Episode 10: Hicks, Davenport, and Lacure

[00:00:05.886] [SPEAKER_00] Under evidence rule 702, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, a witness qualified as an expert by knowledge, skill, or experience may testify thereto. The Court of Appeals has now held that an officer may testify to a suspect's general location based on cell tower data without being qualified as an expert. We'll be discussing that case, State v. LaCure, today, along with two other cases about digital evidence. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of District Attorneys. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina. John, the digital evidence in State v. Hicks consisted of text messages and photographs. Tell us a little bit about that case.
[00:01:02.259] [SPEAKER_01] Right. State v. Hicks is a case we got on December 31st of 2024. This is a case out of Randolph County involving a murder. The defendant in this case, Wendy Hicks, was convicted of murdering victim Caleb Adams. And the factual summary says that they met back in September of 2015. They were working at the same location, this DART container. Both of them were married at the time, but they developed an intimate relationship that went on until the day that the defendant killed Caleb on June 13th of 2017. It began, as it says, as sort of this intimate or personal relationship. The relationship did evolve over time when they began dating. using drugs together, and that included some things like the victim in the case introducing the defendant to a new drug supplier, and then that evolving into the defendant, you know, performing sexual favors on the dealer to secure methamphetamine, and then ultimately starting an intimate relationship with him, which she then attempted to hide from the victim in the case. There was sort of a long and difficult history going on between the two parties involving threats to disclose the relationship to spouses or to others and some confrontations and things between the two of them during this time. But as I said, it all came to a head on June 13th of 2017 when Caleb called the defendant, said he was on his way over to her house. She let some other people know and did not want him to come there, but he was coming to pick up some drugs. At 6.30 a.m., the defendant ends up calling 911 and telling the operator that she has shot Caleb and he's killed. He's found with two gunshot wounds to the back and he's deceased there sort of in the doorway to the room. There's conflicting stories that are given by the defendant at different times, you know, the officers on scene or later about exactly what happened in the course of this confrontation in the bedroom, about Whether they were struggling over the gun or whether he threatened her with it and then put it down and got the drugs and she was able to pick it up. But ultimately, all of that was presented to the jury, and they convicted her of the murder. As I said, both of the gunshot wounds were into the victim's back, either of which could have caused his death. Other evidence that came out at trial indicated that, yes, there was some methamphetamine of certain amounts found in the victim's blood. But ultimately, the defendant was convicted of second-degree murder. And this case was previously appealed. It went up to the Court of Appeals. And they concluded that the trial court had erred in giving an aggressor doctrine along with the self-defense instructions. The North Carolina Supreme Court reversed that and then sent it back down to the Court of Appeals to address some other issues that had not been reached because initially they found that to be not necessary given how they resolved this aggressor doctrine and self-defense issue. So it's now been sent back to the Court of Appeals to look at the other issues remaining on appeal. And the one that they are looking at in this opinion is basically whether the trial court erred by admitting a couple of exhibits at trial. These are exhibits 174 and 175. And so Court of Appeals has to do two things. First, they look at whether this might be invited error because, you know, without an objection at trial, they're only going to be evaluating it for plain error. And then depending upon that, they look at whether or not it actually was or was not error. So what are we talking about? What are Exhibits 174 and 175? What we get in the opinion is that these two exhibits are essentially binders or packets or printouts of text messages in Exhibit 174 recovered from the defendant's phone. And then 175 is something similar, but essentially multimedia text messages or basically what they describe as being photographs. And they're labeled respectively as the Report for Galaxy S7 SMS text messages and Report for Galaxy S7 multimedia messages. Now, nothing particularly unusual about text messages or even photographs on a cell phone being part of the evidence in a homicide case, but what's a little bit different in this case is sort of both the content of what's presented and also the format or the way in which it's presented to the jury. Content-wise, what we're talking about are actually a long time span of text messages. It's not only messages, for example, between the decedent and the defendant. It is essentially all the messages that were found on this phone, including other messages