Unauthenticated cell records lead to reversal of robbery-related conviction

Olivia Covington for www.ttheindianalawyer.com

onvicted of aiding a robbery after the Indiana Court of Appeals reversed her conviction, finding the state failed to properly authenticate cellphone records it said tied the woman to the crime.

In Jaqueline B. Walters v. State of Indiana, 18A-CR-1021, Jaqueline Walters was charged with Level 3 felony aiding, inducing or causing an armed robbery after the phone number she shared with her boyfriend, known as 6065 Phone, was tied to a 2015 robbery of the Morgantown IGA where Walters worked. Records from Verizon listed messages between 6065 Phone and John Nocito, a friend of Walters’ boyfriend, discussing a plan to rob the IGA. Walters was present during the robbery.

After Walters’ initial trial resulted in a hung jury, the state scheduled a retrial and requested an evidentiary hearing to have the text messages “deemed statements of coconspirators so the statements would not be hearsay.” The state wanted the Morgan Superior Court to take judicial notice of the cellphone records, which had been presented during the trial against Nocito and Walters’ boyfriend.

The trial court agreed to take judicial notice over Walters’ objection, and the state supported its conspiracy theory by presenting messages saying Nocito intended to work with “Jackie” to carry out the robbery and that Walters could provide information about the best time of day to rob the store. The state also presented an affidavit of certification from Verizon that was dated Feb. 27, 2017.

Walters objected to the admission of the phone records, arguing they were not self-authenticating and noting the certification did not list what phone number it applied to or what warrant it was responding to. But the trial court determined there was a certification from a business records custodian and, thus, admitted the cell records.

A jury then found Walters guilty, but the Indiana Court of Appeals overturned her conviction Friday. Judge Melissa May, writing for a unanimous appellate panel, noted the certification was issued roughly 18 months after the records were obtained and did not list the applicable phone number or dates of the records.

Without that information, the appellate panel said the certificate of authenticity “lacks indicia of reliability.”

“We cannot say the State provided proper authentication of these records to breach the threshold question of admissibility,” May wrote, citing to Speybroeck v. State, 875 N.E.2d 813 (Ind. Ct. App. 2007), reh’g denied. “Without authentication, we do not reach the question of whether the statements made therein were admissible as coconspirator statements. The trial court abused its discretion when it admitted the evidence of the phone records for 6065 Phone without proper authentication.”

Further, without the phone records, the appellate panel determined there was not enough evidence to sustain the state’s case against Walters. Thus, her conviction was reversed, but with leeway for the trial court to retry her.

“While ‘double jeopardy forbids a retrial … if the reviewing court concludes that the evidence is legally insufficient to support the conviction[,]’ if the State were able to authenticate the phone records for 6065 Phone, the jury could have found Walters had conspired with Nocito,” May wrote. “Therefore, the Double Jeopardy Clause does not preclude a retrial.”