Caller ID: Supreme Court Of Arkansas Finds Distinctive Characteristics Sufficient To Authenticate Text Messages

Similar to its federal counterpart, Arkansas Rule of Evidence 901(b)(4) provides that there can be authentication of evidence through

Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.  

And, as the recent opinion of the Supreme Court of Arkansas in Gulley v. State, 2012 WL 4712207 (Ark. 2012), makes clear, Rule 901(b)(4) is often used to authenticate e-mails, text messages, and the like.

In Gulley, Michael Gulley was convicted of the capital murder of Amy Smith and the attempted capital murder of Naaman Moss. The facts adduced at trial indicated that

Shortly after midnight on June 7, 2009, Amy Smith was shot and killed while in her apartment in Prescott. Naaman Moss, who was also in Smith's apartment that night, was shot and wounded. Witnesses who were on the front porch of a neighboring apartment stated at trial that Gulley visited Smith's apartment complex three times that evening. The first time he visited he was in a car and stopped in the parking lot for a few seconds. The second time that he visited, he rode a bicycle, approached the witnesses, and asked who was in Smith's apartment. The final time, he was in a different vehicle. On this third occasion, he got out of the vehicle, approached Smith's apartment, threw something through a window, and fired shots into the apartment....

At trial, the State presented evidence that Gulley and Smith had dated, that Smith no longer wanted to be in a relationship with him, and that Smith was fearful of Gulley and afraid for her life. The State also presented evidence of three text messages that it alleged were sent by Gulley on the day before Smith's murder. 

Specifically, Verizon Wireless employee Grant Laisure

testified as to the content of each message, all of which were sent on the day before the murder from a prepaid cellular telephone number assigned to Gulley. Verizon Wireless sold the cellular telephone to Gulley. The first text message was allegedly sent by Gulley to his cousin-by-marriage, Edward Gulley, at 9:24 a.m., and read, "She telling you one thing and everybody else something else. That bitch call you when she get scared, fucked out tramp. If I get anything to do with it, Ki going to be left without any parents and that is boss." The second text message was sent to Mechawana Pearson, Gulley's girlfriend at the time, at 4:07 p.m. and read, "Dats okay too, I got a car out the deal, dat bitch gonna pay, it's just a matter of time." The third text message was sent at 11:30 p.m. to a number assigned to Smith and said, "I'm getting dropped off over there." 

After he was convicted, Gulley appealed, claiming, inter alia, that the prosecution failed to properly authenticate the text messages as messages coming from Gulley. According to Gulley, the fact that the messages came from a phone assigned to him was insufficient by itself to establish authentication.

The Supreme Court of Arkansas did not address that issue directly, instead, finding that the text messages were properly authenticated under Rule 901(b)(4). For example,

The second text message at issue [wa]s one sent to Smith's telephone which read, "I'm getting dropped off over there." Testimony from Mr. Laisure established that this text message was sent from the telephone number assigned to Gulley. Mr. Laisure added that the text message was sent at 11:30 pm on June 6, 2009. Another witness, Sharlene Christopher, testified that in the early morning hours of June 7, 2009, the date of Smith's murder, she saw Gulley get out of the passenger side of a white Chevy Malibu, run in front of Smith's apartment, hit or bang on her window, and then she heard gunshots. We hold that the testimony establishing that the text message came from a cellular telephone number assigned to Gulley, together with the witness testimony that Gulley was in fact dropped off at Smith's apartment the night that she was killed, is sufficient to meet the authentication requirements of Rule 901.

-CM