BRIEF OF THE APPELLANT

E-Filed Document Feb 2 2018 15:26:36 2017-KA-01455-COA Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LADALE AIROSTEVE HOLLOWAY APPELLANT v. No. 2017-KA-01455-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Appeal from the Circuit Court of Harrison County, Miss. No. B2402-2016-421 Justin T. Cook, MB # 102622 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION P.O. Box 3510 Jackson MS 39207 jcook@ospd.ms.gov T: (601) 576-4290 F: (601) 576-4205 Attorney for the Appellant

CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies pursuant to Mississippi Rules of Appellate Procedure 28(a)(1) that the following persons have an interest in the outcome of the case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal. Ladale Holloway Appellant Robert C. Stewart Geoffrey Germany Trial Counsel for the Appellant Hon. Roger T. Clark Trial Judge Mary Elizabeth McFadyen Ian Baker Trial Counsel for the State Justin T. Cook George T. Holmes Appellate Counsel for the Appellant Jim Hood, Esq Attorney General of Mississippi Jason L. Davis, Esq. Appellate Counsel for the State This the 2nd day of February, 2018. s/ Justin T. Cook Justin T. Cook, MB # 102622 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Attorney for the Appellant i

TABLE OF CONTENTS Certificate of Interested Persons... i Table of Contents... ii Index of Authorities... ii Statement of Assignment... 1 Statement of Issues Presented for Review... 1 Statement of the Case... 1 Procedural History... 1 Facts... 2 Summary of the Argument... 3 Argument... 3 Issue One: The trial court erred in admitting unauthenticated text messages in violation of Mississippi Rule of Evidence 901.... 3 Issue Two: The trail court erred in allowing the State to admit into evidence inadmissible hearsay text messages.... 6 Conclusion... 8 Certificate of Service... 9 CASES INDEX OF AUTHORITIES Austin v. State, 784 So.2d 186 (Miss. 2001)... 3 Burton v. State, 875 So.2d 1120 (Miss. Ct. App. 2004)... 3 Campbell v. State, 382 S.W.3d 545 (Tex. App. 2012)).... 4 Lynch v. State, 877 So.2d 1254 (Miss. 2004)... 3 Smith v. State, 136 So.3d 424 (Miss. 2014)... 4 Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)... 5 Young v. Guild, 7 So.3d 251 (Miss. 2009)... 4 RULES Miss. R. Evid. 901... 4 Miss. R. Evid. 801... 6 ii

STATEMENT OF ASSIGNMENT This case is properly assigned to the Court of Appeals of the State of Mississippi. STATEMENT OF ISSUES PRESENTED FOR REVIEW Issue One: The trial court erred in admitting unauthenticated text messages in violation of Mississippi Rule of Evidence 901. Issue Two: The trail court erred in allowing the State to admit into evidence inadmissible hearsay text messages. STATEMENT OF THE CASE Procedural History On October 31, 2016, the grand jury of the Second Judicial District of Harrison County returned a multi-count indictment against, Ladale Airosteve Holloway, charging him with three counts of possession of a controlled substance with intent to distribute. Each were enhanced under Mississippi Code Annotated section 41-29-147. Holloway was also charged as a habitual offender under Mississippi Code Annotated section 99-19-81. (C.P. 6-8, R.E. 5-8). On December 5, 2016, Holloway waived arraignment, plead not guilty, and was appointed counsel of Charles Stewart. (C.P. 14). Holloway was brought to jury trial, and was found guilty on all counts on October 10, 2017, the Honorable Roger Clark, circuit judge, presiding. (C.P. 93-94, R.E. 12-13). Holloway was sentenced to terms of forty (40) years for count 1, twenty (20) years for count 3 and forty (40) years for count two, all to run concurrently, and all to be served as a habitual offender under section 99-19-81. (C.P. 100, R.E. 18). 1

