STATE OF MARYLAND v. HAYES SAMPLE
No. 54
Court of Appeals of Maryland
May 11, 2020
Watts, J.
Sеptember Term, 2019; Argued: March 9, 2020; Circuit Court for Baltimore County, Case No. 03-K-16-000108.
State of Maryland v. Hayes Sample, No. 54, September Term, 2019
Court of Appeals reaffirmed holding in Sublet v. State, 442 Md. 632, 678, 113 A.3d 695, 722 (2015), and concluded that, to authenticate social media evidence, there must be proof from which reasonable juror could find that it is more likely than not that evidence is what proponent purports it to be. Court of Appeals concluded State was not required to eliminate all possibilities that were inconsistent with authenticity, or prove beyond any question that defendant was one who used Facebook profile to unfriend accomplice‘s Facebook profile.
Court of Appeals held that there was sufficient circumstantial evidence under
It is axiomatic that for a trial court to admit evidence, there must be sufficient indicia that the evidence is authentic—i.e., that the evidence “is what its proponent claims.”
On two prior occasions, this Court has addressed authenticating social media1 evidence through circumstantial evidence under
consolidated three cases, this Court applied
This case requires us to apply
In the Circuit Court for Baltimore County, the State, Petitioner, charged Hayes Sample, Respondent, with attempted robbery with a dangerous weapon and other crimes. At trial, the State offered evidence that Sample and his accomplice, Claude Mayo, using guns, attempted to rob a liquor store. The liquor store‘s owner had a gun too, and used it to shoot Mayo, who died a short distance outside the liquor store. Sample fled the scene.
While investigating the attempted armed robbery, a detective searched Facebook for a profile associated with the name Claude Mayo. Ultimately, the detective requested from Facebook, and received, “Facebook Business Records” regarding two Facebook profiles—
“claude.mayo.5”3 and
The Facebook Business Records regarding the claude.mayo.5 Facebook profile also listed Baltimore as the “current city,” and listed Patterson High School as the user‘s “[c]onnection[.]” The owner of the claude.mayo.5 Facebook profile was friends with the owner of a Facebook profile named “Shantell Richardson[.]” Shantell Richardson is Mayo‘s mother‘s name.
Significantly, the Facebook Business Records regarding the SoLo Haze profile indicate that, the day after Sample and Mayo allegedly attempted to rob the liquor store and Mayo was fatally shot, the claude.mayo.5 profile was unfriended from the SoLo Haze profile. During the seventeen-day period to which the Facebook Business Records pertained, the claude.mayo.5 profile was the only one, of 175 profiles with which the SoLo
Haze profile was friends, to have been unfriended.
In the circuit court, Sample filed a motion in limine and a memorandum in support thereof, contending that the State would not be able to sufficiently authenticate the Facebook Business Records. The circuit court denied the motion. At trial, over Sample‘s counsel‘s objection, the prosecutor elicited testimony from the detective concerning information from the Facebook Business Records, including the circumstance that the Facebook Businеss Records regarding the SoLo Haze Facebook profile showed that, the day after the attempted armed robbery, the claude.mayo.5 Facebook profile had been unfriended.
The jury found Sample guilty of attempted robbery with a dangerous weapon and other crimes. Sample appealed, and the Court of Special Appeals reversed the convictions and remanded the case for a new trial, reasoning that the circuit court abused its discretion in admitting the Facebook-related testimony. See Hayes Sample v. State, No. 1715, Sept. Term, 2017, 2019 WL 3451812, at *4-5 (Md. Ct. Spec. App. July 31, 2019). The State filed a petition for a writ of certiorari, which this Court granted. See State v. Sample, 466 Md. 310, 219 A.3d 526 (2019).
Before us, the State contends that there was sufficient circumstantial evidence for a reasonable juror to find that the SoLo Haze Facebook profile belonged to Sample, that the claude.mayo.5 Facebook profile belonged to Mayo, and that Sample used his profile to unfriend the claude.mayo.5 profile. According to the State, Sample had a motive to distance himself from Mayo immediately after the crime and did so before his status as a suspect in the attempted armed robbery became publicly known. Sample responds that,
despite there being evidence that he created the SoLo Haze Facebook profile, there was insufficient evidence that he was the person
We hold that the circuit court did not abuse its discretion in admitting the Facebook-related evidence, as there was sufficient circumstantial evidence under
claude.mayo.5 profile.
There are, moreover, additional circumstances surrounding the unfriending that establish that a reasonable juror could find more likely than not that Sample was the person who unfriended the claude.mayo.5 profile. Those circumstances include the temporal proximity of the attempted armed robbery to the unfriending, and that Sample had a motive to distance himself from Mayo. Indicative of a motive to distance himself from Mayo, while speaking with detectives, Sample did not acknowledge being friends with Mayo despite surveillance video that showed Sample and Mayo walking together approximately fourteen minutes before the crime occurred and cellular telephone records that showed that there was a call made by Sample to Mayo approximately an hour before the crime. And, importantly, during the seventeen-day period after the attempted armed robbery, of 175 Facebook profiles listed as friends on the SoLo Haze Facebook profile, the claude.mayo.5 profile was the only one that was unfriended.
BACKGROUND
Opposition to Facebook Evidence
On July 24, 2017, Sample raised his opposition to the Facebook evidence during a pretrial hearing. During the hearing, Sample‘s counsel advised that he had provided the circuit court with a copy of a letter in which he had informed the prosecutor that he planned to object to certain Facebook-related evidence based on foundation. Sample‘s counsel stated that the letter included requests that the prosecutor provide additional information about the Facebook-related evidence and call an employee of Facebook as a witness at trial. The circuit court and Sample‘s counsel discussed whether the request for the prosecutor to
call a Facebook employee as a witness at trial was timely. Sample‘s
Motion in Limine
On August 3, 2017, Sample filed a “Motion in Limine to Exclude Facebook Evidence[,]” a memorandum in support of the motion, and Exhibits A through C. (Some capitalization omitted). Exhibits A and B consist of numbered pages, all of which have the heading “Facebook Business Record[,]” and Exhibit C is a “Certificate of Authenticity of Domestic Records of Regularly Conducted Activity[.]” In the motion in limine and the memorandum in support thereof, Sample contended that the Facebook Business Records were inadmissible on multiple grounds. Among other things, Sample argued that the Certificate of Authenticity of Domestic Records of Regularly Conducted Activity did not sufficiently authenticate the Facebook Business Records because it did not establish who authored the Facebook Business Records’ contents. In the memorandum, as to authentication, Sample contended that the State would be unable to authenticate the Facebook Businеss Records using any of the methods for authenticating social media evidence that this Court set forth in Sublet, 442 Md. at 663, 113 A.3d at 713.
