2020-0148, State of New Hampshire v. Javon Brown

Hampshire Rule of Evidence 901. We affirm. call was admissible when the call was not authenticated as required by New conviction, arguing that the trial court erred by ruling that evidence of a phone months in the house of corrections and fined. The defendant appeals his violence, see RSA 631:2 - b (Supp. 2021), for which he was sentenced t o twelve jury trial in the Superior Court (Kissinger, J.), of misdemeanor domestic BASSETT, J. The defendant, Javon Brown, was convicted, following a

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate defender, of Concord, on the

for the State. general (Zachary L. Higham, assistant attorney general, on the brief and orally), John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

No. 2020 - 0148 Merrimack

page is: https://www.courts.nh.gov/our - courts/supreme - court a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Ev. 901. The State objected. On January 31, p. 2 2020, the trial court ruled from that the individual with whom the officer spoke was the defendant. See N.H. R. conversation was not authenticated because there was insufficient evidence the court exclude testimony about the August 4 phone call. He argued that the I n January 2020, the defendant filed a pret rial motion requesting that

631:4 (Supp. p. 2 2021). and informants, see RSA 641:5 (2016); and criminal threatening, s ee RSA second degree assault, see RSA 631:2 (Supp. 2021); tampering with witnesses defendant was charged with misdemeanor domestic violence, s ee RSA 631:2 - b; officer called does not appear in the record bef ore us. Thereafter, the allegations to MPD and that the speaker possessed the letter. The number the The speaker also told the officer that the victim wrote a letter recanting her August 3, and told the office r that the victim’s injuries were from rough sex. the speaker claimed to have been at the victim’s apartment the previous night, himself as Javon Brown. Although the speaker denied assaulting the victim, of ficer called one of the numbers, and the person who answered identified not recognize and that she believed the calls were from the defendant. The officer that she had been receiving calls originating from numbers that she did photographed bruising on her forehead and arms. The victim informed the An officer at the station interviewed the victim. The officer observed and

several calls from phone numbers she did not recognize. night’s assault. While she was driving to the police station, she received straight to the Concord Polic e Department to file a report about the prior would wait in the vehicle for him to return. Instead of waiting, she fled, driving Manchester. Before the defendant got out of the car, the victim agreed that she The fol lowing day, August 4, the victim gave the defendant a ride to

defendant. allegations she had made to the MPD. She wrote the letter and gave it to the breathing; and threatened to kill her if she did not write a letter recanting the her mouth and nose, and applied pressure to her neck to prevent her from him. The defendant then punched and slapped the victim in the head; covere d on August 3, p. 2 2019, the defendant woke her and accused her of cheating on the victim was pregnant with the defendant’s child. Between 2 a.m. and 4 a.m. The events underlying this case occurred in August 2019. At that time,

temporarily separated, but they reconciled in July p. 2 2019. MPD commence d a domestic violence assault investigation. The couple the defendant held a knife to her th roat and threatened to kill her, and the victim filed a report with the Man chester Police Department (MPD) alleging that victim and the defendant entered into a relationship in 2018. In May 2019, the The following facts are supported by the record or are undisputed. The p. 3 3

the rest is up to the jury.” Id. (quotation omitted). been made on the issue of authentication. Id. “Once the evidence is admitted, evidence, if otherwise relevant, should be admitted once a prima facie case has whom a statement originated is, in fact, the defendant. Id. The contested only demonstrate a rational basis from which to conclude that the person from evidence is what it purports to be.” Id. (quotation omitted). The State need possibilities inconsistent with authenticity, or prove beyond any doubt that the evidence.” Id. (quotation omitted). “The proponent need not rule out all connect an evidentiary exhibi t to a defendant may be made by circumstantial high.” Palermo, 168 N.H. at p. 3 3 92 (quotation omitted). “The proof necessary to N.H. R. Ev. 901(a). “The bar for authentication of evidence is not particularly sufficient to sup port a finding that the item is what the proponent claims it is.” or identifying an item of evidence, the proponent must produce evidence Rule 901(a) provides that “[t]o satisfy the requirement of authenticating

(2010). court at the pre trial motion hearing. State v. Nightingale, 160 N.H. 569, 57 p. 3 3 trial court’s pre trial rulings, we limit our review to the proffers pr esented to the or unreasonabl e to the prejudice of his case. Id. Because we are reviewing the defendant must demonstrate that the t rial court’ s ruling was clearly untenable decision made. Id. To show an unsustainable exercise of d iscretion, the the record establishes an objective basis sufficient to sustain t he discretionary whether a ruling is a proper exercise of judicial discretion, we consider whether trial court. State v. Palermo, 168 N.H. 387, 391 (2015). In determining The decision to admit or exclude evidence is within the discretion of the