On October 17, 2017, Holloway filed his Motion for New Trial, or Judgment Notwithstanding the Verdict (C.P. 96-98, R.E. 14-16). On October 19, 2017, the trial court denied Holloway s post-trial motions. (C.P. 106, R.E. 18). Facts At around 2:00 am on April 7, 2016, Sergeant David Abbott with the Biloxi Police Department saw a red Chevrolet Impala in the middle of an intersection on Highway 90, in Biloxi, Mississippi. (76-77). After the car failed to move through several changes of the light, Officer Abbott approached the vehicle, where he found the occupant, who would later be identified as Ladale Holloway, the appellant, to be asleep, with what appeared to be drugs in the Holloway s lap. (Tr. 77-78). Officer Abbot turned off the vehicle, removed the suspected contraband from the car, and woke up Holloway. Holloway then attempted to run away. Officer Abbot, trying to stop Holloway, grabbed Holloway s shirt, which was ripped off. (Tr. 79-80). After a K- 9 officer was brought to the scene, Holloway was located nearby. (Tr. 99-103). A cell phone was recovered from the vehicle, which included texts messages setting up would were interpreted to be drug transactions.. (Tr. 150-57). The State presented no evidence, however, that the phone was Holloway s, except for the fact that his picture was found on the phone. (Tr. 171). One bag contained a loose powder. (Tr. 78). Another contained what was believed to be crack cocaine. (Tr. 78). Testing would reveal the total weight of both to be 42.65 grams of cocaine. (Tr. 192). Another bag contained what was believed to methamphetamine. (Tr. 78). Testing would indicate the substance as 4.19 grams of methamphetamine. (Tr. 194). Seventeen pills were also recovered from the vehicle. (Tr. 2

78). Laboratory testing found the pills to be methamphetamine. (Tr. 194-96). SUMMARY OF THE ARGUMENT The trial court erred in admitting a photograph of a text message sent to and from a phone purportedly found the car Holloway was driving. The State offered no evidence to properly authenticate the statements as required by the Rules of Evidence. The State offered inadequate evidence to properly establish that Holloway sent the messages in the phone. Accordingly, the statements were inadmissible. Moreover, the statements themselves inadmissible hearsay with no exception under the rules. Therefore, the trial court erred in allowing it to be admitted into evidence. ARGUMENT Issue One: The trial court erred in admitting unauthenticated text messages in violation of Mississippi Rule of Evidence 901. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Burton v. State, 875 So. 2d 1120 (Miss. Ct. App. 2004). Abuse of discretion will only be found where a defendant shows clear prejudice resulting from an undue lack of constraint on the prosecution or undue constraint on the defense. Id. The trial court must exercise its discretion within the confines of the rules of evidence. Austin v. State, 784 So. 2d 186 (Miss. 2001). Any error in the admission or exclusion of evidence is not grounds for reversal unless the error adversely affected a substantial right of a party. Lynch v. State, 877 So. 2d 1254 (Miss. 2004). 3

At trial, the state offered into evidence, through the testimony of its lead investigator, text messages sent from a phone found inside the car what Holloway was driving. These messages, purported to come from Holloway, included conversations purporting to plan transactions for the sale of controlled substances. The text messages were not properly authenticated and Mississippi Rule of Evidence 901 was not satisfied. Mississippi Rule of Evidence 901 requires the authentication or identification as a condition precedent to admissibility. That condition is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. A party must make a prima facie showing of authenticity, and then the evidence goes to the jury, which ultimately will determine the evidence s authenticity. Smith v. State, 136 So. 3d 424, 433 (Miss. 2014)(citing Young v. Guild, 7 So. 3d 251, 262 (Miss. 2009)). Based on the rules of evidence, it is provided that an item may be authenticated by the testimony of a witness with knowledge that a matter is what it is claimed to be. Miss. R. Evid. 901 (b)(1). Smith explains that an electronic communication, such as a Facebook message, could be generated by someone other than the named sender. Smith, 136 So. 3d at 433 (quoting Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012)). Further, the fact that an electronic communication on its face purports to originate from a certain person is generally insufficient standing alone to authenticate that person as the author of the communications. Smith, 136 So. 3d at 433 (quoting Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012)). Subsequently, the court held that something more than simply a name and small blurry photograph purporting to be Smith is needed to identify the Facebook account in the first place. 4

Similar to the medium in Smith, the evidence not properly authenticated in this case, is also electronic communication a text message. To that end, the investigator testifying is not a witness with knowledge of the contents found within the cell phone, to include the text message regarding the greyhound bus ticket. The text messages did not originate from the investigator and he had no personal knowledge of the contents held within the cell phone. Given that the text messages did not originate from the investigator, he may not properly authenticate the evidence. In Smith, the court clarified what adequately presents a prima facie case of authentication. The court reasoned as follows: The purported sender admits to authorship, the purported sender is seen composing the communication, business records of an internet service provider or a cell phone company showing that the communication originated from the purported sender s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have access to the computer or cell phone, the communication contains information that only the purported sender could be expected to know, the purported sender responds to an exchange in such a way as to indicate circumstantially that he was in fact the author of the communication, or other circumstances peculiar to the particular case may suffice to establish a prima facie showing of authenticity. Smith, 136 So. 3d at 434 (quoting Tienda v. State, 358 S.W.3d 633, 639-641 (Tex. Crim. App. 2012)). The investigator, attempting to authenticate the photographs of the text messages received, is not the purported sender and thus, cannot authenticate the text messages. Furthermore, no business record accompanied the evidence from a cell phone company showing that the communication originated from the purported sender. Based on the evidence provided, there is no way to establish whether the text messages are what they purport to be. Ultimately, a text message emanated from a cell phone number assigned to the purported author has not typically been regarded as sufficient to support a finding of 5