Exhibit A – Facebook Business Records for the SoLo Haze Profile
In Exhibit A, which pertains to the SoLo Haze profile, page 29 states in pertinent
part:
| Target | 100009404335910 |
| | 2015-12-17 19:40:24 UTC4 |
| Date Range | 2015-12-01 00:00:00 UTC to 2015-12-17 23:59:59 UTC |
* * *
| Name5 | First | SoLo |
| Middle | ||
| Last | Haze | |
| Registered E[-]mail Addresses | 100009404335910@facebook.com mrsample2015@gmail.com | |
| Vanity Name | ||
* * *
| Current City | Baltimore, Maryland (112438218775062) |
Page 36 of Exhibit A states in pertinent part:
| Connections | Zodiac Signs (1616634441885213) |
Edmondson-Westside High School (230382833645773)
Towson University (33627530544)
Page 37 states in pertinent part:
| Removed Friends | User | Claude Mayo (100009340905913) |
| Time | 2015-12-09 02:36:22 UTC | |
| Removed By | 100009404335910 |
Below the “Removed Friends” entry on page 37 is the word “Friends[.]” Starting next to that word, and continuing through page 40, there is a list of 174 names and ID numbers. Neither the name “Claude Mayo,” nor the ID number “100009340905913,” appears in the Friends list. The name “Skky DaLimit Lynn” is included in the Friends list.
Exhibit B – Facebook Business Records for the claude.mayo.5 Profile
In Exhibit B, which pertains to the claude.mayo.5 profile, page 36 states in pertinent part:
| | 100009340905913 |
| Generated | 2015-12-08 16:42:21 UTC |
* * *
| Name | First | Claude |
| Middle | ||
| Last | Mayo | |
| Registered E[-]mail Addresses | +14438898253 | |
| Vanity Name | claude.mayo.5 | |
* * *
| Current City | Baltimore, Maryland (112438218775062) |
Page 37 of Exhibit B states in pertinent part:
| IP Address6 | 2607:fb90:136e:b2a:0:9:3f63:4d01 |
| Time | 2015-12-08 16:06:42 UTC |
| Action | login_attempt_success |
| IP Address | 2607:fb90:136e:b2a:0:9:3f63:4d01 |
| Time | 2015-12-08 16:06:41 UTC |
| Action | login_bruteforce_protection_delta_not_vetted |
| IP Address | 2607:fb90:136e:b2a:0:9:3f63:4d01 |
| Time | 2015-12-08 16:06:41 UTC |
| Action | password_check |
| IP Address | 2607:fb90:136e:b2a:0:9:3f63:4d01 |
| Time | 2015-12-08 16:06:41 UTC |
| Action | login_attempt |
Page 38 includes the word “Connections” near the following: “Patterson High School (Baltimore) (407178879346337)[.]” Below that, page 38 includes the word “Friends[.]” Starting next to that word, and continuing through page 41, there is a list of several names and ID numbers. “SoLo Haze (100009404335910)” and “Shantell Richardson” appear in that list.
Page 18 states in pertinent part:
| Target | 100009340905913 |
| Generated | 2015-12-17 19:40:23 UTC |
Page 18 includes all of the above-quoted language on page 36, including the name “Claude Mayo,” the phone number 14438898253, the vanity name “claude.mayo.5,” and the reference to Baltimore City as the “Current City[.]” Like page 38, page 19 refers to Patterson High School in Baltimore as a “Connection[.]”
Page 20 of Exhibit B includes the word “Friends[.]” Starting next to that word, and continuing through the page 23, there is a list of several names and ID numbers. Neither the name “SoLo Haze,” nor the ID number “100009404335910,” appears in that list.
Page 31 includes a photograph of a male individual. Below the photograph, pages 31 and 32 state in pertinent part:
| Title | Damn rest easy to my lil сuz toot. Now u can live it up with KC. God wanted you, so I can‘t be mad at that. I‘m praying for ALL my family. Gotta be strong for each other. |
* * *
| Uploaded | 2015-12-08 14:39:52 UTC | |
| Tags7 | Subject Id | 100009340905913 |
| Subject Name | Claude Mayo |
* * *
| Comments | User | Cash Capo (100008817046384) |
| Text | Damn smh I remember our Lakeland days | |
| Time | 2015-12-08 15:12:16 UTC | |
| User | Sharon Patterson (100000468265896) | |
| Text | Sorry to hear of ya love one, sending prayer and may God give you strength | |
| Time | 2015-12-08 18:39:53 UTC |
t Candle
t Visual
be held
orrow
F m 5:30pm
On lafayette
ave &
Arlington @t
The Park
Below the photograph, pages 25 and 26 state in pertinent part:
| Title | EVERYBODY PLEASE COME OUT TO SUPPORT MY BRO TELL YOUR FRIENDS |
* * *
| Uploaded | 2015-12-11 06:49:17 UTC | |
| Tags | ||
| Comments | User | Jessica Yayosister Powell (100008547643889) |
| Text | R.I.P baby ily always and forever ...fly high baby | |
| Time | 2015-12-11 07:44:43 UTC | |
(Ellipsis in original).
