State v. Brown
State v. Brown
Opinion of the Court
**482The central issue before the Court concerns authentication of Global Positioning System (GPS) monitoring evidence. Specifically, is the requirement for authentication satisfied by testimony that GPS data is accurate because "[w]e use it in court all the time"? The answer is an unqualified "no."
*737A Zaxby's restaurant in Goose Creek, South Carolina, was robbed by two males wearing ski masks and gloves while carrying a gun and knife, around midnight on Christmas Eve. During the robbery, a Zaxby's employee was shot by one of the robbers. As a result of law enforcement's investigation-including a traced scent trail, DNA evidence found on a ski mask and gun, an executed search warrant, and a tip that Petitioner confessed to committing the crime with Christopher Wilson-Petitioner and Wilson were arrested and charged with robbery, as well as other crimes stemming from the incident. In addition, during the course of their investigation, law enforcement discovered that Wilson was wearing a GPS ankle monitor at the time of the robbery. Wilson's GPS records reflected that he was at Zaxby's during the robbery. Wilson pled guilty prior to Petitioner's trial.
At Petitioner's trial, the State connected Wilson to Petitioner, through Wilson's GPS records and otherwise. As noted, this appeal is centered on Petitioner's challenge that the State failed to authenticate Wilson's GPS records. We hold that the State failed to properly authenticate the GPS records, and it was error to admit this evidence. Nevertheless, due to the overwhelming evidence of guilt, we affirm the court of appeals in result because this error was harmless beyond a reasonable doubt.
I.
A Zaxby's restaurant in Goose Creek was robbed around midnight on December 24, 2011, and an assistant manager was shot during the robbery. There were several employees present at Zaxby's during the time of the robbery who testified at **483trial. They testified that, while Zaxby's was in the process of being closed for the evening, two men wearing dark clothing, ski masks, and gloves robbed them with a gun and knife. One of the robbers shot the assistant manager as she lay on the ground. In addition, one victim testified that the assailants used a knife to rip his pants and take his wallet from his back pocket.
Within minutes of the robbery, a car narrowly avoided hitting two men dressed in dark clothing who were exiting the woods near Zaxby's, crossing the road, and running along a wooded area. The citizen relayed this information to the law enforcement officers who were gathered at the nearby Zaxby's. Based on this information, law enforcement utilized a dog from a K-9 unit to track the scent at the entrance of a subdivision across the street and, along the trail, found money dropped at various places before the scent was lost. Law enforcement also discovered a ski mask, which was submitted for DNA testing. The scent trail ended at Wilson's residence. By the time law enforcement arrived in the vicinity of Wilson's residence, the suspects had left the area. The assailants were not apprehended that night.
Marteeka Hamilton-one of Petitioner's on-again, off-again girlfriends-testified that she received a call from Petitioner on Wilson's cell phone around midnight on the night of the robbery, asking her to pick them up near Wilson's residence because they needed a ride.
Cynthia Garrett was Petitioner's other on-again, off-again girlfriend. Garrett testified that Petitioner confessed to her that he had robbed Zaxby's with Wilson and she relayed this **484information to the police. Garrett testified *738that, prior to the robbery, she offered to provide transportation so Petitioner could accept a job offer, but Petitioner told her that he would "rather rob than work," informed her that he was planning to do a "lick"
On the night of the robbery, Petitioner called Garrett from Wilson's cell phone around midnight asking her to give them a ride.
Regarding Garrett's tip to law enforcement, the assigned investigator sent officers to the Motel Six where Garrett said Petitioner had stayed after the robbery and they confirmed that Petitioner had checked in there. In addition, the dollar amount that Garrett provided as being stolen during the robbery closely matched the one that law enforcement obtained from management at Zaxby's.
At that time, the assigned investigator submitted the DNA on the ski mask found at the scene for comparison with Wilson's DNA. The forensic test results revealed it was a match. Based upon their advancing investigation-including Garrett's statement and Wilson's DNA on the ski mask-law enforcement obtained a search warrant for Wilson's residence.
While executing the search warrant, law enforcement discovered Petitioner alone in Wilson's house. During their search, officers located the gun used during the robbery.
