Cert. grants – Jan. 16, 2014 – incl. issue of authentication of Facebook messages

On Jan. 15, 2014, the Miss. S. Ct. granted cert in the following two cases.  The first involves the authentication of Facebook messages. 

Smith v. State –  Smith’s wife Jenny had two children from a previous relationship. Smith would take care of the kids while Jenny worked at Subway.   One night Smith called Jenny and told her that Ethan had hit seventeen-month-old  Ally twice with an iron and that he had called the hospital and had been told to keep an eye on the girl. That night Ally was taken to the hospital where she died from blunt foprce trauma to the head. Smith was charged with capital murder in her death.  There were two issues on appeal.  The first had to do with Facebook messages ostensibly exchanged between Smith and Jenny wherein Smith complained about Ally’s incessant crying.  The only authentication of the messages was via Jenny’s testimony.   The Ct. of Appeals found that this was sufficient authentication.  “[Jenny’s] testimony was that these documents are the Facebook messages between her and Smith. Indeed, [Jenny’s] testimony ‘support[s] a finding that the matter in question is what its proponent claims.’”   The Court also held that the messages were not hearsay.  “Two of the three messages were sent by Smith. These messages were Smith’s own statements, and both statements are therefore not hearsay under Mississippi Rule of Evidence 801(d)(2)(A), because they are admissions by a party-opponent.”   While Jenny’s message might be considered hearsay, any error was harmless since she took the stand and testified to the same. 

The second issue involved admission of testimony that the iron found in the couple’s house had no fingerprints on it.  The defense objected on the basis that the officer who testified was not competent to testify to the information.  Then, at closing, over the defense’s objection,  the prosecution argued  that no fingerprints were found on the iron and that, if the defense had wanted to test the iron, they had the opportunity. As it turned out, the officer had not been the one to test the iron and the defense raised this as a confrontation issue on appeal.  The Court held that the confrontation issue was waived since that was not the objection at trial. Nor was it plain error since the iron evidence was inconsequential.

On a related note, on Jan. 17, 2014, the United States Supreme Court granted cert in two cases that involve the question of whether a warrant is needed to search a cellphone.

Cert. pet. in Riley v. California
cert. pet. in United States v. Wurlie

Misita v. Conn – The Wilsons and the Misitas were neighbors in Natchez.   In 2007,  the Wilsons sold 3 acres of their land  to the Misitas. The  warranty deed contained a covenant prohibiting the building of any structures on the property.  The Wilsons later sold their land to the Conns.  Shortly thereafter, Misita placed a movable advertisement sign for his metal and woodworking business (that he conducted on the property) on the three acres. The Conns objected to the placement of the sign, and sought enforcement of the warranty deed’s covenant which the chancellor granted.  On appeal, Misita argued the covenant was personal and not real.  The Ct. of Appeals found it to be real.  Misista also argued that the covenant was too unreasonable to be enforceable. The Court held that it was not unreasonable since it applied only to the three acres and did not prohibit Misita from erecting structures on his other land. 

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