Page 27 of Exhibit B includes two different photographs, each of which is of a male individual. Below the photographs, page 27 states in pertinent part:
| Title | N[****] can‘t sleep without thinking bout y‘all two only god know how I feel thug n peace my 😇😇😇😇😇😇😇 Angels |
stay watching my back cuz #longlive #Toot #Kc8
* * *
| Uploaded | 2015-12-14 18:01:50 UTC | |
| Tags | Subject Id | 100009340905913 |
| Subject Name | Claude Mayo | |
Exhibit C – Certificate of Authenticity of Domestic Records of Regularly Conducted Activity
Exhibit C is a Certificate of Authenticity of Domestic Records of Regularly Conducted Activity. The certificate states in its entirety:
Under
- I am
employed by Facebook, Inc., headquartered in Menlo Park, California. I am a duly authorized custodian of records for Facebook[,] and am qualified to certify Facebook‘s domestic records of regularly conducted activity. - I have reviewed the records produced by Facebook in this matter. The records include search results for basic subscriber [i]nformation, IP logs, messages, photo[graph]s, [and] other content and records for 100009404335910 and claude.mayo.5.
- The records [that are] provided were made and kept by the automated systems of Facebоok in the course of regularly conducted activity as a regular practice of Facebook. The records were made at or near the time [that] the information was transmitted by the Facebook user[s].
- Under
28 U.S.C. § 1746 , I declare under penalty of perjury that the foregoing certification is true and correct to the best of my knowledge.
Propeck‘s name and signature, as well as the date November 3, 2016, appear below the body of the certificate.
Hearing on the Motion in Limine
On August 7, 2017, the day that trial was scheduled to begin, Sample, his counsel, and the prosecutor appeared before the circuit court. The circuit court asked Sample‘s counsel whether, in the motion in limine, she had made any arguments that were not already made at the motions hearing. Sample‘s counsel clarified that, at the motions hearing, she had requested that the circuit court require the State to call as a witness the custodian of records from Facebook, whereas, in the motion in limine, she had requested that the circuit court require the State to call an expert witness. Sample‘s counsel and the circuit court discussed whether Sample had waived the contentions in the motion in limine by not raising them at the motions hearing.
Sample‘s counsel contended that the Facebook Business Records were inadmissible because no witness would testify that the records pertained to Sample. Sample‘s counsel argued that this Court has indicated that extrinsic evidence is necessary to connect social media evidence with the person to whom the social media profile allegedly belongs. Sample‘s counsel asserted that the State needed to prove that Sample had exclusive access to the SoLo
The prosecutor explained that the State would offer the Facebook Business Records
to prove that Sample and Mayo had been friends on Facebook, and that, after Mayo died, Sample unfriended him on Facebook. The State argued that there were sufficient identifying characteristics in the Facebook Business Records, including the name “SoLo Haze,” the e-mail address with “mrsample” in it, and the “Connections” to Towson University, which is in Baltimore County, and Edmondson-Westside High School, which is in Baltimore City, for a reasonable juror to find that the SoLo Haze profile belonged to Sample.
The circuit court indicated that it would review Griffin, 419 Md. 343, 19 A.3d 415, and Sublet, 442 Md. 632, 113 A.3d 695, and rule on the motion in limine the following morning. The next day, Sample, his counsel, and the prosecutor appeared before the circuit court, and the court denied the motion in limine. The circuit court concluded that Sample had waived the contention as to authentication by failing to raise it in a timely motion in limine.10 As to the merits, the circuit court held that a reasonable juror could find that the SoLo Haze Facebook profile and the claude.mayo.5 Facebook profile belonged to Sample and Mayo, respectively. The circuit court addressed the Facebook Business Records regarding the SoLo Haze profile as follows:
[The] first name [is “]SoLo[.” The] last name [is “]Haze[.” I]t actually provides an e[-]mail [address] of m[]rsample2015@[g]mail.com.
* * *
It gives the [“C]urrent [C]ity[“] as Baltimore. It also gives [“C]onnections[” to] Edmondson-Westside High School and Towson University.
In these particular [Facebook Business R]ecords[ --] I note that the attempted robbery was December the 7th, [2015,] and the [Facebook Business R]ecords [regarding the SoLo Haze Facebook profile] indicate that [] Mayo was removed as a friend just a few days later.11
Also[,] importantly, I note that . . . Skky [DaLimit] Lynn is listed as a friend of [] Sample‘s, and I was told yesterday that Skkyla Lynn was going to be called as a witness. I don‘t know -- and her name [ha]s two Ks. We had a talk about that. So S-K-K-Y is obviously not at all common[,] and is a friend of [] Sample‘s.
So[,] I find that there is sufficient proof from which a reasonable juror could find that [the Facebook Business Records regarding the SoLo Haze Facebook profile are] what [they] purport[] to be.
The circuit court addressed the Facebook Business Records regarding the claude.mayo.5 Facebook profile as follows:
[T]here aren‘t that many people named Claude. I know two: Claude Debussy, the . . . composer. . . . And one other person. There aren‘t that many Claude Mayos. The [“C]onnection[“] is [to] Patterson High School. There are [photograph]s of Claude Mayo, and there are numerous posts about [his] passing, so it‘s not a different Claude Mayo[,] because there‘s only one Claude Mayo in this area who passed away at the time that all the posts were lodged regarding his passing.
I also noted that in [] Mayo‘s friend list is Shantell Richardson, and that is his mother. And I know this because[,] last week[,] I signed a body attachment for her,12 and[,] this morning[,] the deputies brought me word that [] Richardson had been picked up. So[,] there is [an] additional connection. It‘s not just any Claude Mayo[. I]t‘s not the wrong Claude Mayo[. I]t‘s the Claude Mayo connection who‘s friends with his mother.
So[,] this is -- there is certainly a foundation laid, and there is certainly
the distinct possibility, rather strong possibility, that there‘s -- there is proof that a reasonable juror can find that [the Facebook Business Records regarding the “claude.mayo.5” Facebook profile are] exactly what [they] purport[] to be.