between the defendant and her mother or family members or friends and even, you know, other people that she was romantically involved with, for example. Things that are arguably outside of the scope of just sort of what happened with this drug-related confrontation at six something in the morning on that one particular day. But then second, there's this issue about the way that it's presented to the jury. what the state asked to do was, assuming they're authenticated and admitted, what the state wanted to do was have these binders or packets, essentially a copy given to each juror so that they could follow along and flip through as the prosecutor is going through with it. And the court, when asked about this, of course said they would have to be admitted first and they don't need an outright stipulation from the defense, but asked the prosecutor what we're talking about. The prosecutor replied, They're going to be admitted for the witness prior to that, but because of the nature of the, just the nature of the records, how many there are, we're gonna be flipping back and forth. I wanted to bring that to your honor's attention. I've spoken to Mr. Wells, the defense attorney, about it, just to go ahead and make sure that's okay before I start handing stuff out. So, got a witness on the stand, I'm gonna be asking about this message, that message, this picture, that picture. It just makes sense for the jury to have this whole binder in front of them so they can look through and see what we're doing. The trial court asked if the defense counsel wanted to be heard about that, and defense counsel replied, Now, That's relevant because, as I said, the first question the Court of Appeals has to answer is, was this invited error, if it was error at all, to allow all these materials to come in in 174 and 175? The majority opinion goes through looking at that and ultimately concludes, No, it's not invited error. This is the defense attorney basically agreeing or saying those words about, I think it's a good idea, I might do the same thing. But they distinguish that from something like the defense attorney truly inviting it or consenting to it or suggesting it to the court. That basically going along or not fighting so hard against what the state is already going to do, they conclude that that is distinguishable and did not rise to the level of invited error. Joe, you've got the background I don't have of working at the AG's office for all those years. Help me understand that. I mean, when I read those words about, I think that's probably a pretty good idea, I would have taken that to be at least the functional equivalent of saying I consent to it. But they draw that line and say it's not the same thing.
[00:07:56.550] [SPEAKER_00] Yeah, this has been kind of a hot issue within the last few years. Typically on appeal, what we're talking about is the difference between harmless error, which is your standard situation where a defendant will object to the introduction of evidence or to an instruction. And then the question on appeal is one, whether the trial court erred in overruling that objection. And then secondly, whether that error is prejudicial. The plain error standard exists for those, they're supposed to be rare situations where a defendant fails to object, but the trial court has made what's arguably an error And then the Court of Appeals or the Supreme Court has to determine whether that error rises to the level of plain error. That is, it's so fundamental or so prejudicial that but for the error, maybe the jury would not have returned a conviction. There's another possibility here in those situations. And the classical example is where the defendant himself elicited the evidence or where the defendant himself requested an instruction, the rule is that on appeal, the defendant will not be heard to complain that that evidence was admitted or that instruction was given in error when he himself was the cause of that admission or instruction. Now, that doctrine of invited error has been expanded to include also those scenarios where a defendant not only actually requested the instruction or elicited the evidence, but also maybe consented to or given an opportunity to respond, prosecutor's suggestion that evidence be admitted or that an instruction be given. But because of that kind of hybrid or that not so clear scenario where it's not a situation where the defendant himself elicited the evidence or requested the instruction, you get kind of an array of cases that have to decide what was the extent of the defendant's participation? And does that extent of participation rise to the level of him actually contributing to the error that ultimately occurred? In this situation, there really is an extensive discussion from the Court of Appeals about whether this constituted invited error, because you do see that defense counsel kind of agreed to at least the method of presenting this evidence to the jury. And as I recall from this case, I think the defendant himself used some of that evidence in his own cross-examination of these witnesses. So the question was, Is this more like a scenario where the defendant merely failed to object, or is it more like a scenario where the defendant himself contributed to what ultimately is a legal error committed by the trial court?