a reasonable doubt. erred in admitting the statements from the call, the error was harmless beyond establish that the speaker was the defend ant, and that, even if the trial court The State responds that there was sufficient circumstantial evidence to conversation to the defendant, and such evidence is not present in this case. speaker,” a large quantum of other evidence is required to link the phone identification or a connection between the number used and the purported T he defendant contends that in cases like this, whe n there is no “voice insufficient evidence to support a f inding that the speaker was the defendant. admitted the statements from the August 4 phone call because there was On appeal, the defendant argues that the trial court erred when it

appeal followed. domestic violence, see RSA 6 p. 3 31:2 - b, and not guilty of the other charges. This the August 4 phone call. The jury found the defendant guilty of misdemeanor During the two - day jury trial in February 2020, t he officer testified about

speaker was the defendant. “the very specificity of the conversation” was sufficient to establish that the the bench that the statements were sufficiently authenticated, reasoning that p. 4 4

assault, she was forced by the defendant to write such a letter. See id. recantation letter was consistent with th e victim’s testimony that, during her occurred. In addition, t he speaker’s statement that he had the victim’s at the victim’s apartment the previous evening — the night that the assault to link the phone call to the defendant. The speaker told the officer that he was Similarly, the phone conversation in this case contains details sufficient

at 392 - 93. identifying details to link the authorship of the messages to the defendant.” Id. that the messages were admissible because they “containe d sufficient have been known to “only a few individuals.” Id. Citing Rule 901(b)( p. 4 4), we held information may not have been known exclusively to the defendant, it would testimony as to how the d efendant assaulted her. Id. Although the Id. Additionally, the messages described conduct consistent with the victim’s and living situation — was “consistent with the defendant’s circumstances.” The information contained in the messages — the defendant’s parole status contents of the messages persuasive evidence of their authenticity. Id. at 393. 94. In holding that the messages were sufficiently authenticated, we found the account was left logged - in on a device to which others had access. Id. at 390 of messages sent from the defendant’s Facebook account. The defendant’s We find Palermo instructive. In Palermo, we considered the authenticity

impression, authentication of Facebook messages). this case.” Palermo, 168 N.H. at 391 (addressing, as a matter of first established rules governing authentication are sufficient to address the issue in phone call is an issue of first impression in New Hampshire. Nonetheless, “our The qua ntum of proof necessary to authenticate statements made on a

authenticated in accordance with Rule 901(b)( p. 4 4). admissibility,” we hold that the phone conversation was sufficiently specificity of the conversation . . . provide[s] an adequate foundation for its N.H. R. Ev. 901(b)(4). Because we agree with the trial court’s findings that “the

all the circumstances. characteristics of the item, taken together in conjunction with contents, substance, internal patterns, or other distinctive ( p. 4 4) Distinctive Characteristics and the Like. The appeara nce,

requirement.” N.H. R. Ev. 901(b). Relevant to this case is subsection ( p. 4 4): list of “examples only — not a complete list — of evidence that satisfies the quantum of evidence sufficient for auth entication. Id. Rule 901(b) provides a Rule 901 does not establish specific requirements as to the nature or p. 5 5

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

discretion when it admitted the statements into evidence. Rule 901(a), we conclude that the trial court sustainabl y exercised its was sufficient to meet the relatively low bar for authentica tion established by Here, because t he evidence linking the defendant to the phone conversation possibilities inconsistent with auth enticity.” Id. at 392 (quotation omitted). evidence.” Palermo, 168 N.H. at 394. The State “need not rule out all preclude authentication based upon the State’s proffered authentication ease with which” someone could have posed as the defendant “d[oes] not response to the officer’s prompting. While such scenarios are possible, “the on the other end of the call was a random person merely “play [ing] along” in have told someone to pose as th e defendant on the phone, or that the person case. He contends that the risk of fraud was high because the victim could corroboration requirement commensurate with the high risk of fraud” in this T he defendant argues that the trial court “failed to recognize or apply a

caller’s identity). (considering the timing of phone calls relevant circumstantial evidence of the from him. See United States v. John, p. 5 518 F.2d 705, 709 - 10 (7th Cir. 1975) was the defendant, a belief supported by the timing of the call during her flight obtained the phone number from the victim’s phone, and the victim believed it combined with the caller’s self - identification”). Additionally, the officer (ruling that a call was authenticated based on “the content of the conversa tion of authenticity. See United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993) to authenticate the evidence, it is nonetheless relevant circumstantial evidence defendant. Although self - identification, standing alone, ma y not be sufficient N.H. at 393. The person with whom the officer spoke self - identified as the conversation make it likely the defendant was the speaker. See Palermo, 168 Moreover, as in Palermo, circumstances beyond the contents of the

168 N.H. at 393. facie case that the speaker was the defendant. N.H. R. Ev. 901(b)(4); Palermo, statements contained distinctive identifying details sufficient to make a prima between the assault and h er flight from the defendant. T he speaker’s anyone whom the victim may have told in the relatively short period of time to be known only to a small number of people — the defendant, the victim, and c onversation. Here, however, the information the speaker provided was likely knowledge of the matters at issue” is not sufficient to authenticate a phone The defendant argues that a speaker’s demonstration of “some