie genuine . . . leaving to the jury more intense review of the documents.‘” Konop v. Rosen, 425 N.J. Super. 391, 411 (App. Div. 2012) (quoting Biunno, supra, comment 1 on
Authenticity can be established by direct proof — such as testimony by the author admitting authenticity — but direct proof is not required. Biunno, supra, comment 2 on
Additionally, under the reply doctrine, a writing “may be authenticated by circumstantial evidence establishing that it was sent in reply to a previous communication.” Mays, supra, 321 N.J. Super. at 629; see Biunno, supra, comment 3(c) on
Defendant‘s Twitter handle, her profile photo, the content of the tweet, its nаture as a reply, and the testimony presented at trial was sufficient to meet the low burden imposed by our authentication rules. Those facts established a prima facie case “sufficient to support a finding that the matter is what its proponent claims.”
Computer-Based Evidence § 900.07[4A] (Joseph M. McLaughlin ed., 2016).
Defendant argues the Law Division cited not only the State‘s еvidence but also defendant‘s testimony in the municipal court that the tweet bore her picture associated with her Twitter account. However, she cites no authority precluding the Law Division from considering the uncontested fact that the tweet bore defendant‘s photo and Twitter handle, which was established through the testimony of Edwards as well as defendant.
In the municipal court, defendant testified “[а]nybody can make a fake Twitter page and put your name on it and put something on there.” She testified that because she deleted her Twitter account months before, someone could have taken the same Twitter handle and used it. After the municipal court did not credit this claim, defendant tried to bolster her testimony by submitting new evidence to the Law Division, including printouts of Twitter policies showing that Twittеr “is currently unable to accommodate individual requests for inactive or suspended usernames.” The Law Division cited that policy as one of several reasons for finding that
Defendant now argues it was improper for the Law Division to rely on evidence that was not before the municipal court. Notably, defendant herself presented the Twitter policies to the Law Division and did not object to the court‘s consideration of them. Therefore, she must show at least plain error. However, she fails to show the court‘s consideration of the policies was “clearly capable of producing an unjust result.”
The Law Division, like the municipal court, provided sufficient reasons for finding the tweet authentic, relevant, and admissible. Defendant‘s remaining arguments regarding authentication lack sufficient merit to warrant discussion.
III.
The municipal court granted defendant‘s request for a sequestration order at the start of trial. On appeal, defendant argues for the first time that the order was violated when the State‘s witnesses were allowed to remain in the courtroom after testifying.
Here, allowing the witnesses to remain in the courtroom after they testified “was no violation of a sequestration order or insult to the purpose of sequestratiоn.” Williams, supra, 404 N.J. Super. at 160. Edwards was the first witness to be examined by the State. After her testimony concluded, the municipal court told Edwards she “could step down.” Edwards apparently remained in the courtroom without objection. Blake then entered the courtroom, testified, and was allowed to remain without objection. Neither Edwards nor Blake was recalled to the stand.
Defendant argues Blake was coached by Edwards. However, the record contains no evidence of Edwards coaching Blake. Accordingly, defendant cannot show plain error. See id. at 160-65; see also id. at 172-73 (Fisher, J.A.D., concurring);
IV.
Lastly, defendant argues the municipal court drew an adverse inference against her because she did not call the women who were with her at the party to testify. The municipal court stated: “I think the Court can draw some inferences from the fact that there‘s reference to Ms. Hannah‘s sister [and two other women] who [were] somewhere in the area . . . And they‘re not here to testify about anything.” However, the Law Division found
We need not review whether the municipal court did or could draw such an inference because the Law Division itself declined to draw such an inference. The Law Division stated: “Even if this Court were to construe the trial judge‘s findings to include an adverse inference, there is sufficient evidence in the record to convict the defendant of simple assault without the alleged adverse inference.”
The Law Division “conduct[ed] a trial de novo on the record below.”
Thus, defendant‘s argumеnt solely “challenge[s] the actions of the municipal court judge. However, appellate review of a municipal appeal to the Law Division is limited to ‘the action of the Law Division and not that of the municipal court.‘” State v. Palma, 219 N.J. 584, 591-92 (2014) (citations omitted). “For that reason, we do not consider defendant‘s arguments in respect of the municipal court judge‘s actions.” Ibid.
Affirmed.
CLERK OF THE APPELLATE DIVISION