[00:10:08.376] [SPEAKER_01] You know, and you mentioned there's the way it's being presented to the jury, but also the content. And it didn't seem like there was any consent or stipulation about admitting the messages to begin with. And so applying all of that here, the majority opinion does say we hold the invited error doctrine does not apply under the facts of this case. and then says, we will review the state's challenge exhibits 174 and 175 for plain error. And so that's what they then proceed to do. And again, I won't get into all the details of every one of these messages, but they go through and catalog a number of them. It's a fairly lengthy opinion, and they go through a lot of these different messages pointing out that these are, as I said earlier, they're just completely unrelated messages, things painting the defendant in a negative light, you know, saying negative things about law enforcement or other people or, you know, making sort of off-color or improper jokes or humor about people getting hurt. And then, of course, that 175 also includes these photographs, and they are literally photographs depicting sexual acts between the defendant and some of these other people. And the court goes through and is pretty... bothered by a lot of the content that came in under 174 and 175, talking about how the fact that it is just unfairly prejudicial, that there's not any clear relevance that that may have to what's actually being argued about in the case. And they analogize this to cases we might be more familiar with, like State v. Hennis, for example, the one where numerous gory photographs are projected on the large screen directly behind the defendant's head. And that alone can be prejudicial to be putting this kind of irrelevant stuff in front of the jury and then again in this particular way where it's just left with them for an extended period of time to flip through and review and study not just looking at whatever one particular thing that we might actually be asking them to look at per this particular witness's testimony so looking at what they call the highly inflammatory and prejudicial information presented in the exhibits that were held by the jurors throughout the trial probably caused them to ignore the substantial evidence of self-defense. Because remember, again, there was this contested issue of what exactly happened in that bedroom. Who started it? Who did what? Who had the gun? That was sort of the argument that was being presented by the defense at trial. So the majority's final conclusion is, looking at all this, in their view, prejudicial information, the majority says, absent the character assassination of defendant, through the admission into evidence of exhibits 174 and 175, the jury probably would have reached a different result due to the substantial and persuasive evidence demonstrating that she acted in self-defense. Now, there is a dissent from Judge Murphy. Judge Murphy agrees that it was error to let the 174 and 175 materials be presented and be left long term with the jury that way. But again, we're talking about plain error analysis. And so as you said, the standard for plain error is we have to examine whether absent the error, the jury probably would have returned a different verdict. And Judge Murphy talks about how that wording is very important. Showing that the jury probably would have reached a different result requires a showing that the outcome is significantly more likely than not. In ordinary English usage, it means an event will probably occur, it is almost certain, if the expected outcome is treated as synonymous with presumably or doubtless. Anyway, Judge Murphy is essentially looking at all this and saying, when disregarding the challenge evidence from 174 and 175, that would make this a close case for the jury. It's not something where we can just conclude that the jury probably, certainly, or doubtlessly would have reached a different result. So Judge Murphy would have held that we didn't meet that level for a plain error reversal, but that's not how the majority saw it. So, you know, takeaway for the prosecutors would be, number one, to just make sure we've given some thought to exactly what it is we want to present. Yes, we've got the entire phone download. It's got all these messages, all these photos. But give a thought to which one of those do we really want to put in front of the jury without risking any kind of prejudice and then thinking about the way that we're going to do it. You know, it's understandable that we want the convenience of them being able to flip back and forth through it like that. have to consider the risk that a court may look at that negatively, saying it's not really controlling what they're going to do with it or how they're going to view it. Right. So then, Joe, I think the next one we had up was the State
[00:14:23.945] [SPEAKER_00] v. Davenport. State v. Davenport. This was a case decided by the Court of Appeals on January 15, 2025. The factual summary is that on the evening of December 10, 2020, there were some people gathered at Chonquilla Wall's home in Scotland County. Among those people that were gathered there were Wall's father, who ends up being the victim in this case, a guy by the name of Frankie Davenport. At some point, Jimmy Davenport, Frankie's brother, and the defendant in this case arrived and had what the Court of Appeals said was a back and forth exchange with Frankie. Ultimately, the defendant shot Frankie, who ultimately died. The defendant was charged based on that conduct with first-degree murder. At trial, Wall testified that she communicated with defendant through Facebook Messenger. She said she believed that Frankie, the victim, also communicated with defendant through Facebook Messenger. The state then sought to introduce photographs of defendant's Facebook messages to Frankie, to the victim. There was an officer who testified that there was a cell phone collected at the scene. He later retrieved the phone, opened the Facebook Messenger app, accessed a message thread under the name Jimmy Davenport, and then took pictures of the messages that he found there. The trial court initially sustained the defendant's objection to those messages, but allowed the state to take the officer on voir dire. The officer read the messages, identified how incoming and outgoing messages were color coded, explained again how he had obtained the messages from the Jimmy thread on the Facebook Messenger. And then the trial court reversed its ruling and found that the state had properly authenticated the messages and overruled the defendant's objection. Defendant was convicted of first degree murder, sentenced to life, gave notice of appeal. And then on appeal, the defendant basically raised two issues about the admission of evidence. First, that the trial court aired by admitting those Facebook messages. And secondly, that the trial court also aired by admitting a CAD report, which was basically the report of a 911 call that was received on that same evening at about 3.43 a.m., apparently two hours later than this shooting occurred. With regard to the Facebook messages, the Court of Appeals looked to Rule 901 of the Rules of Evidence and posited that the requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. There's a specific list of examples Evidence may be authenticated by distinctive characteristics, appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. And the Court of Appeals emphasized here that the burden is not high, right? It should not be very difficult to authenticate a particular piece of evidence. It cited a precedent for the proposition that the authorship and genuineness of letters may be proved by circumstantial evidence. With regard to digital evidence, it cited both State v. Clemens, which is a case from 2020, and a case called State v. Ford from 2016. Of those two, Ford is maybe the easier case. In Ford, it was screenshots of the defendant's social media page, very clearly identified as belonging to the defendant. The defendant's identifying information was there. State v. Clemens was a little bit more difficult. There were Facebook comments posted on the defendant's daughter's account. So it wasn't a digital account that was explicitly linked to the defendant. But based on the internal content of those messages, the Court of Appeals was able to say that those were authenticated by showing that those were connected with the defendant and the patterns of speech that he typically used. Here, that witness, Shankwila Wall, identified the victim's cell phone and again testified that the victim communicated with the defendant via Facebook Messenger. And then the officer explained how he had retrieved the messages, read their content of the messages, and then here's the quotation from the Court of Appeals, the messages themselves contained references and information corroborating their identity. So based on that, he was able to say that these Facebook messages were authenticated by distinctive characteristics taken in conjunction with circumstances. content of the messages themselves, they were able to authenticate those. The Court of Appeals concluded that the messages contained sufficient distinctive characteristics to authenticate the messages, and therefore the trial court did not err in admitting them.
