Malik J. Moss v. State of Delaware ( 2017 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MALIK J. MOSS, §
§ No. 416, 2016
Defendant Below, §
Appellant, §
§ Court Below:
v. § Superior Court of the
§ State of Delaware
STATE OF DELAWARE, §
§ Cr. I.D. No. 1505002467 (N)
Plaintiff Below, §
Appellee. §
Submitted: June 14, 2017
Decided: June 28, 2017
Before STRINE, Chief Justice; VALIHURA and SEITZ, Justices.
This 28th day of June 2017, upon consideration of the briefs and record on appeal,
it appears to the Court that:
(1) Malik J. Moss (“Moss”) appeals from his conviction and sentence for Drug
Dealing, Disregarding a Police Officer’s Signal, Reckless Driving, and Possession of
Marijuana. Moss was also convicted of one count of Aggravated Possession, which the
Superior Court deemed merged with the Drug Dealing charge for sentencing purposes. 1
Just before midnight on April 30, 2015, Officer Donald Fisher of the New Castle County
Police Mobile Enforcement Team (“MET”) observed a Camaro that had been “flagged” by
the Delaware State Police (“DSP”) in reference to an investigation. 2 Officer Fisher
1
See Ex. A to Opening Br. (Sentence Order at 3); App. to Opening Br. at A654.
2
App. to Opening Br. at A36-37, A40.
1
followed the Camaro, and the driver of the Camaro accelerated rapidly through a residential
neighborhood, fleeing the officer. After Officer Fisher lost sight of the Camaro, he radioed
for backup. MET officers soon located the abandoned Camaro in an unrelated individual’s
front yard. The Camaro was not registered to Moss. However, MET officers found Moss’s
fingerprints on the car’s exterior and on heroin packaging found at the scene. None of the
prints matched Arthur Rossi (“Rossi”), who was the target of the DSP investigation that
resulted in the flag on the Camaro.3
(2) On the driver’s side floor of the Camaro, MET Officer Bryan Flores-Reyes
found 117 baggies of heroin stamped with a “light bulb” logo. He also found a cell phone
(the “Camaro Phone”) and marijuana. On the road nearby, he found a black plastic bag
containing 320 baggies of heroin with light bulb stamps, 342 baggies stamped “BMW,”
and 26 baggies stamped “Bully,” for a total of 688 baggies outside of the vehicle. The
State’s forensic chemist testified that she received an envelope containing 117 baggies with
a BMW stamp. In another envelope, she counted 341 additional baggies with BMW
stamps, 319 with light bulb stamps, 26 with Bully stamps, and 2 with no stamp. Thus, the
State’s witnesses disagreed about the number of baggies associated with each stamp. On
this basis, Moss objected to the admissibility of the drug evidence, arguing that the State
had failed to establish a proper chain of custody. The Superior Court overruled the
objection, holding that the discrepancy went to the weight of the evidence, not its
admissibility.
3
The Camaro was owned by Rossi’s ex-wife. Id. at A537.
2
(3) At trial, the State also offered reports showing data extracted from the
Camaro Phone and contacts downloaded from a phone seized during Moss’s arrest (the
“Moss Phone”). Detectives in the Tech Crimes Unit testified to using software called
“Cellebrite” to generate reports of each phone’s calls, contacts, text messages, web history,
and images. The reports admitted at trial (the “Camaro Phone Report” and “Moss Phone
Report”) indicated that approximately 55 of the 63 contacts in the Moss Phone matched
contacts in the Camaro Phone. Incoming messages on the Camaro Phone Report referred
to the person using the Camaro Phone as “Malik” or “Bleek,” which was the name Moss
used to identify himself when making phone calls from prison.
(4) Moss raised three objections to the cell phone data at trial. First, he argued
that expert testimony was required to admit both the Camaro Phone Report and the Moss
Phone Report. Second, Moss contended that the State failed to authenticate Camaro Phone
Report. Third, Moss argued that all of the text messages within the Camaro Phone Report
constituted inadmissible hearsay. In overruling these objections, the Superior Court held
that the detectives did not provide any expert opinion and therefore could testify as lay
witnesses. The court also held that the State had sufficiently authenticated the Camaro
Phone and its data. As to hearsay, the court deemed Rossi and an individual named Jamie
Birch (“Birch” or “40 Rome”) unavailable pursuant to D.R.E. 804(a). The court expressly
found that Rossi had evaded contact with the State. The court then found that references
to the stamps, drugs, or the Camaro constituted statements against interest pursuant to
D.R.E. 804(b)(3). Finally, the court held that references to “Malik” or “Bleek” were not
hearsay because they were not offered to prove the truth of the matter asserted. The jury
3
convicted Moss on all charges. In this direct appeal, he challenges these evidentiary
rulings.
