State v. Bouknight , 323 Conn. 620 ( 2016 )

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STATE OF CONNECTICUT v. DERRICK BOUKNIGHT
(SC 19326)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued October 17—officially released November 22, 2016
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, Michael Dearington, former state’s attorney,
and Michael Pepper, supervisory assistant state’s attor-
ney, for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Derrick Bouknight,
appeals1 from the judgment of conviction, rendered
after a jury trial, of murder in violation of General Stat-
utes § 53a-54a (a), using a firearm in the commission
of a felony in violation of General Statutes § 53-202k,
carrying a pistol without a permit in violation of General
Statutes § 29-35, and criminal possession of a pistol or
revolver in violation of General Statutes § 53a-217c (a)
(1). On appeal, the defendant claims that the trial court
abused its discretion in ruling that a Facebook2 profile
page and photographs thereon were properly authen-
ticated.
The following facts and procedural history are rele-
vant to the present appeal, which arises out of a deadly
shooting in the city of New Haven following a dispute
between the victim, William Baines, and some of his
neighbors. Baines lived in a house on West Division
Street in New Haven with his girlfriend, Norma Monique
Walters, and her cousin Ella Charie Evans. On October
9, 2010, Baines had won a physical altercation with
Sherrod Daniels, which had started over a $100 debt
that Baines believed Daniels owed him. Later that day,
Baines and Daniels engaged in a verbal argument near
the intersection of West Division Street and Dixwell
Avenue. Walter’s mother, Patricia Outlaw, was in the
vicinity, intervened, and told Baines to calm down. After
speaking briefly with Outlaw, Baines headed back to
his house, which was just a short distance away. Soon
thereafter, Daniels approached Baines’ house with two
other individuals. One of these individuals gave Outlaw
$100 which was, in turn, given to Baines.
Later, there was an altercation between Baines and
Korey Streater, who was a friend of Daniels. During
that altercation Baines punched Streator and knocked
him to the ground in front of a crowd of spectators.
Again, Outlaw intervened and broke up the conflict.
A short while later, Baines was sitting on the front
steps of his house with his mother, Tracy Fulton, his
cousin, Michael Nicholson, and Nicholson’s friend,
Anthony Little. As Nicholson spoke to Baines, the defen-
dant approached through an empty lot adjacent to the
house. The defendant and Baines engaged in a heated
discussion, during which the defendant demanded to
know where the money was. Baines replied, ‘‘[I]t ain’t
got nothing to do with you,’’ ‘‘it’s mine,’’ and ‘‘I don’t
owe nobody no money . . . .’’ The defendant and
Baines continued to argue like this for a few minutes.
Evans, who had been inside the house, came out onto
the porch. She recognized the defendant, with whom
she was very familiar from having lived in the area.
Evans observed that the defendant was wearing a plaid
shirt with a black hood and a baseball cap that bore
‘‘some type of [crossed] symbol’’ and had a red under-
side to its bill. He was also wearing a pair of acid-
washed jeans, which Evans had noticed him wearing
on previous occasions.
As the argument between the defendant and Baines
escalated, Baines stood up from the steps, and the
defendant pulled out a black semiautomatic handgun.
Both Evans and Nicholson observed that the defendant
was wearing a black glove on his right hand, with which
he held the gun, but was wearing no glove on his left
hand. Evans pleaded with the defendant to look at her
and reminded the defendant that Baines’ mother was
right there. Nevertheless, the defendant raised his gun
and, from a distance of between a few inches to an arm’s
length, fired one shot into Baines’ chest, killing him.
As Baines fell, the defendant began to walk east along
West Division Street toward Dixwell Avenue. He
stopped briefly, turned back toward where Baines lay
on the ground, and pointed the gun toward those stand-
ing at the scene. As the defendant continued to walk
away, he encountered Walters, who was walking west.
The defendant then turned into a vacant lot and fled.
Later that day, Evans identified the defendant from
a police photographic array. Three days later, Walters
likewise identified the defendant from a photographic
array as the man she had seen fleeing the scene of
Baines’ murder.