That doesn‘t foreclose [Sample‘s counsel] from arguing otherwise. The issue of ultimate reliability is left to the jury, so this is one of those times when it goes to the weight, not to the admissibility.
* * *
I do understand, and [Griffin, 419 Md. at 352, 19 A.3d at 421, and Sublet, 442 Md. at 662, 113 A.3d at 713,] talk about the fact, that anyone can create a fictitious [profile], and people can gain access to [other] people‘s [profile]s, and[,] in the case of [the “claude.mayo.5” Facebook profile], somebody did gain access after his passing.
What‘s interesting about that is [that] they tried to get in a couple times[,] and didn‘t get in easily, so I think [that] that person went on [it‘s] certainly reasonable to suggest [that] that person went online to send a message to all of [] Mayo‘s friends to tell them about the vigil that [had been] scheduled.
Trial
At trial, as a witness for the State, Douglas Marcus testified that he owned Towson Wines and Spirits at 6 West Pennsylvania Avenue in Towson. On December 7, 2015, Marcus worked at the store by himself during the day. At 6:50 p.m., Marcus had finished counting cash from the cash register, and Samantha Twist, the store‘s night manager, arrived. Around that time, two individuals wearing black clothing, including black masks, came into the store. Both individuals pulled their masks down and pulled out revolvers. While testifying, Marcus referred to one of the men as Mayo, and referred to the оther man as “the Defendant“—i.e., Sample. According to Marcus, Sample approached Twist, put an arm around her neck, and put his revolver to her neck. Mayo came behind the counter, put his revolver to Marcus‘s head, grabbed his left arm, and tried to pull him away from
the cash register. Marcus reached into a drawer, pulled out a revolver, and shot Mayo. Sample approached Marcus, who shot Mayo again. Sample and Mayo left the store. The testimony of other State‘s witnesses established that Mayo died of gunshot
As a witness for the State, Detective Christopher Smith of the Baltimore County Police Department testified that, while investigating the attempted armed robbery, he and other detectives reviewed a recording from a surveillance camera at Z-Burger, a restaurant on Allegheny Avenue. The recording showed two individuals in the area of Z-Burger shortly before the attempted armed robbery. One of those two individuals was the person who had died outside of the Elks Lodge. Detective Smith and other detectives determined that the decedent‘s name was Claude Mayo. In the early morning hours of December 8, 2015, Detective Smith searched for any Facebook profiles associated with the name Claude Mayo. Detective Smith found one, which indicated that its user had connections to Baltimore.13 The Facebook profile included a photograph of an individual who looked “very similar, if not identical[,]” to Mayo. The Mayo Facebook profile was friends with a profile named “SoLo Haze[,]” and the SoLo Haze рrofile included a photograph of an individual whose physical characteristics were “very similar” to those of the individual who had been walking with Mayo in the area of Z-Burger. Detective Smith observed that the e-mail address that was registered with the second Facebook profile was
“m[]rsample[]2015@[g]mail.com.” Detective Smith took screenshots of both Facebook profiles, and requested records related to both profiles from Facebook. Over Sample‘s counsel‘s objection, the circuit court admitted the screenshots of the Facebook profiles into evidence.
Detective Smith testified that photographs in the Facebook Business Records concerning the claude.mayo.5 Facebook profile appeared to be photographs of Mayo. Detective Smith testified that the Facebook Business Records of the SoLo Haze profile indicated that, on the night of December 8, 2015, that profile was used to unfriend the claude.mayo.5 profile.14 Detective Smith testified that, on the night of December 7, 2015 or the early morning hours of December 8, 2015, he identified Sample as a suspect in the attempted armed robbery. Detective Smith testified that, at the time, Sample‘s status as a suspect was not yet public. Almost a week later, on December 14, 2015, a warrant for Sample‘s arrest was served.
On cross-examination, Detective Smith testified that he had seen a Facebook profile with the vanity name “claude.mayo.3[,]” and that the profile included photographs that might have looked similar to those on the claude.mayo.5 profile. Detective Smith testified that thеre were other Facebook profiles under the name “Claude Mayo.” Detective Smith acknowledged that he did not request records from Facebook regarding the “claude.mayo.3” Facebook profile, or any Facebook profile under the name “Claude Mayo” other than the claude.mayo.5 profile. Detective Smith testified that the claude.mayo.5 profile contained postings that were made after Mayo died on December 7, 2015, and that meant that someone other than Mayo used the claude.mayo.5 profile after Mayo‘s death. Detective Smith acknowledged that people
During Detective Smith‘s redirect examination, the prosecutor elicited that the claude.mayo.5 profile was friends with a Facebook profile under the name “Shantell Richardson[,]” who is Mayo‘s mother. The prosecutor elicited that, unlike the claude.mayo.5 profile—which included an image announcing a candlelight vigil—the “claude.mayo.3” Facebook profile did not include any references to Mayo‘s death. Detective Smith testified that he requested records from Facebook regarding the claude.mayo.5 profile, rather than the “claude.mayo.3” Facebook profile, because he believed that there was “a stronger connection” between Mayo and the claude.mayo.5 profile.
The prosecutor elicited that, to Detective Smith‘s knowledge, the “[m]r[s]ample2015@gmail.com” e-mail address was registered with only one Facebook profile under the name “SoLo Haze[.]” The prosecutor elicited that the Facebook Business Records indicated that the claude.mayo.5 profile was the only one unfriended from the SoLo Haze profile during the dates to which the Facebook Business Records pertained.
As a witness for the State, Detective Robert Caskey of the Baltimore County Police Department testified that, on December 14, 2015, he and Detective Smith met with Sample in an interview room at a police station. Detective Caskey acknowledged that no recording of his and Detective Smith‘s interview of Sample was available. Detective Caskey testified that Sample waived his Miranda rights and agreed to provide a statement. One of the detectives asked Sample whether he was in the Towson area during the time of the attempted armed robbery. Sample responded in the negative, and said that, at the time, he was in Baltimore City at the residence of Skkyla Lynn, who is the mother of his child. Detective Caskey asked Sample whether he had known Mayo, and he responded in the negative.
