691 text messages—a tale of authenticity, relevance, and hearsay.

By Brad McCullough

The Court of Special Appeals recently faced a case where 691 text messages played a significant role in the conviction of a defendant charged with drug offenses. Challenging the admission of those messages at trial, the defendant raised issues of authenticity, relevance and prejudice, and hearsay. Having failed in his efforts at trial, he appealed. But he fared no better in the Court of Special Appeals than he had in the Circuit Court for Talbot County, as the appellate court affirmed his conviction. Sykes v. State, No. 2132, Sept. Term, 2019 (Nov. 18, 2021). 

Brandon Sykes was in the front passenger seat of a car that was pulled over for a routine traffic stop. The police officer eventually called for a specially-trained police dog. Upon arrival, the dog indicated that the car contained narcotics. Additional police backup arrived and searched the car. The search uncovered eighty-four packets of suspected narcotics, i.e. a large bag containing seventy-three paper folds with a tan powdery material and eleven plastic bags with a rock-like substance. A field test showed the substance was heroin, and that conclusion was later confirmed by a lab test. 

While the police were searching the car, one officer placed Sykes in the back seat of the police car. That officer saw Sykes take a smart phone from his pocket, unlock it, make a call, and talk on it. Another officer also observed Sykes on the phone and seized the phone from him. Both Sykes and the car’s driver were charged with possession of a controlled dangerous substance and possession with intent to distribute.

The police obtained a search warrant for Sykes’s phone. Investigators downloaded text messages and other data into an extraction report. “The State created a printout with 691 text messages sent or received in the ten days prior to Sykes’s arrest.” During two pre-trial hearings, Sykes argued “that the State failed to demonstrate authenticity, the text messages contained hearsay, and the text messages were irrelevant and prejudicial.” The circuit court ultimately denied Sykes’s motion in limine, seeking to exclude the evidence.

At trial, Sykes and the prosecution “stipulated that the text messages listed in the State’s printout came from the phone that was seized from Sykes.” The court overruled Sykes’s renewed objection to the printout. The State “called Sergeant Crouch, who was offered as an expert in filed drug investigations and interdictions with expertise in drug paraphernalia, sales, and terminology.” The defense objected, arguing that the State had not properly disclosed Sergeant Crouch’s findings and opinion or the grounds for that opinion. The court overruled that objection. Sergeant Crouch then “testified regarding numerous text messages, both incoming and outgoing, and gave his opinion that the contents of these messages were consistent with distribution.” He also testified that the amount of narcotics seized from the car “was consistent with quantities used for distribution.” The jury found Sykes guilty of possession with intent to distribute.

In an opinion authored by Judge Ripken, and joined by her fellow panelists Judges Berger and Wells, the Court of Special Appeals affirmed. In his appeal, Sykes challenged the circuit court’s decision to admit the text messages extracted from his phone, as well as the circuit court’s decision allowing Sergeant Crouch’s expert testimony. This post will discuss only the first of those two issues.

In addressing that issue, the Court of Special Appeals first turned its attention to Sykes’s authenticity argument, noting that it would review “the trial court’s decision for abuse of discretion.” The Court explained that Md. Rule 5-901(a) provides that “authentication of evidence, including electronically stored evidence, is a condition precedent to its admissibility,” and that condition is met if there is sufficient evidence to support a finding that the evidence is what the proponent claims it to be. The proponent’s burden is slight and the standard is a preponderance of the evidence. The trial court does not have to “find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.” The question a trial court must answer is “whether a reasonable juror might find more likely than not that the evidence is what it purports to be.” If the answer is yes, the evidence has been sufficiently authenticated and should be admitted.