Thereafter, law enforcement requested a DNA analysis on various items, including the gun recovered at the residence. The State's DNA expert testified that the test results revealed Petitioner's DNA could not be excluded from the handle of the gun although approximately 97.8% of the population could be excluded. As the expert explained,
We can conclude that all of the peaks in [Petitioner's] DNA profile could be found in the mixture profile from the handle of the gun, so we have to report that he is a possible contributor. ... If all of his data peaks are there, he is one of those people-he's either one of those unlucky people that, you know, came to the attention of the police and just by coincidence all of his data peaks are there, or he handled the gun. Those are the two possibilities.
The expert concluded, "The most likely explanation for this mixture profile is that Christopher Wilson and [Petitioner] ... both handled the gun. We could not exclude Christopher Wilson or [Petitioner]."
While Petitioner was incarcerated and awaiting trial, Lanier Daniels was his cellmate. During this time, Petitioner confessed to Daniels that he planned and committed the robbery with Wilson. In particular, Daniels testified that Petitioner said he was "the one who set up the whole thing" and Petitioner explained to him "what had happened at Zaxby's that night" and "how they got away." Daniels testified that Petitioner said he was upset with Wilson because Wilson shot his uncle's girlfriend-the assistant manager-during the robbery. Daniels testified *739that Petitioner disclosed "his baby mother"-Hamilton-picked Wilson and Petitioner up after the robbery. Petitioner told Daniels that he was arrested while "he was at a friend's house" and "getting rid of the gun."
In addition, the State entered Wilson's cell phone records at trial, without objection, which reflected that Wilson's phone was used to call Hamilton and Garrett during the time periods that they testified Petitioner had called them and stated that **486he needed a ride for himself and Wilson on the night of the robbery.
Law enforcement also discovered that Wilson was wearing a GPS ankle monitor and requested the GPS records from the South Carolina Department of Probation, Pardon, and Parole Services (the "Department"). The GPS records, which are the focus of this appeal, purportedly placed Wilson at Zaxby's just prior to and during the time of the robbery. During trial, the State submitted Wilson's GPS records, to which Petitioner objected on the basis that the State was unable to authenticate the records or comply with the business records exception. See Rules 803(6) and 901, SCRE. The trial court overruled the objections and admitted the GPS records.
II.
The State presented Agent Steward Powell's testimony to authenticate the GPS records. Agent Powell testified that he is a probation agent with the Department and explained that his job duties include supervising offenders after they are sentenced. Part of the supervision involves the use of GPS monitoring systems. In particular, concerning the matter of authentication, the following colloquy occurred on direct examination:
Q. And what does [your job duty involving GPS monitoring] entail?
A. There is a GPS monitor affixed to the ankle of the offender, and their movements are tracked wherever they go.
Q. How do they work?
....
A. The State has a GOC, general operations center, in Columbia. These offenders are tracked, 24 hours a day, seven days a week so they're always monitored. Us field agents-and what I mean is someone like me at a local office, we can log on to our computers and see in realtime where these offenders are.
Q. Is that information recorded?
**487A. It's recorded and it's archived.
Q. How is it recorded?
A. It's recorded by a third party vendor [Omni Link] that supplied the software and the hardware, the actual ankle monitor, for the system.
Q.Is that information accurate?
A.It is very accurate. We use it in court all the time.
(emphasis added). The GPS records were admitted into evidence.
The jury found Petitioner guilty of criminal conspiracy, burglary second degree, three counts of armed robbery, and five counts of kidnapping; however, the jury found Petitioner not guilty of possession of a weapon during the commission of a violent crime and attempted murder (or the lesser charge of assault and battery of a high and aggravated nature). Petitioner was sentenced to prison and he appealed to the court of appeals.
The court of appeals affirmed Petitioner's convictions and sentences in an unpublished opinion pursuant to Rule 220, SCACR, finding no abuse of discretion in the admission of the GPS evidence and, in any event, any error was harmless beyond a reasonable doubt. State v. Brown , Op. No. 2016-UP-447,
III.
"The admission or exclusion of evidence is a matter addressed to the sound *740discretion of the trial court and its ruling will not be disturbed in the absence of a manifest abuse of discretion accompanied by probable prejudice." State v. Douglas ,
The main issue before this Court is whether Agent Powell's testimony was sufficient to authenticate the GPS records. We hold that the GPS records were not properly authenticated.
It is black letter law that evidence must be authenticated or identified in order to be admissible. See State v. Rich ,
**489(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
Rule 901(b)(9), SCRE.