As a witness for the State, Detective Gary Childs of the Baltimore County Police Department testified that, on December 7, 2015, at approximately 10:30 or 11 p.m., he learned that a woman had been calling several hospitals and asking about her son, who she believed had been involved in the attempted armed robbery. Detective Childs learned that the woman was Richardson, and that her son was Mayo. Detective Childs met with Richardson, and, before informing her of Mayo‘s death, asked her what phone numbers Mayo had used. Richardson provided the number 443-707-6420. Detective Childs also spoke to a man named Wilkins, who knew Sample and provided the phone number 443-403-9522. Detective Childs sought and received phone records for the two numbers. The phone records, which the circuit court admitted into evidence, indicated that, on December 7, 2015, in the afternoon and early evening, the two phone numbers called each other several times.
As a witness for the State, Special Agent Mathew Wilde of the Federal Bureau of Investigation testified that he was a member of its Cellular Analysis Survey Team. The circuit court admitted Special Agent Wilde as an expert in the field of historical cellular record analysis. Special Agent Wilde testified that he analyzed cell phone records for the number 443-403-9522 to determine the location of the cell phone on December 7, 2015. Special Agent Wilde
During closing argument, Sample‘s counsel addressed the Facebook-related evidence as follows:
The Facebook[-related] evidence was fascinating, and I submit that those records just aren‘t reliable. It‘s the nature of the medium itself and who can post information, who can open an account, who can take down information. It‘s not that secure, and I think it came out that . . . anybody could open up a Facebook page under any name[,] and there is no checkup, just none.
Could go so far as to [P]hoto[]shop15 someone‘s face on[]to your body and post that picture on [Facebook], and there is no check on that. So, under those circumstances, unless they can tell you specifically who, when[,] and what device was used, and tie that device to a specific individual at a certain time, they‘re speculating. The lack of reliability alone should raise a reasonable doubt.
The jury found Sample guilty of attempted robbery with a dangerous weapon, first-degree assault, possession of a handgun after conviction of a disqualifying crime, and two counts of use of a handgun in the commission of a felony or crime of violence. The circuit court sentenced Sample to twenty years of imprisonment for attempted robbery with a dangerous weapon, five years concurrent (without the possibility of parole) for one count of use of a firearm in the commission of a crime of violence, twenty-five years consecutive for first-degree assault, five years concurrent (without the possibility of parole) for the other count of use of a firearm in the commission of a crime of violence, and five years consecutive for possession of a firearm after conviction of a disqualifying crime.
Opinion of the Court of Special Appeals
Sample appealed. On July 31, 2019, the Court of Special Appeals reversed Sample‘s convictions and remanded for a new trial. See Sample, 2019 WL 3451812, at *5. The Court of Special Appeals held that the circuit court abused its discretion in admitting information related to the Facebook Business Records because there was insufficient evidence to show that Sample used the SoLo Haze Facebook profile to unfriend the claude.mayo.5 Facebook profile. See id. at *4. The Court of Special Appeals reasoned:
Although there may have been enough evidence for a juror to conclude that the [SoLo Haze Facebook profile] was created by [Sample], the State failed to proffer any evidence to show that [Sample unfriended] the [claude.mayo.5 Facebook profile]. Unlike the consolidated cases in Sublet, [442 Md. 632, 113 A.3d 695,] there was effectively no evidence that [Sample] took the action at issue.
The State stresses that relatively few people would have known of the shooting at the time [the ]So[L]o Haze [Facebook profile un]friended [the c]laude[.m]ayo[.]5[ Facebook
profile]. There is, however, insufficient evidence for a reasonable juror to conclude that [Sample] was the person who took that action. Another person within the same social circle could have heard of the shooting in the more than twenty-four hours after the shooting, accessed the So[L]o Haze [Facebook profile], and removed Mayo as a friend of the profile. That possibility is demonstrated by the fact that someone logged into the [c]laude[.m]ayo[.]5 profile after Mayo‘s death and posted a fl[y]er for Mayo‘s [candlelight vigil]. Without evidence of [Sample] controlling the profile (such as evidence linking the profile to [Sample]‘s phone or computer), a reasonable juror could only speculate that [Sample] took the action at issue. By admitting the action [that had been] taken on the “So[L]o Haze” Facebook p[rofile] without a showing that [Sample] took that action, the circuit court abused its discretion.
Sample, 2019 WL 3451812, at *4 (cleaned up).16
Petition for a Writ of Certiorari
On September 20, 2019, the State petitioned for a writ of certiorari, raising the following issue: “Did the Court of Special Appeals err by holding that the mere abstract possibility of unauthorized access to Sample‘s Facebook account barred any reasonable juror from finding that [Sample] was responsible for the account entry in question ([unfriending the claude.mayo.5 Facebook profile)]?” On November 6, 2019, this Court granted the petition. See Sample, 466 Md. 310, 219 A.3d 526.
DISCUSSION
The Parties’ Contentions
The State contends that the circuit court determined, and the Court of Special Appeals did not dispute, that a reasonable juror could have found that the SoLo Haze Facebook profile belonged to Sample. The State argues that the Court of Special Appeals‘s theory that another person in Sample‘s social circle may have used the SoLo Haze profile to unfriend the claude.mayo.5 profile is not grounded in evidence. The State asserts that, without more, the evidence that the SoLo Haze profile belonged to Sample would allow a reasonable juror to find that he used that profile to unfriend the claude.mayo.5 profile. The State maintains that such а finding would be supported by other circumstances, including that Sample was one of “select [f]ew people” with a motive to sever ties with Mayo the day after the attempted armed robbery and Mayo‘s death, and that Sample‘s and Mayo‘s cell phones called each other multiple times in the hours leading up to the crime, but Sample denied knowing Mayo during an interview with detectives.