authenticity. Id. at 434. Thus, the State should have presented a witness with knowledge and additional documentation to support authenticity of the text messages entered into evidence. The State never established who the phone belonged to, what that phone s number was, who the service provider for the phone number in question was, etc. Indeed, the State offered no evidence other than the contents of the phone, without any effort whatsoever to properly link that content to Holloway. This was error. Evidence and fact must be used to authenticate not supposition and hunch. For the above state reasons, the State failed to properly authenticate evidence in accordance with the Mississippi Rules of Evidence. The improper authentication of the text messages violated Mississippi Rule of Evidence 901, causing Holloway s fundamental right to a fair trial to be violated. Thus, this error in the admission of evidence is grounds for reversal because the error adversely affected a substantial right of a party. Issue Two: The trail court erred in allowing the State to admit into evidence inadmissible hearsay text messages. The improperly authenticated text messages were also inadmissible hearsay statements. The trial court erred in admitting hearsay statements over the objection of the defense. Mississippi Rule of Evidence 801 defines hearsay as an oral or written assertion other than one made by the declarant while testifying at the trial or hearing offered to prove the truth of the matter asserted. Miss. R. Evid. 801. The State introduced evidence through the testimony of the investigator regarding text messages containing hearsay. The statements made by the investigator regarding the purported text messages related to drug transactions were hearsay, not excluded by any exception. Because this issue involves an evidentiary ruling, the standard of review is abuse 6

of discretion. Kirk v. State, 160 So.3d 685, 699 (Miss. 2015). The investigator was allowed to testify to the contents of the photographs which contained out of court statements made by an individual other than the investigator. Upon the introduction of the photographs, counsel objected, and the objection was overruled. A hearsay statement is inadmissible unless the statement fits within an exception provided for in Mississippi Rule of Evidence 803 or 804. Washington v. Kelsey, 990 So. 2d 242, 247 (Miss. Ct. App. 2008) (citing Allstate Ins. Co. v. Green, 794 So. 2d 170, 177 (Miss. 2001)). The statement made in the text message was made out of court and was not a statement made by the investigator. Further, the State did not cite a hearsay exception rendering the statement admissible. A careful reading of the exceptions outlined in Rule 803 and Rule 804 of the Mississippi Rules of Evidence provide no exception or basis for the statement s admissibility. Who sent those messages? No facts presented at trial show. This issue is linked with the State s failure to properly authenticate who sent the text messages as presented in Issue One, above. Because the State failed to authenticate the messages, there is no factual basis with which to hold the statements are admissible as either a statement by a party or a statement against penal interest. See Miss. R. Evid. 803, 084. Therefore, the court erred in admitting the photographs containing inadmissible hearsay. This improper admission of evidence requires this Court reverse Holloway conviction and remand this matter for a new trial. 7

CONCLUSION Holloway submits that based on the propositions cited and briefed herinabove, together with any plain error noticed by this Court which has not been specifically raised but may appear to the Court on a full review of the record, the judgment of the trial court and his convictions and sentence should be reversed and vacated, respectively, and this matter remanded to the lower court for further proceedings. Respectfully submitted, Ladale Holloway, Appellant /s Justin T. Cook Miss. Bar. 102622 Office of State Public Defender Indigent Appeals division Post Office Box 3510 Jackson, MS 39207 8

CERTIFICATE OF SERVICE I, Justin T. Cook, counsel for the appellant, hereby certify that I have this day filed by means of the electronic case filing system the foregoing Brief of the Appellant, pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to the following ECF participants in this cause is made: Jason L. Davis Assistant Attorney General In addition, the following non-ecf participants are served by United States Mail, first class postage prepaid: Hon. Roger T. Clark Circuit Judge Post Office Box 1461 Gulfport, MS 39502 Joel Smith District Attorney P.O. Drawer 1180 Gulfport, MS 39502 THIS the 2nd day of February, 2018. s/ Justin T. Cook Justin T. Cook, Miss Bar #102622 9