The State acknowledges that it is required to authenticate the GPS records, but argues that this burden is not high. We agree, and moreover, we acknowledge that the reliability or operation of GPS technology in general is not genuinely disputed. See, e.g. , Commonwealth v. Thissell ,
Here, the testimony of Agent Powell failed to authenticate because it shed no light on the accuracy of the GPS records. The State's argument that authentication was fulfilled through other means fails to appreciate the nature of GPS records and that these records are generated and result from, at least in *741part, the process or system used by a machine.
As recognized by the Fourth Circuit Court of Appeals, "Any concerns about the reliability of such machine-generated information is addressed through the process of authentication ...." United States v. Washington ,
Other persuasive authority supports this approach. See, e.g. , Subdivision (b)(9)-Process or System, 31 Fed. Prac. & Proc. Evid. § 7114 (1st ed. Apr. 2018) (stating " Rule 901(b)(9) governs the authentication of data produced by a machine purporting to measure or detect something, such as a radar gun, a breathalyzer, a global positioning system device , and the like" (emphasis added) ); see also Rule 902(13), FRE (allowing "[a] record generated by an electronic process or system that produces an accurate result" to be certified). Thus, we hold that the State needed to present "[e]vidence describing [the] process or system used to produce" the GPS records and "showing that the process or system produces an accurate result" in accordance with Rule 901(b)(9), SCRE, to authenticate Wilson's GPS records in this case.
We emphasize that "[n]o elaborate showing of the accuracy of the recorded data is required"; however, the State must make some showing to authenticate the records. People v. Rodriguez ,
One jurisdiction, North Carolina, appears to use the same or similar vendor as the one used in this case-Omni Link-and has found an officer's testimony sufficient to authenticate GPS records. In State v. Jackson ,
After reviewing various authorities, we require that a witness should have experience with the electronic monitoring system used and provide testimony describing the monitoring system, the process of generating or obtaining the records, and how this process has produced accurate results for the particular device or data at issue. As noted, the witness need not be an expert.
**493V.
Despite this error, we hold that the error was harmless beyond a reasonable *743doubt due to the overwhelming evidence of guilt presented against Petitioner.
"Generally, appellate courts will not set aside convictions due to insubstantial errors not affecting the result." State v. Pagan ,
Under the circumstances presented in this case and based on the evidence described in the first section of this opinion, the error did not contribute to the verdict and was harmless beyond a reasonable doubt.
VI.
In sum, we hold the State failed to authenticate the GPS records because Agent Powell's testimony-"[w]e use it in court all the time"-failed to authenticate the GPS evidence concerning its accuracy. However, the error was harmless beyond a reasonable doubt. The court of appeals is affirmed in result.
AFFIRMED IN RESULT.
BEATTY, C.J., HEARN, FEW and JAMES, JJ., concur.
During trial, cell phone records from Wilson's phone were admitted to corroborate this testimony.
Garrett explained that the word "lick" is a term used to describe a robbery.
Again, during trial, cell phone records from Wilson's phone were admitted to corroborate this testimony.
Ballistic results were admitted at trial, which revealed the gun matched a casing found at Zaxby's.
Because we agree with Petitioner that the trial court erred in admitting the GPS records, it is not necessary to address Petitioner's other challenges to this evidence. Futch v. McAllister Towing of Georgetown, Inc. ,
"With the exception of subsection (b)(10) ... this rule is identical to the federal rule." Note, Rule 901, SCRE. This remains true even after the Federal Rules of Evidence were restyled in 2011 as there was "no intent to change any result in any ruling on evidence admissibility." Fed. R. Evid. 901 advisory committee's note to 2011 amendment.
Rule 901 provides examples of authentication "[b]y way of illustration only, and not by way of limitation." Rule 901, SCRE.
Moreover, the State failed to meet the authentication requirements for the other subitems it proposes-through testimony of a witness with knowledge, a showing of distinctive characteristics, or as a public record-because Agent Powell did not pull the GPS records, the GPS records did not reflect Wilson's name on every page, the pages were not in sequential or even chronological order, the records contained inconsistent serial numbers as well as various unexplained time and date gaps, and the records did not reflect compliance with the statute requiring that the Department use a "web-based computer system that actively monitors and records a person's location at least once every minute twenty-four hours a day ."
See United States v. Espinal-Almeida ,
See, e.g. , Johnson v. State ,
Reference
- Full Case Name
- The STATE v. Donte Samar BROWN
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- 11 cases
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- Published