The State contends that the Court of Special Appeals erred in reasoning that, because it was possible that someone other than Sample used the SoLo Haze Facebook profile to unfriend the claude.mayo.5 Facebook profile, no reasonable juror could find that Sample was the one who did so. The State argues that such a possibility went to the weight, not the admissibility, of the Facebook-related evidence. The State asserts that, contrary to the Court of Special Appeals‘s reasoning, the circumstance that someone logged into the claude.mayo.5 profile after Mayo‘s death
Sample responds that, although there was evidence that he had created the SoLo Haze Facebook profile, the State failed to meet the burden of offering evidence sufficient to demonstrate that he used the SoLo Haze profile to unfriend the claude.mayo.5 profile. Sample points out that there was not any technical evidence, such as testimony regarding research of his phone or computer, linking him tо the unfriending of the claude.mayo.5 profile. Sample argues that, without more, the act of unfriending the claude.mayo.5 profile did not reveal who did so. Sample asserts that the circumstance that someone logged into the claude.mayo.5 profile after Mayo‘s death shows that it was not farfetched to infer that someone other than him could have used the SoLo Haze profile to unfriend the claude.mayo.5 profile.
Standard of Review
An appellate court reviews for abuse of discretion a trial court‘s determination that social media evidence was sufficiently authenticated. See Sublet, 442 Md. at 676, 113 A.3d at 721; Griffin, 419 Md. at 357, 19 A.3d at 423.
Authenticating Social Media Evidence
(a) General Provision
The 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.
(b) Illustrations
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Rule:
(1) Testimony of Witness With Knowledge
Testimony of a witness with knowledge that the offered evidence is what it is claimed to be.
* * *
(4) Circumstantial Evidence
Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.
(Cross reference omitted).
In Griffin, 419 Md. at 347, 357, 19 A.3d at 418, 423-24, a case involving a murder prosecution, this Court held that a trial court abused its discretion in admitting, at the State‘s request, alleged printouts of the defendant‘s girlfriend‘s MySpace profile, as the same had not been sufficiently authenticated under
The State called the defendant‘s girlfriend as a witness, but the prosecutor did not question her about the printouts. See id. at 348, 19 A.3d at 418. Rather, the State sought to authenticate the printouts through the testimony of the lead investigator. See id. at 348, 19 A.3d at 418. The defendant‘s counsel objected to the admission of the printouts, contending that there was insufficient evidence of a connection between the defendant‘s girlfriend and the “Sistasouljah” MySpace profile as well as the blurb. See id. at 348, 19 A.3d at 418. During voir dire outside of the presence of the jury, in response to a question as to how he knew that the “Sistasouljah” MySpace profile belonged to the defendant‘s girlfriend, the lead investigator testified that the “Sistasouljah” MySpace profile listed the defendant‘s girlfriend‘s date of birth, that the blurb referred to “Boozy,” and that there was a photograph of “Boozy” and the woman. Id. at 349, 19 A.3d at 418. The trial court observed that the woman looked like the defendant‘s girlfriend. See id. at 349, 19 A.3d at 418-19.
The trial court indicated that it would permit the detective to testify about a redacted version of the printouts, which contained the photograph of the person who looked like the girlfriend, the description of the woman as a twenty-three-year-old woman from Port Deposit, and the blurb about snitches getting stitches. See id. at 350, 19 A.3d at 419. The defendant‘s counsel objected to the admission of the investigator‘s testimony about the printouts, but joined a stipulation that was read to the jury. See id. at 350, 19 A.3d at 419. The stipulation advised that the lead investigator would have testified that he made the printouts, that he recognized the woman in the photograph as the defendant‘s girlfriend, and that she told him her date of birth was October 2, 1983. See id. at 350, 19 A.3d at 419.
The jury found the defendant guilty. See id. at 346, 19 A.3d at 417. The defendant appealed, and the Court of Special Appeals affirmed. See id. at 346, 19 A.3d at 417. The defendant filed a petition for a writ of certiorari, which this Court granted. See id. at 346, 19 A.3d at 417. This Court reversed and remanded for a new trial. See id. at 347-48, 19 A.3d at 418. This Court observed that the prosecutor did not attempt to authenticate the printouts through the testimony of a witness with knowledge under Maryland Rule 5-901(b)(1), as the prosecutor did not ask the defendant‘s girlfriend about the printouts. See id. at 355 & n.11, 19 A.3d at 422 & n.11. This Court determined that the prosecutor did not sufficiently authenticate the printouts through circumstantial evidence under Maryland Rule 5-901(b)(4), as the printouts’ inclusion of the defendant‘s girlfriend‘s date of birth, the town in which she lived, and the photograph of her did not sufficiently indicate that she created the “Sistasouljah” MySpace profile and wrote the blurb. See id. at 357, 19 A.3d at 423-24. This Court explained:
The potential for abuse and manipulation of a social networking [web]site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a [web]site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the [“Sistasouljah” MySpace profile] to reflect that
[the defendant‘s girlfriend] was its creator and the author of the [blurb].
Id. at 357-58, 19 A.3d at 424 (footnote omitted).
We cautioned that the holding did not mean “that printouts from social networking [web]sites should never be admitted[,]” and we suggested methods for authenticating the same. Id. at 363, 19 A.3d at 427. We suggested thаt the proponent of the social media evidence could authenticate the evidence through the testimony of a person with knowledge under
In a dissenting opinion that the Honorable Joseph F. Murphy, Jr. joined, the Honorable Glenn T. Harrell, Jr. stated that he would adopt the test for authentication that nearly all United States Courts of Appeals, including the Second Circuit, had embraced. See id. at 366, 19 A.3d at 429 (Harrell, J., dissenting). Under that test, “a document is properly authenticated if a reasonable juror could find in favor of authenticity.” Id. at 366, 19 A.3d at 429 (Harrell, J., dissenting) (quoting United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007)) (cleaned up). Applying the “reasonable juror” test, Judge Harrell concluded that, in light of the circumstantial evidence, a reasonable juror could have found that the defendant‘s girlfriend was the one who wrote the blurb. See Griffin, 419 Md. at 367, 19 A.3d at 429 (Harrell, J., dissenting).