[00:18:29.544] [SPEAKER_01] You know, Joe, this doesn't seem like a particularly surprising outcome in the case to me, but it's one that I think a lot of prosecutors are still going to be glad to have. We've talked a lot about Ford and Clemens at some of our other training programs on digital evidence and so forth. And Ford was sort of more tied to the account, the account name, the photograph and so forth. And then you've got Clemens sort of going the other way where, as you said, it's definitely not his account. I mean, that's the whole point is using somebody else's account, but we can look more at the facts and circumstances of the case. And so I mean, to me, each of those were good and kind of new and important to have when we got them. This case, I was glad to see because I feel like it kind of signals that we've crossed over another line of we're no longer figuring this stuff out. It's been figured out. And now these are the cases applying Ford and Clemens to similar situations and coming out the way that they should. So going
[00:19:21.126] [SPEAKER_00] back, applying state fee Clemens and state fee Ford, when you've got those references and information within the messages corroborating their identity, the requirement of authentication should not put too much of a burden on the
[00:19:32.979] [SPEAKER_01] state. I agree. And I think that's a really important point for prosecutors to remember. It's mentioned in here, and they cite back to state versus Ford, that language about the burden to authenticate under Rule 901 is not that high. It only requires a prima facie showing. And I think sometimes people forget, when we talk about a prima facie showing, all that means is that there's something in the record from which the trier of fact could conclude that it is what it purports to be. If there's still some debate or some question, that's what the jury figures out. But when you're offering it and the judge is making the decision, it should just be, is there something here we can point to that indicates there's a good chance it is what it purports to be. That should be all it takes. And I think cases like this help us get there.
[00:20:16.867] [SPEAKER_00] Right. There was one other issue here about that CAD report. I'm not going to spend too much time on that because the issue was not so much a digital evidence problem as a relevance issue. The defendant had argued that the trial court aired by admitting this CAD report and the report was merely that a 911 call had been made apparently two hours after the shooting. The defendant argued that there was some inconsistency in the trial court's ruling because the trial court allowed the report to come in just that a 911 call had been received, but then did not allow the officer to testify as to the internal content of that report. The Court of Appeals here said that the CAD report was relevant to show that the incident occurred in the early morning hours of December 10th. Secondly, the fact that a 911 call was made was relevant to explain subsequent conduct. Apparently the officer received a report of that call and then left the location. So ultimately the Court of Appeals concluded that the trial court did not err by admitting the CAD report. The end result of this, there was no error in the admission of the Facebook messages, no error in the admission of that CAD report. And so ultimately the defendant was not entitled to relief on appeal.
[00:21:17.029] [SPEAKER_01] Good one to have for any of this digital or social media evidence, which, of course, we're just going to continue to see more and more in all of these cases. Right. I think La Cure is the last case we had on for today.
