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Univ. of South Carolina School of Law

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Saturday, February 11, 2012

It's My Space, That's Why They Call It MySpace, Take 7: Court Of Criminal Appeals Of Texas Upholds Authentication Ruling

Back in October 2010, I posted an entry about the Court of Special Appeals of Maryland finding in Griffin v. State, 2010 WL 2105801 (Md.App. 2010), that the prosecution properly authenticated a MySpace page as one belonging to the defendant's girlfriend pursuant to distinctive characteristics under Maryland Rule of Evidence 5-901(b)(4). Then, last May, I posted an entry about the opinion of the Court of Appeals of Maryland (the state's supreme court), in Griffin v. State, 2011 WL 1586683 (Md. 2011), in which the court reversed the Court of Special Appeals and found that distinctive characteristics were insufficient to authenticate the MySpace page. Recently, in Tienda v. State, 2012 WL 385381 (Tex.Crim.App. 2012), the Court of Criminal Appeals of Texas reviewed a ruling in which a court relied solely upon the opinion of the Court of Special Appeals of Maryand in Griffin to find that a MySpace page was properly authenticated. SO, how did the court rule?

In Tienda, Ronnie Tienda, Jr. was convicted of murder based upon the killing of David Valadez.

During preparation of the State's case against the appellant, the deceased's sister, Priscilla Palomo, provided the State with information regarding three MySpace profile pages that she believed the appellant was responsible for registering and maintaining. After subpoenaing MySpace.com for the general “Subscriber Report” associated with each profile account, the State printed out images of each profile page directly from the MySpace.com website, and then marked the profile pages and related content as State's exhibits for trial. The State used Palomo as the sponsoring witness for these MySpace accounts at guilt/innocence, and, over the appellant's running objection as to the authenticity of the profile pages, the State was permitted to admit into evidence the names and account information associated with the profiles, photos posted on the profiles, comments and instant messages linked to the accounts, and two music links posted to the profile pages....

The main profile pages of the MySpace accounts contained quotes boasting “You aint BLASTIN You aint Lastin” and “I live to stay fresh!! I kill to stay rich!!” Under the heading “RIP David Valadez” was a link to a song that was played by Valadez's cousin at Valadez's funeral. Another music link posted to one of the profiles was a song titled “I Still Kill.” The instant messages exchanged between the account holder and other unidentified MySpace users included specific references to other passengers present during the shooting, circumstances surrounding the shooting, and details about the State's investigation following the shooting. The author of the messages made specific threats to those who had been “snitchin” and “dont run shit but they mouth,” assigning blame to others for being the “only reason im on lock down and have this shit on my back.” The author also generally boasted to another user that “WUT GOES AROUND COMES AROUND” and “U KNO HOW WE DO, WE DON'T CHASE EM WE REPALCE EM.” The author accused: “EVERYONE WUZ BUSTIN AND THEY ONLY TOLD ON ME.” Several of the instant messages also complained about the author's electronic monitor, which was a condition of the appellant's house arrest while awaiting trial.

After he was convicted, Tienda appealed, claiming, inter alia, that the MySpace page was not properly authenticated, but the Court of Appeals of Texas disagreed, finding that the prosecution properly authenticated the page as one belonging to Tienda under Texas Rule of Evidence 901(b)(4). As the sole support for this conclusion, the Court of Appeals cited to the opinion of the Court of Special Appeals of Maryland in Griffin.

In addressing Tienda's appeal, the Court of Criminal Appeals of Texas recognized that Griffin had been reversed but still found that the trial court acted correctly. The court cited to a laundry list of distinctive characteristics contained in the MySpace account and found that

This combination of facts—(1) the numerous photographs of the appellant with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring; (2) the reference to David Valadez's death and the music from his funeral; (3) the references to the appellant's “Tango Blast” gang; and (4) the messages referring to (a) a shooting at “Rumors” with “Nu–Nu,” (b) Hector as a “snitch,” and (c) the user having been on a monitor for a year (coupled with the photograph of the appellant lounging in a chair displaying an ankle monitor) sent from the MySpace pages of “ron Mr. T” or “MR. SMILEY FACE” whose email address is “ronnietiendajr@”—is sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant. This is ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/02/901b4-tienda-v-state-sw3d-2012-wl-385381texcrimapp2012.html

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