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State v. Stevenson

Court of Appeals of New Mexico

October 22, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
THOMAS STEVENSON, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Briana H. Zamora, District Judge

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

          Law Offices of Adrianne R. Turner Adrianne R. Turner Albuquerque, NM for Appellant

          OPINION

          JULIE J. VARGAS JUDGE.

         {¶1} Defendant appeals his convictions for shooting at a motor vehicle (great bodily harm), in violation of NMSA 1978, Section 30-3-8(B) (1993), and aggravated assault with a deadly weapon, in violation of NMSA 1978, Section 30-3-2(A) (1963). He raises four main arguments on appeal, as discussed below. After careful consideration of Defendant's issues, we affirm.

         I. BACKGROUND

         {¶2} This case arises out of a violent confrontation between Defendant Thomas Stevenson (Defendant), Codefendant Oshay Toney (Codefendant), and Marvin Ellis (Victim). During the confrontation more than twenty shots were fired into the vehicle (SUV) Victim was driving, with both Defendant and Codefendant firing multiple shots. Defendant claimed he fired in defense of himself or others, and raised both of those doctrines as defenses at trial. He provided evidence that the SUV was driving forward when he fired at it, that he thought it had run over someone, and that it was headed toward a house that was sheltering several children. The State introduced contrary evidence indicating that the SUV was backing out of the driveway when the shooting started and was therefore not threatening Defendant or anyone else. The jury rejected Defendant's version of the events and convicted him of felony murder, voluntary manslaughter, shooting at a motor vehicle resulting in great bodily harm, and aggravated assault with a deadly weapon. The latter conviction was based on the fact that the owner of the SUV was in the passenger seat at the time the shooting began. Subsequently, the district court vacated the felony murder and voluntary manslaughter convictions on legal grounds not relevant to this opinion. Further facts will be provided as they are relevant to each issue discussed below.

         II. DISCUSSION

         A. Best-Evidence Rule

         {¶3} The State presented testimony from Victim's nephew (Nephew) about certain text messages he had seen on Victim's phone on the day of the incident. Nephew was able to identify the sender of the text messages as Defendant, and the messages (at least one of them) were threatening in tone. Defendant objected to admission of Nephew's testimony, arguing that the best evidence rule required the State to introduce the messages themselves, not second-hand testimony from a person who had merely read the messages.

         {¶4} Text messages are "writings" for purposes of the best-evidence rule and, absent an applicable exception, the original text messages or authorized duplicates of the same must be produced at trial. See State v. Hanson, 2015-NMCA-057, ¶¶ 6-7, 348 P.3d 1070. In Hanson we also recognized that an exception to the rule, for lost or destroyed evidence, could be applicable if a proper foundation was laid. See id. ¶ 13. In order to establish such a foundation, we held, the state must establish that it engaged in a diligent effort to obtain the originals of the writings at issue. Id. The State attempted to make that showing in this case by offering the testimony of Detective Leah Acata, the case agent working this homicide case.

         {¶5} Detective Acata testified on voir dire that (1) she obtained Victim's cell phone from the owner of the SUV, Victim's girlfriend (Girlfriend), who was present in the SUV when the shooting began; (2) she obtained a warrant authorizing her to access the contents of the phone and took the phone to the New Mexico Regional Computer Forensic Laboratory (RCFL), which is affiliated with the Federal Bureau of Investigation (FBI); (3) at the RCFL Detective Acata used the "Cellebrite" system at a kiosk to attempt to access the phone's contents, but was unable to get past the phone's "swipe passcode"; (4) she had previously used the same program and RCFL's kiosks hundreds of times to access phones, but as to Victim's phone the system was unable to get past the swipe passcode; (5) she contacted different members of Victim's family to see if any of them knew the swipe passcode that would grant her access to the phone, or, in the alternative, Victim's email address and PIN for the phone, to no avail; (6) she then left the phone with RCFL and submitted a service request asking RCFL personnel to access the phone, but was notified that RCFL was also unable to unlock the phone; (7) Detective Jeremy Guilmette from RCFL informed her that a program had not yet been written that could unlock the particular model of phone owned by Victim, given Victim's use of a swipe passcode instead of a numeric passcode; and (8) the phone was returned to Detective Acata by RCFL. Detective Acata reiterated several times that without a passcode, access to the phone's contents, including the text messages in question, could not be achieved.

         {¶6} In response to Detective Acata's voir dire testimony, Defendant did not present any evidence contradicting the information she provided concerning swipe passcodes and the ability to unlock Victim's phone. Counsel for Codefendant did point out that Detective Acata did not send the phone to "Quantico" (a reference to the FBI's central forensics laboratory) for processing. However, Detective Acata testified on redirect that it was her understanding that Quantico would not be able to access the phone unless a program had been written to do so, and no evidence was presented indicating that Quantico would have had any more success accessing the phone than did RCFL. Similarly, Codefendant raised the possibility that the necessary information to access the phone could have been obtained from Victim's phone carrier. But Detective Acata testified that such an effort would not have been successful, and no evidence contradicting this assertion was provided to the district court.

         {¶7} Having considered the foregoing evidence, the district court found that the State had met its burden under Hanson to show that it made a diligent effort to obtain the original text messages. See2015-NMCA-057, ΒΆ 13. The court also found that the inaccessibility of the messages was the equivalent of having the messages be physically lost or destroyed, for purposes of the best-evidence ...


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