(5) “In general, the decision of whether to admit evidence, in particular
circumstances, is within the trial judge’s discretion.”4 Thus, this Court “review[s] trial
court rulings on the admissibility of evidence for abuse of discretion.”5 We review alleged
constitutional violations de novo.6
(6) The Superior Court did not abuse its discretion in rejecting Moss’s chain of
custody challenge and in admitting the drug evidence over that objection. “The proper
standard for the admission of items into evidence over a chain of custody objection is
whether there is a reasonable probability that the evidence offered is what the proponent
says it is—that is, that the evidence has not been misidentified and no tampering or
adulteration has occurred.”7 “[W]hen there is no clear abuse of discretion, any breaks in
the chain of custody go only to the weight, not the admissibility, of the evidence.”8
(7) 10 Del. C. § 4331(1) defines “chain of custody” as the seizing officer,
packaging officer, and forensic chemist.9 Moss does not dispute that the State presented
4
Tricoche v. State, 525 A.2d 151, 152 (Del. 1987) (citations omitted).
5
Brown v. State, 117 A.3d 568, 578-79 (Del. 2015) (citing McNair v. State, 990 A.2d 398, 401
(Del. 2010); Stickel v. State, 975 A.2d 780, 782 (Del. 2009)).
6
Wheeler v. State, 135 A.3d 282, 295 (Del. 2016) (citing Bradley v. State, 51 A.3d 423, 433 (Del.
2012)).
7
Brown, 117 A.3d at 579 (quoting Word v. State, 2001 WL 762854, at *3 (Del. June 19, 2001))
(internal quotation marks omitted) (additional citation omitted); see D.R.E. 901(a).
8
Id. at 580 (citing Word, 2001 WL 762854, at *3).
9
10 Del. C. § 4331(1).
4
testimony from all witnesses necessary to complete the chain of custody pursuant to
Section 4331(1). The State also established as a matter of reasonable probability that the
drugs had not been misidentified or adulterated. The total number of baggies counted by
Officer Flores-Reyes and the forensic chemist was exactly the same—805. The State
argued that the discrepancy in the number of baggies allocated to each stamp population
could be attributed to error. Moss’s counsel had the opportunity to argue to the jury that
the stamp discrepancy rendered the evidence unreliable. The Superior Court did not abuse
its discretion in holding that the discrepancies went to the weight of the evidence, as
opposed to its admissibility.
(8) The Superior Court also did not abuse its discretion in admitting the Camaro
Phone Report. On appeal, Moss challenges the admissibility of the individual text
messages contained within the Camaro Phone Report on grounds of lack of authentication
as well as on hearsay grounds. As to his authentication challenge, he contends on appeal
that, “[t]he trial court failed to engage in a meaningful analysis as to whether the text
messages contained within the extraction report were properly authenticated.”10 But in
fairness to the trial judge, at trial, Moss presented a global authentication challenge to the
Camaro Phone Report in its entirety and raised only hearsay objections to the individual
messages within the Camaro Phone Report.11 Although Moss’s authentication and hearsay
10
Opening Br. at 29.
11
The closest Moss came to raising an authentication objection directed at the individual text
messages was when his counsel advised the trial court that he “object[ed] across the board to every
message on [the Camaro Phone] . . . [o]n the basis of hearsay and I maintain lack of foundation.”
App. to Opening Br. at A349 (Tr. 206:10-15). Reading the discussion in context, however, the
5
objections implicate problems involving the identity of each message’s author, each
objection invokes a distinct legal analysis. 12 The question of authenticating individual
messages appears not to have been fairly presented to the trial judge, who attempted to
address Moss’s blanket hearsay challenges to thousands of text messages during the trial.
Thus, we review Moss’s argument as it relates to the authentication of individual messages
for plain error.13
(9) D.R.E. 901(a) provides that the authentication requirement “is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent
claims.” 14 This Court’s decisions involving authentication of text messages and social
media posts suggest that text messages may be authenticated using any means available in
objection focused on whether the Camaro Phone Report constituted an accurate depiction of the
data on the Camaro Phone. See, e.g., id. at A353 (Tr. 210:14-20).