[00:21:26.227] [SPEAKER_00] That was about cell phone
[00:21:27.209] [SPEAKER_01] towers. So continuing in this sort of digital evidence theme, this is a case that was decided on December 31st of 2024. This is a Wake County homicide case. It's actually... Two defendants, I'm calling it State v. LaCure. There's a second defendant, Elijah Emello. But this is a homicide case that happened. Both of them were ultimately indicted and convicted for first-degree murder for the death of Desmond Jenkins. It happened back in August of 2019. The victim was fatally shot as he was about to go into his home after he'd been dropped off by a friend. And unbeknownst to him, the defendants, in driving in separate vehicles but FaceTiming and communicating with each other, had followed him to his home, and immediately after the shooting, they sped off in their separate vehicles. The cases were consolidated for trial. The state presented 33 witnesses, 64 exhibits coming into the evidence. Ultimately, they are convicted, both of them guilty as charged and sentenced to life in prison without the possibility of parole. An interesting sentencing condition that we may talk about. The judge also noted in the judgment that they would not receive vocational or educational classes for the first two years of their sentences. So both defendants appealed, and there are five different issues in here, but the one that I mainly wanted to focus on is dealing with officer testimony, dealing with some of the cell phone records. You know, again, they were communicating by FaceTime, and the state put up the testimony through Officer Morton, basically explaining sort of what was shown in these phone records by looking at the data from the cell towers to show the movements of these two people on the night of the victim's killing. And the defendant is arguing that that kind of information or testimony goes beyond the knowledge or capacity of a lay witness to get up and testify. If you want to get up here and start doing...
[00:23:15.559] [SPEAKER_00] I
[00:23:15.599] [SPEAKER_01] take it Morton was not admitted as an expert. Exactly, and they're saying that if you want somebody who's gonna get up here and start talking about this kind of cell tower pinging and GPS plotting and all of that, that we need somebody who can come in here and be an expert witness to give that sort of testimony. Interesting, the Court of Appeals notes that neither party cites a published case from North Carolina determining whether an officer's testimony regarding the general location of a suspect based on cell tower data constitutes lay testimony or expert testimony. And I think a number of prosecutors who are listening to this podcast would say, no kidding. I mean, this is something that we've sort of wondered about and been looking for some good guidance on for a long time. We've sort of stitched together an argument by looking at cases in other areas, where even a probation officer could talk about GPS plotting what somebody's ankle monitor showed, or maybe a detective is talking about plotting GPS based on a tracker that was put on a car. We've had some cases sort of in the ballpark, but this phone thing has been hanging out there as a little bit of an unresolved question for us for some time. Can I just call the detective? Can I just call the officer to make this common sense reading of what's shown in these records? That at this time, this device was pinging at this GPS coordinate, and then could we plot that out on an illustrative exhibit something like that. So without any clear good North Carolina precedent to turn to, The court in this case looks at two different things. They look at one unpublished North Carolina case, State v. Joyner from 2021. And then they also look at an Iowa Supreme Court case just for guidance, a case called State v. Boothby from Iowa in 2020. And ultimately on this issue, they say that logic is persuasive. Those aren't binding precedent, but they find the logic persuasive. And they say that should be the rule for North Carolina as well. And good news for the prosecutors, they agree that a lay witness like an officer should be allowed to give that kind of, well, I don't want to overstate it, Joe, let's say at least that kind of basic testimony about looking at the data. It's as simple as saying, where are these coordinates? And yes, the officer could testify to that. Put a finer point on it. What they say, quoting from that Iowa Boothby case, they say, If the witness conveys inferences that can be drawn from factual information contained in the phone records using a process of reasoning familiar in everyday life, such as plotting data on a map, the testimony qualifies as lay testimony. This includes opinions about the generalized location of a phone within the coverage area of the pinged tower, as long as the opinion is premised on factual information from the phone company. Now, here's where we go on. They then say, however, when a witness relies on specialized knowledge about how a cell tower functions, such as the numerous factors that determine why a phone pings off one cell tower instead of another, to opine about the coverage area of a tower or a cell phone's location, that witness must first be qualified as an expert. So, the basic plotting that I think we want to do in the vast majority of these cases, I think you could do that through your lay witness. If we're going to get into things like, for example, is it possible he could have been over here even though it pinged on this tower? Could he ever ping off the farther away tower based on network traffic? If we're getting into that kind of stuff, then I think you're going to want to get that expert opinion. But this sort of basic stuff of, look, I'm just reading the coordinates. I'm just putting that on a map. Functionally, that's no different than me putting in a I don't know, a destination and the GPS on my phone, right? I mean, we all understand what it looks like to have a pin on a map, on a program, and