Four years after Griffin, in 2015, in Sublet, 442 Md. at 678, 113 A.3d at 722, in an opinion that consolidated three cases, this Court held that, to authenticate social media evidence, there must be proof from which a reasonable juror could find that the evidence is what it purports to be. Utilizing this standard in each of the three cases, this Court affirmed the trial court‘s judgment. See id. at 678, 113 A.3d at 722. This Court observed that, in Griffin, 419 Md. at 363-64, 19 A.3d at 427-28, we had “suggested . . . three non-exclusive” methods of sufficiently authenticating printouts from social networking websites. Sublet, 442 Md. at 663, 113 A.3d at 713 (emphasis omitted).
This Court observed that, in United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), which involved facts that were analogous to Griffin‘s, the Second Circuit, quoting
[A]uthentication[,] of course[,] merely renders evidence admissible, leaving the issue of its ultimate reliability to the jury. Thus, after the proponent of the evidence has adduced sufficient evidence to support a finding that the proffered evidence is what it is claimed to be, the opposing party remains free to challenge the reliability of the evidence, to minimize its importance, or to argue alternative interpretations of its meaning, but these and similar other challenges go to the weight of the evidence—not to its admissibility.
Sublet, 442 Md. at 668-69, 113 A.3d at 716-17 (cleaned up). Consistent with the Second Circuit‘s opinion in Vayner and the dissent in Griffin, 419 Md. at 366, 19 A.3d at 429 (Harrell, J., dissenting), for purposes of social media evidence, this Court adopted the “reasonable juror” test used by most United States Courts of Appeals, including the Seсond Circuit. See Sublet, 442 Md. at 671, 113 A.3d at 718. We held that, to admit social media evidence, a trial court “must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims[.]” Id. at 678, 113 A.3d at 722.
In the first of the consolidated cases, Sublet v. State, where, during an assault trial, the defendant‘s counsel sought to introduce into evidence printouts of a conversation on a Facebook page indicating that the defendant had not been the aggressor, this Court concluded that two of the entries on the Facebook page were not sufficiently authenticated, as there was testimony that the owner of the Facebook page (the person who was alleged to have made the entries) permitted others to use her username and password. See Sublet, 442 Md. at 638-39, 672, 113 A.3d at 698-99, 718-19. The owner of the page testified that she had shared her Facebook username and password with others, and that other people could presumably access her Facebook page and input information. See id. at 672, 113 A.3d at 719. We held that no reasonable juror could have found that the owner of the Facebook page made the postings at issue. See id. at 672-73, 113 A.3d at 718-19. We observed that the defendant‘s counsel did not authenticate the postings through the testimony of a witness with knowledge under
This Court determined that the defendant‘s counsel did not sufficiently authenticate the postings through circumstantial evidence under
In the second case, Harris v. State, where, during an attempted murder trial,
In determining that the direct messages had been properly authenticated, we observed that the circumstance that the planned shooting occurred the day after the direct messages were sent indicated that the messages were written by someone with knowledge of the plan, and a witness had testified that only seven people, including the defendant, heard the conversation about the plan for revenge that was later relayed over social media in the direct messages. See id. at 674-75, 113 A.3d at 720. We noted that the direct messages referenced a plan for retaliation that had “been created in response to events occurring that same day.” Id. at 674, 113 A.3d at 720. We observed that there had been testimony that the “TheyLovingTc” Twitter profile belonged to the defendant. See id. at 674-75, 113 A.3d at 720. We concluded that, based on the temporal proximity of the tweets (which were authored within ten minutes of the direct messages) to the direct messages, and the circumstance that the direct messages had been sufficiently authenticated, a reasonable juror could also have found that the tweets were authentic. See id. at 675-76, 113 A.3d at 720-21. In other words, this Court determined that a reasonable juror could determine that the defendant used the “TheyLovingTc” Twitter profile to write the direct messages as well as tweets. See id. at 675-76, 113 A.3d at 720-21.
In the third case, Monge-Martinez v. State, during an attempted murder trial in which the defendant, Carlos Monge-Martinez, was accused of stabbing his former girlfriend, the State sought to introduce Facebook messages allegedly sent on the same day of the stabbing by the defendant from a Facebook profile named “Carlos Monge” to his former girlfriend indicating remorse for his actions. See Sublet, 442 Md. at 652-53, 113 A.3d at 707. The State argued that there was sufficient evidence to authenticate the messages because the former girlfriend testified that the defendant wrote the messages, the date and time stamps on the messages indicated that they were sent on the same day of the stabbing, and the messages were written in Spanish, the defendant‘s native language, and referenced the stabbing. See id. at 676-77, 113 A.3d at 721. We agreed. See id. at 676, 113 A.3d at 721.
We determined that the State sufficiently authenticated the messages through circumstantial evidence under
Analysis
Here, we conclude that the circuit court did not abuse its discretion in admitting the Facebook-related evidence, as there was sufficient circumstantial evidence under
We begin by explaining the standard of proof for authentication of social media evidence under
In Griffin, 419 Md. at 358 n.12, 19 A.3d at 424 n.12, we observed that the “reasonable juror” test is derived from
In sum, by adopting the “reasonable juror” test in Sublet, 442 Md. at 671, 113 A.3d at 718, this Court concurrently adopted the “preponderance of the evidence” standard of proof that goes with the test. For a trial court to admit social media evidence, there must be sufficient evidence for a reasonable juror to find that the social media is authentic by a preponderance of the evidence. “[P]reponderance of the evidence” means “more likely than not[.]” Pete v. State, 384 Md. 47, 60 n.15, 862 A.2d 419, 426 n.15 (2004) (citations omitted). Accordingly, we reaffirm our holding in Sublet, 442 Md. at 678, 113 A.3d at 722, and conclude that, where there is an issue as to authenticating social media evidence, the question is whether there is sufficient evidence for a reasonable juror to find that it is more likely than not that the social media evidence is what the proponent of the evidence purports it to be.20
Where a party attempts to authenticate social media evidence through circumstantial evidence under
Here, there was sufficient circumstantial evidence under
as opposed to someone in a different or unknown location. In other words, the SoLo Haze profile contained sufficient distinctive characteristics from which the circuit court could determine that a reasonable juror could find that Sample was the owner of the profile. See Sublet, 442 Md. at 674, 113 A.3d at 720. In any event, Sample does not deny and indeed acknowledges that there is sufficient evidence for a reasonable juror to conclude that the SoLo Haze profile belongs to him; rather, Sample merely contends that his ownership of the account does not establish that he used the account to unfriend the Mayo profile.