12
As discussed more fully herein, authentication requires the proponent of each text message to
provide “evidence sufficient to support a finding that the matter in question is what its proponent
claims.” D.R.E. 901(a). Moss’s hearsay objections focused on whether the individual author of
each text message was unavailable pursuant to D.R.E. 804(a)(5), which requires the proponent to
demonstrate its good-faith efforts to identify and locate each declarant in order to secure their
testimony. D.R.E. 804(a)(5); see 29 AM. JUR. 2D Evidence § 701.
13
Del. Supr. Ct. R. 8.
14
D.R.E. 901(a).
6
D.R.E. 901.15 As this Court explained in Parker v. State,16 in considering a claim that the
trial court abused its discretion in admitting a Facebook post:
Where a proponent seeks to introduce social media evidence, he or she may
use any form of verification available under Rule 901—including witness
testimony, corroborative circumstances, distinctive characteristics, or
descriptions and explanations of the technical process or system that
generated the evidence in question—to authenticate a social media post.
Thus, the trial judge as the gatekeeper of evidence may admit the social
media post when there is evidence “sufficient to support a finding” by a
reasonable juror that the proffered evidence is what its proponent claims it to
be. This is a preliminary question for the trial judge to decide under Rule
104. If the Judge answers that question in the affirmative, the jury will then
decide whether to accept or reject the evidence.17
This guidance applies as well to authentication of text messages where there exist similar
claims that such evidence could be faked or forged, or where there are questions as to the
authorship of the messages if the transmitting electronic device could have been used by
more than one person.
(10) In this case, the State provided evidence from which the jury could infer that
Moss authored the outgoing messages on the Camaro Phone Report. The contacts on the
15
See Parker v. State, 85 A.3d 682, 683, 687-88 (Del. 2014) (favoring the Texas approach to
authentication of social media evidence over the stricter Maryland approach, reasoning that,
“[a]lthough we are mindful of the concern that social media evidence could be falsified, the
existing Rules of Evidence provide an appropriate framework for determining admissibility”);
Swanson v. Davis, 69 A.3d 372, 2013 WL 3155827, at *4-5 (Del. June 20, 2013) (TABLE) (stating
that a proponent of text messages could have authenticated them by testimony from “a custodian
of the cell phone company” or “testimony by a witness with knowledge, by circumstantial evidence
of distinctive characteristics, or through expert testimony or comparison with authenticated
examples”); see also State v. Zachary, 2013 WL 3833058, at *2 (Del. Super. July 16, 2013)
(ORDER) (“[T]he State, as the proponent of the text-message evidence, must explain the purpose
for which the text messages are being offered and provide sufficient direct or circumstantial
evidence corroborating their authorship to satisfy the requirements of D.R.E. 901.”).
16
85 A.3d 682 (Del. 2014).
17
Id. at 687-88 (citations omitted).
7
Moss Phone Report were nearly identical to those on the Camaro Phone Report. Text
messages sent to the Camaro Phone addressed the intended recipient as Malik or Bleek.18
Moss’s fingerprints were found on the Camaro in which the Camaro Phone was found. His
fingerprints were also found on some of the seized drug evidence, which circumstantially
connected him to the drug-related texts. The State also presented testimony explaining the
technical system, Cellebrite, that generated the Camaro Phone Report. This evidence was
sufficient for the trial judge to permit the jury to make the ultimate finding on whether to
accept or reject the text message evidence.19
(11) Further, we believe that the Superior Court did not abuse its discretion by not
requiring expert testimony in admitting the Camaro Phone Report and the Moss Phone
Report. D.R.E. 701 limits the opinions lay witnesses may provide to those “which are (a)
rationally based on the perception of the witness and (b) helpful to a clear understanding
of the witness’ testimony or the determination of a fact in issue and (c) not based on
scientific, technical or other specialized knowledge within the scope of Rule 702.” 20
D.R.E. 702 governs testimony by witnesses qualified as experts “by knowledge, skill,
experience, training or education” whose scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in
issue.21
18
See, e.g., App. to Opening Br. at A685 (“Bleekkkkkk [sic] even one and a half like pleaseeeee
[sic] I’m so sick.”); id. at A701 (“Malik I understand. You can always call me just to reach out.”).
19
See Parker, 85 A.3d at 687-88.
20
D.R.E. 701.
21
D.R.E. 702.