The defendant was not seen in the vicinity of West
Division Street and Dixwell Avenue after the shooting.
He had fled to Elizabeth, New Jersey, where the Con-
necticut Violent Crimes Fugitive Task Force of the
United States Marshal Service (task force) located and
arrested him on November 5, 2010. At the time of his
arrest, the defendant was wearing a New York Yankees
baseball cap with a red underside to its bill and one
black glove on his right hand. He was not wearing a
glove on his left hand.
During the course of the trial, the state proffered
testimony by Officer Steven Manware, a New Haven
police officer assigned to the task force, who was
charged with the task of locating the defendant follow-
ing the shooting. Manware testified outside the pres-
ence of the jury that the task force uses the Internet to
track suspects and will often search social networking
websites, including Facebook. During his investigation
into the defendant’s whereabouts in 2010, Manware
found a Facebook profile bearing the defendant’s name.
At the state’s request, in preparation for trial, Manware
again accessed the defendant’s Facebook page in 2014,
and printed a portion of the Facebook profile and sev-
eral photographs that he found there. Manware testified
that the page and the photographs were the same as
they appeared in 2010.
Subsequently, the state proffered printouts of a Face-
book profile page and three photographs associated
with that profile as exhibits. The defendant objected
to the admission of these exhibits, arguing that there
was no evidence that he created or maintained the
Facebook profile or uploaded the photographs. The trial
court overruled the defendant’s objection and admitted
the exhibits into evidence. Following trial, the jury
returned a verdict finding the defendant guilty. The trial
court rendered judgment in accordance with the verdict
and sentenced the defendant to seventy years of incar-
ceration. This appeal followed. See footnote 1 of this
opinion.
On appeal, the defendant claims that the trial court
abused its discretion in admitting the exhibits from
Facebook. He asserts that: (1) the trial court never
found that the defendant created or maintained the
Facebook profile page or posted the photographs; (2)
the information on the Facebook profile page was
generic, easily obtainable and lacked the ‘‘ ‘distinctive
characteristics’ ’’ required to be authenticated on the
basis of circumstantial evidence alone; and (3) the trial
court, having improperly relied upon the ‘‘ ‘distinctive
characteristics’ ’’ method of authentication, never found
that the photographs were accurate reflections of the
scenes depicted and were not altered. In the defendant’s
view, because the profile page and the photographs
were not properly authenticated, the trial court improp-
erly admitted these exhibits into evidence. The state
counters that it adequately authenticated the exhibits
because: (1) the state showed that the Facebook profile
belonged to the defendant based upon the pervasive
consistency of the information and content found on
that page that indicated that the defendant owned the
page; and (2) the state was not obliged to establish that
the defendant created or posted the photographs to his
Facebook page, or to present a witness to testify that
they were fair and accurate representations of their
subject matter, rather, as photographs depicting the
identifiable defendant, they were admissible as substan-
tive evidence under the ‘‘ ‘silent witness’ ’’ rule of
authentication.
Assuming, without deciding, that it was improper
for the trial court to admit the evidence, we begin by
examining whether its admission was harmful. ‘‘When
an improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful. . . . [W]hether [an
improper ruling] is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Most importantly, we must examine the
impact of the . . . evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. Favoccia, 306 Conn. 770, 808–809, 51 A.3d
1002 (2012). We note that, in the present case, the defen-
dant makes no claim of constitutional error. For the
following reasons, we conclude that, even if this court
was to assume that the admission of the questioned
exhibits was improper, the ruling was harmless.
The state argues that any impropriety was harmless,
and that the case against the defendant was strong, as
multiple witnesses testified that they saw the defendant
shoot Baines. See, e.g., State v. Eleck, 314 Conn. 123,
130–31, 100 A.3d 817 (2014) (finding any error in exclud-
ing statements found on witness’ Facebook page harm-
less where, inter alia, multiple eyewitnesses testified
to defendant’s commission of crime); State v. Rodri-
guez, 311 Conn. 80, 91–92, 83 A.3d 595 (2014) (any
error in admitting testimony harmless where, inter alia,
multiple eyewitnesses testified to defendant’s involve-
ment in crime and incriminating statements); State v.