that's not a process of reasoning that falls outside of normal human understanding, so we could do that. There were, as I said, a couple of other issues that were raised in the case, dealing with authenticating video, for example, but the witnesses had sufficient knowledge of the cameras to authenticate it, so that one was dispensed with. Arguing ineffective assistance of counsel, for example, saying that attorney's language in closing, you know, where he was trying to downplay his client's guilt, referring to him as a moron or he's stupid or he's just an idiot. He wasn't really conspiring. That was ultimately deemed, as they say, on the cold record was not sufficient to rise to the level of showing such unprofessional manner that the defendant was prejudiced. And finally, rejecting a motion to sever between the defendants, they argued that since in closing their attorneys were basically pointing the finger at each other's clients, that maybe that meant they had antagonistic defenses and the cases should have been severed. But the court said that's not the case here. This is not an example of where, so the cases talk about It's antagonistic and should be severed when essentially the prosecutor can just sit back almost at trial and let the defendants prove each other's guilt. And that's not what this was. You know, this was just arguments in closing. And as they point out, closing is not evidence. Tell us about that
[00:28:08.116] [SPEAKER_00] sentencing condition. That
[00:28:08.959] [SPEAKER_01] ends up being a problem, right? It is. The judge did note in the judgment that in addition to the fact that they were getting life in prison without parole, the trial court said that both of them would be prohibited from receiving any educational or vocational training during the first 22 years of their imprisonment. And the state conceded that that was error, and the Court of Appeals agrees. They just say that's, whatever the motivation may have been, that was outside the purview of the sentencing judge. That's something that the Department of Corrections will have to decide later. once they get those people in there and decide what they may or may not be appropriate for. So
[00:28:42.155] [SPEAKER_00] does the defendant get a resentencing out of that?
[00:28:44.660] [SPEAKER_01] No, I believe their disposition was they basically just said they reversed the special condition in the judgments restricting defendants' ability to engage in vocational training or educational classes. Joe, you're our appellate guru. You may know better than I do, but I think that we would just strike that judgment and would not require a full new sentencing. So they should just serve the life in prison without parole. So a number of different issues there, but this thing about lay witnesses testifying as to GPS coordinates on a phone, I think consistent with what we've done with other kinds of GPS data, but Fantastic for prosecutors to now have clearly in an appellate opinion related to these kind of phone records.
[00:29:21.200] [SPEAKER_00] Jonathan, if I understand correctly, the rule that we're taking from that Iowa case is it's a difference between just being able to plot the locations on a map and basically testify where the defendant might have been on the night in question. And on the other hand, if you're going to get into the technical aspects, requirements of... how a cell phone tower works or why it's pinging a particular location at a particular time. That kind of thing is going to require an expert. Is that your
[00:29:45.200] [SPEAKER_01] understanding? I think that's right. And I think that makes sense. A detective is just as capable as you or me or anybody else of putting coordinates on a map and seeing what that looks like and then marking them with a timestamp. That's not anything particularly... highly advanced or technical. We don't have to be engineers to do that. It does get to be a little different if we're talking about why would the network tower particularly connect on this face versus that face? Or what could we speculate about that? What opinions could we give? Can we conclude that he must have only been here? I think we can still present the facts. And then I think in closing, we can certainly argue to the jury what we think that means. And I think, again, most of the time, I think probably going to be all we need i mean that's what we're trying to do you know if if the defense wants to make the argument that you know some some other mysterious character maybe had my phone you know this doesn't conclusively prove that i was at this location at this time you're right it proves that this device was there and and we can make those arguments about who had that device but but yeah for those basic as they say basic factual information contained in the phone records using a process of reasoning that is familiar in everyday life, such as plotting data on a map, then this qualifies as lay testimony. So that should be fair game for your officers, detectives, or other witnesses to speak to.
[00:31:02.638] [SPEAKER_00] That's all for today. In this episode, we discussed State v. Hicks regarding prejudicial error in the admission of text messages and photos, State v. Davenport about how to authenticate Facebook messages, and State v. LaCure allowing a lay witness to testify with regard to cell tower data. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are coming to you from the recording studio at the School of Government in Chapel Hill. Thanks to our producer, Paul Bonner, and to Gustav Holst for our music. If you liked what you heard today, if you have questions, comments, concerns, if there's a topic you'd like for us to cover in a later episode, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's jhyde at
[00:31:51.314] [SPEAKER_01] sog.unc.edu. And I'm Jonathan Holbrook, and I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot o-r-g. Thank you, John. That would be the showing for the state. Sounds good, Joe. Thanks. Hope it helped.