8
(12) Police officers must be qualified as experts if they offer an opinion based on
their technical or specialized knowledge.22 “It is well established that the testimony of a
witness who possesses expertise in a certain area is not ipso facto expert testimony.”23
Further, “[a] distinction is drawn between testimony based upon one’s personal knowledge
of the facts of the case, and testimony by a witness, who has been properly qualified as an
expert, in the form of ‘an opinion or otherwise’ concerning a subject area relevant to the
case.”24 Thus, “[a] witness may testify as to his or her own experience, knowledge and
observation about the facts of the case without giving ‘expert testimony’ as defined in the
rules of evidence.”25 In this case, the detectives testified solely about the investigative
procedure involved in using Cellebrite to generate a report. 26 Their testimony did not
include any analysis or opinions regarding the data generated. Thus, the Superior Court
did not abuse its discretion in permitting the detectives to testify as lay witnesses.
(13) Finally, we find no reversible error with respect to the Superior Court’s
decision to admit limited categories of text messages over Moss’s hearsay objections.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial
22
See Norman v. State, 968 A.2d 27, 31 (Del. 2009) (concluding that police officers must be
qualified as experts before identifying a controlled substance, but finding the error in failing to do
so was harmless beyond a reasonable doubt given the circumstantial evidence that the substance
seized was marijuana).
23
Duphily v. Del. Elec. Co-op., Inc., 662 A.2d 821, 835 (Del. 1995) (en banc) (emphasis in
original) (citing McLain v. Gen. Motors Corp., 569 A.2d 579, 584 (Del. 1990)).
24
Id. (citing McLain, 569 A.2d at 584).
25
Id. (emphasis in original) (citing McLain, 569 A.2d at 584).
26
Detective Ruiz testified that he has worked in the Tech Crimes Unit analyzing digital devices
since 2010. App. to Opening Br. at A312.
9
or hearing, offered in evidence to prove the truth of the matter asserted.” 27 Hearsay
statements are generally inadmissible. 28 However, the Delaware Rules of Evidence
provide exceptions to the rule against hearsay, some of which apply only if the declarant
is unavailable. 29 D.R.E. 804(a) provides a nonexclusive list of situations in which a
declarant is considered unavailable, including when the declarant is “absent from the
hearing and the proponent of the declarant’s statement has been unable to procure the
declarant’s attendance by process or other reasonable means.”30 Moss’s hearsay arguments
on appeal primarily concern the Superior Court’s findings that certain declarants were
unavailable.
(14) First, Moss argues that the Superior Court erred in finding that Rossi was
unavailable because, according to Moss, there was no evidence that the State attempted to
secure Rossi’s attendance at trial. However, the docket reflects that an attempt was made
to subpoena Rossi.31 Also, during trial, the State argued that it was unable to locate Rossi,32
and Moss’s counsel asserted that he knew where Rossi was but could not reach him.33
27
D.R.E. 801(c). “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by him as an assertion.” D.R.E. 801(a).
28
D.R.E. 802.
29
See D.R.E. 804.
30
D.R.E. 804(a)(5).
31
See App. to Answering Br. at B3 (Docket at D.I. 15).
32
App. to Opening Br. at A28, A31, A394; see id. at A67 (testimony of Officer Fisher that he
spoke with Rossi on June 12, 2015); id. at A73 (Tr. 68:17-18) (“[B]y the time I was able to get
back around to [Rossi], he dropped his number”).
33
Id. at A32; id. at A395 (Tr. 15:21-22) (“I know where Mr. Rossi is. I just can’t access him.”).
10
Based upon the record before us, we conclude that the Superior Court did not abuse its
discretion in deeming Rossi to be unavailable.
(15) Next, Moss argues that the Superior Court’s blanket statement that all
unidentified declarants were unavailable was error. He further contends that the Superior
Court erred by not independently analyzing the unavailability of the declarant of each
incoming text message that referenced the stamps.34 The Superior Court at one point did
state that, “[a]s a factual matter, if you do not know the identity of the declarant and cannot
identify the person by reasonable means, that person is unavailable as a legal matter.”35
But the Superior Court stated later that “if the identity of those declarants is readily
available, and if that person could be procured as a witness, then they’re not unavailable.”36
Thereafter, the parties agreed, at the court’s direction, to examine the text messages on the
Camaro Phone Report to determine whether redactions would be necessary.37 The court
again stated that there needed to be “testimony from the police officer . . . as to what efforts
were made to find these declarants.” 38 However, the State never offered testimony
concerning its efforts to identify and locate the unidentified declarants.