There was also sufficient circumstantial evidence under
In addition to observing that the claude.mayo.5 profile contained Mayo‘s name and was friends with a profile with Mayo‘s mother‘s name, the circuit court concluded that information in the claude.mayo.5 profile consisting of posts about Mayo‘s death indicated that the profile belonged to Mayo. The circuit court observed that the Facebook Business Records regarding the claude.mayo.5 profile indicate that, on December 8, 2015, someone tried to log into that profile twice, and only the second attempt was successful. On December 8, 2015, someone uploaded a photograph of a
We are satisfied that there was sufficient circumstantial evidence under
Given that there was evidence that Sample was the surviving attempted robber, i.e., Mayo‘s accomplice, Sample had a motive to sever ties with Mayo after the attempted armed robbery. At the hearing on the motion in limine, the State argued that surveillance video showed the two men walking together about fourteen minutes before the crime occurred. The State also argued that cell phone records showed that there was a phone call made by Sample
These circumstances indicate that Sample was not a mere bystander or potential eyewitness to the attempted armed robbery. To the contrary, if believed, the State‘s argument at the hearing on the motion in limine demonstrated that Sample was Mayo‘s accomplice, and had reason to distance himself from Mayo by unfriending him on Facebook. These circumstances, coupled with the evidence of Sample‘s and Mayo‘s ownership of the Facebook profiles, were more than sufficient for a reasonable juror to find that it was more likely than not that Sample was responsible for the unfriending.24
This case is comparable to Harris and Monge-Martinez, cases in which this Court held that the State sufficiently authenticated social media evidence. See Sublet, 442 Md. at 678, 113 A.3d at 722. Just as this Court concluded that the content and timing of the Twitter messages in Harris were circumstances from which a trial court could determine that a reasonable juror could have found that the Twitter messages were authored by the defendant, see id. at 674-76, 113 A.3d at 720-21, here, the circumstances that the unfriending occurred the very next day after the attempted armed robbery, that Sample had incentive to distance himself from Mayo, and that circumstantial evidence demonstrated that the SoLo Haze profile belonged to Sample and the claude.mayo.5 profile belonged to Mayo lead to the same conclusion, i.e., a reasonable juror could have found the unfriending was done by Sample. Similarly, just as it was material in Monge-Martinez that the stabbing and
Facebook profile name, see id. at 677, 113 A.3d at 721-22, here, it is significant that the unfriending occurred the very next day after the attempted armed robbery, and that Sample‘s name is similar to the SoLo Haze Facebook profile name and the “mrsample2015@gmail.com” e-mail address associated with the profile. Moreover, as in Monge-Martinez, in this case, the action that Sample allegedly took on Facebook—unfriending the claude.mayo.5 profile—was indicative of consciousness of guilt, which constituted circumstantial evidence that he was the one who used the Facebook profile at issue. See id. at 652-53, 113 A.3d at 707.
Just as the circumstances of this case are similar to those of Harris and Monge-Martinez, they are distinguishable from Sublet, id. at 678, 113 A.3d at 722, a case in which this Court held that the defendant failed to sufficiently authenticate social media evidence. Here, in contrast to Sublet, 442 Md. at 672, 113 A.3d at 719, there is no evidence that Sample ever gave the SoLo Haze Facebook profile‘s password and username to others. We are aware that Sample contends that, because someone accessed the claude.mayo.5 Facebook profile after Mayo‘s death and posted information about the death, someone other than him may have accessed the SoLo Haze Facebook profile and unfriended Mayo. But, as the State contends, this is speculation not grounded in evidence. Put simply, there is no evidence that anyone other than Sample ever had access to the SoLo Haze profile, much less that someone other than him used that profile to unfriend the claude.mayo.5 profile.
Requiring the State to somehow conclusively disprove that someone other than Sample was responsible for the unfriending would establish too high a standard for authenticating social media evidence. The State was not required to eliminate all possibilities that were inconsistent with authenticity, or provе beyond any question that Sample was the one who used the SoLo Haze Facebook profile to unfriend the claude.mayo.5 Facebook profile. See Sublet, 442 Md. at 666, 113 A.3d at 715. Instead, the State needed to prove only that there was sufficient evidence for a reasonable juror to find by a preponderance of evidence, i.e., that it was more likely than not, that Sample was responsible for the unfriending. See id. at 678, 113 A.3d at 722. We conclude that the State met that requirement. As explained above, there was ample circumstantial evidence for the circuit court to conclude that a reasonable juror could find that the SoLo Haze Facebook profile belonged to Sample and that the claude.mayo.5 Facebook profile belonged to Mayo, and that combined with the circumstances surrounding the unfriending—was sufficient for the circuit court to allow the social media evidence to be presented to the jury.
For the above reasons, the circuit court did not abuse its discretion in admitting the Facebook-related evidence. We reverse and remand to the Court of Special Appeals for that Court to address the other issues raised by Sample on appeal. See Sample, 2019 WL 3451812, at *1, *5 n.1.
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED. CASE REMANDED TO THAT COURT WITH INSTRUCTION TO ADDRESS THE REMAINING ISSUES THAT RESPONDENT RAISED ON APPEAL. RESPONDENT TO PAY COSTS.
The correction notice(s) for this opinion(s) can be found here: https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/54a19cn.pdf