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Moss v. State

Supreme Court of Delaware

June 28, 2017

MALIK J. MOSS, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: June 14, 2017

         Court Below: Superior Court of the State of Delaware Cr. I.D. No. 1505002467 (N)

          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 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) 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 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 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 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 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 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]

         (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 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] 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 ...

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