34
Moss had argued that each text message had a phone number associated with it, and that there
was no evidence that the State attempted to use those numbers to locate the declarants and secure
their attendance at trial. Id. at A372-73; see also id. at A391-92.
35
Id. at A370 (Tr. 227:14-18).
36
Id. at A373 (Tr. 230:9-14).
37
Id. at A374. At defense counsel’s suggestion, the State agreed to disclose to Moss which
statements within the approximately 19,000 text messages on the Camaro Phone Report it intended
to use at trial. Id. at A375.
38
Id. at A394 (Tr. 14:6-9).
11
(16) A proponent seeking admission of a hearsay statement under D.R.E. 804 has
the burden to establish the declarant’s unavailability. 39 Generally, the proponent must
show a good-faith, genuine, and bona fide effort to procure the declarant’s attendance.40
As to the unidentified declarants, that appears not to have been done. Part of the problem
appears to be of Moss’s own making in not raising specific authentication objections before
or during trial and raising the hearsay objections (centered on the declarants’
unavailability) in global fashion in the midst of trial. During trial, the court overruled
Moss’s “blanket hearsay objection”41 and attempted to address the unavailability issue by
focusing the parties on messages from Rossi and Birch, who had been found to be
unavailable. For example, the trial court stated that, “[t]o the extent possible, the State
needs to limit these statements to the persons that I’ve already declared are unavailable and
the issues that I’ve talked about, the mention of the car and the mention of the drugs.”42
The court ruled that the Camaro Phone Report would not be admissible in its entirety.43
The parties appear to have endeavored to redact the Camaro Phone Report and to narrow
the universe of messages to be presented to the jury.
39
See Hammond v. State, 569 A.2d 81, 91 (Del. 1989) (“The proponent of any evidence always
has the burden of establishing its admissibility.”).
40
29 AM. JUR. 2D Evidence § 701; see, e.g., Cummiskey v. Chandris, S.A., 719 F. Supp. 1183, 1187
(S.D.N.Y. 1989) (holding that the proponent of a statement by an unidentified cruise ship
employee “has not met her foundational burden of establishing the unavailability of the declarant”
because the summary judgment papers “fail[ed] to reveal any effort by plaintiff to ascertain the
identity of this person”), aff’d, 895 F.2d 107 (2d Cir. 1990).
41
App. to Opening Br. at A398 (Tr. 18:15).
42
Id. at A399 (Tr. 19:10-14).
43
Id. at A401. Some of the challenged texts appear not to be statements or assertions at all, and
others appear not to be offered for the truth of the matter asserted.
12
(17) “[R]eversal is only required if ‘there was significant prejudice to deny the
accused of his or her right to a fair trial.’” 44 Although not a perfect process here, we
conclude that any error in addressing the issue of unavailable declarants does not, on this
record, rise to the level of reversible error. Given the substantial evidence presented by the
State at trial, including Moss’s fingerprints linking him to the drug evidence and the
Camaro, the incoming text messages from Birch and Rossi, and the other evidence
presented by the State, we cannot conclude that the trial court committed reversible error.
(18) Next, Moss argues that the Superior Court improperly admitted references to
“Malik” or “Bleek.” He contends that the Superior Court did not engage in the analysis
required by D.R.E. 807. However, D.R.E. 807 was not the basis of the Superior Court’s
ruling. The court’s ruling was that “the mention of a name . . . is not hearsay.”45 Moss
does not seriously contest this ruling on appeal. Moss has not established that the Superior
Court abused its discretion by admitting references to “Malik” or “Bleek.”
(19) Moss’s final hearsay argument is that the Confrontation Clause of the United
States Constitution “bars” the admission of the text messages. Although Moss raised this
argument at trial, he failed to address it in his Opening Brief on appeal. Accordingly, the
argument has been waived.46
44
Stevenson v. State, 149 A.3d 505, 509 (Del. 2016) (quoting Milligan v. State, 116 A.3d 1232,
1235 (Del. 2015)) (citing D.R.E. 103(a) (“Error may not be predicated upon a ruling which admits
or excludes evidence unless a substantial right of the party is affected[.]”)).
45
App. to Opening Br. at A398-99 (Tr. 18:23-19:5) (“I’m ruling that that is not hearsay.”).
46
See Del. Supr. Ct. R. 14(b)(vi)(A)(3).
13
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is
AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
14