Bonner, 290 Conn. 468, 501, 964 A.2d 73 (2009) (any
error harmless where multiple eyewitnesses saw defen-
dant point gun at time of shooting, flee scene, or con-
fess). Evans, Nicholson, and Little each identified the
defendant as the shooter. Walters identified the defen-
dant as the man she encountered in immediate flight
from the scene of the shooting. Outlaw placed the defen-
dant in the vicinity immediately beforehand and inter-
acting with his ‘‘blood brother’’ Streater who had a
motive to seek revenge on Baines. Also, Evans, Nichol-
son, Little, and Walters each described the peculiar fact
that the defendant was wearing only one glove at the
time of the shooting, and Evans described the defen-
dant’s headwear, including its logo and the red under-
side of its bill. Manware corroborated all of this
testimony when he related how the defendant was
sporting a solitary black glove on his right hand and a
baseball cap with a red underside to its bill at the time
of his arrest. The state presented the glove and baseball
cap at trial. The photographs and printout, thus, were
merely cumulative of other properly admitted evidence.
The Facebook evidence also was largely innocuous
on its face and not particularly important to the state’s
case. Only one of the exhibits, state’s exhibit 50, which
depicted the defendant wearing a baseball cap and glove
matching the description of the shooter, was in any
way directly probative of the charged crimes. The other
two photographs were merely foundational evidence
for state’s exhibit 50. The photographs did not depict
the defendant committing a crime, and the state never
represented that they even depicted any events
occurring on the day of the shooting.
Moreover, the state presented ample evidence cor-
roborating the Facebook exhibits. See State v. Bonner,
supra, 290 Conn. 501 (any error harmless where ‘‘there
was ample additional evidence corroborating the chal-
lenged . . . testimony, and there was no evidence
offered to contradict it’’). Multiple witnesses testified
that the defendant went by the name of ‘‘Donut’’ and
that he lived near the convenience store depicted in
one of the photographs. The defendant did not contest
these facts at trial. The state also conclusively estab-
lished that the defendant possessed a baseball cap with
a red underside to its bill and a solitary right-handed
black glove when Manware testified that the defendant
was arrested while wearing items matching that
description, both of which the state entered into evi-
dence at trial. Further, the court did not limit the defen-
dant’s ability to challenge the Facebook evidence or
investigate whether any of it had been digitally altered.
See State v. Bonner, supra, 501 (any error harmless
where defendant had ‘‘full opportunity to cross-exam-
ine’’ witnesses who presented challenged testimony).
Nevertheless, when the defendant cross-examined
Manware, he did not elicit any testimony that under-
mined the credibility of these exhibits. The defendant
also did not present any evidence that he undertook
forensic analysis of either the photographs or the Face-
book profile to determine if they had been digitally
altered.
We agree with the state. The defendant has not met
his burden of showing that the admission of the evi-
dence had a substantial impact on the jury’s verdict. In
addition, the state’s case was strong. Numerous wit-
nesses identified the defendant as the one who shot
Baines. We conclude, therefore, that any error relating
to the admission of the evidence challenged by the
defendant would have been harmless.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant appealed from the judgment directly to this court pursuant
to General Statutes § 51-199 (b) (3).
2
Facebook is ‘‘a free, web-based social networking site with over 153
million members in the United States. . . . To join Facebook, a user must
provide his or her name, age, gender, and a valid e-mail address, and agree
to Facebook’s terms of service. . . . Once registered, a member receives
a [p]rofile page, may upload a profile photo[graph] representing him or
herself, and may establish connections with other members by approving
them as Facebook [f]riends.’’ (Citations omitted; internal quotation marks
omitted.) Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 791 (N.D. Cal. 2011).