Section (b) of Rule 5-901 contains “a non-exhaustive list of the manners in which evidence may be authenticated.” One way is through witness testimony, based on knowledge that the evidence is what it claims to be, or circumstantially through “appearance, contents, substance, internal patterns, location, or other distinctive characteristics.” Here, two police officers testified that they saw Sykes use the cell phone around the time he was arrested. Because his possession and use were consistent with ownership of the phone, “a reasonable juror could find that the phone was what the State purported it be—a cell phone belonging to Sykes.” 

A reasonable juror could also find that Sykes sent the messages extracted from that phone. Evidence that the phone belonged to Sykes was by itself strong evidence that he wrote those messages. Plus, the drug-related messages occurred within ten days of his arrest, and the only other person in the car when he was arrested also had a cell phone. The content of those messages “was also consistent with the evidence of Sykes’s arrest with a large quantity of heroin.” And Sergeant Crouch “testified that the terminology used in the text messages was consistent with heroin transactions.” The “collective circumstances,” along with evidence that Sykes owned the phone, supported “the circuit court’s conclusion that a juror could find more likely than not that Sykes authored the text messages.”

The Court of Special Appeals next addressed Sykes’s relevance and prejudice arguments. An appellate court reviews a trial court’s relevance determination de novo, but reviews the determination whether to admit or exclude relevant evidence under an abuse of discretion standard. Sykes argued “that the text messages discussing drug transactions were irrelevant because they could have been consistent with other drugs that were not heroin, and that the expert testimony interpreting such text messages acknowledged as much.” Sergeant Crouch, however, testified that “the number of texts from customer soliciting drugs stood out as a significant indicator that the drugs found in Sykes’s possession were for commercial use rather than personal use, although he could not say for certain whether the drug transactions were for heroin.” But that did not matter, because the text messages “still make it more likely that Sykes had the intent to distribute the drugs found in his possession.” The non-drug-related text messages, on the other hand, were not relevant and should not have been admitted, yet that error was harmless, because they “in no way contributed to the guilty verdict.”

Sykes argued that the text messages were “highly prejudicial because they invite the jury to make improper inferences based on Sykes’s propensity to distribute drugs.” Md. Rule 5-404(b) allows a trial judge to exclude evidence only if the danger of unfair prejudice substantially outweighs the evidence’s probative value. As already discussed, the texts, together with the expert testimony, were “probative as to both possession of the heroin and intent to distribute the heroin.” Prejudice is unfair only if it may have some adverse effect beyond simply proving the fact that justified its admission in the first place. That risk did not exist, and the Court rejected the argument. 

The Court turned to Sykes’s hearsay argument. Whether evidence constitutes hearsay is a legal issue that an appellate court reviews de novo. The Court reminded that Rule 5-801 defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Thus, a hearsay objection raises two issues: is the declaration a statement, and is it offered for the truth of the matter asserted in the statement. The parties agreed that the text messages were statements. The issue was whether they had been offered for the truth. 

Relying heavily on Garner v. State, 414 Md. 372 (2020), the Court addressed the incoming texts requesting a specific amount of drugs and outgoing messages responding to those requests. Those messages were the “verbal parts of a drug transaction, with the cell phone being an instrumentality of the crime.” They were not offered to prove that specific transactions occurred. They were instead offered to show that Sykes possessed a phone that received and sent messages regarding drug purchases. “The text messages had legal significance, to prove that drug transactions were discussed whether or not the offers were accurate or genuine.” Those messages were “verbal acts” and thus non-hearsay.

Other drug-related messages, however, were not offers or proposed transactions, but instead simply referred to drugs. They were not verbal acts. Yet a statement is not hearsay if “the very making of the statement, instead of the truth or falsity of the contents, is the fact at issue.” That was the case with the non-transactional, but drug-related, text messages, as they were offered as probative circumstantial evidence. For example, one message referred to the relative weight of two drug packages. That message was not offered to prove that Sykes sold two packages—and that one package contained more drugs to compensate for the earlier skimpier package—but “to demonstrate that the phone in Sykes’s possession engaged in drug-related transactions.” Thus, it and other similar messages were not hearsay.  

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