State v. Sample

State of Maryland v. Hayes Sample, No. 54, September Term, 2019 MARYLAND RULE 5-901(a) AND (b)(4) – AUTHENTICATING SOCIAL MEDIA EVIDENCE THROUGH CIRCUMSTANTIAL EVIDENCE – “REASONABLE JUROR” TEST – Court of Appeals held that trial court did not abuse its discretion in admitting Facebook-related evidence, as there was sufficient circumstantial evidence under Maryland Rule 5-901(b)(4) for reasonable juror to find that Facebook profiles belonged to defendant, Hayes Sample, and to defendant’s alleged accomplice, Claude Mayo, and to find that defendant unfriended accomplice on Facebook day after attempted armed robbery, in which accomplice was fatally shot. Court of Appeals reaffirmed holding in Sublet v. State, 442 Md. 632, 678 , 113 A.3d 695, 722 (2015), and concluded that, to authenticate social media evidence, there must be proof from which reasonable juror could find that it is more likely than not that evidence is what proponent purports it to be. Court of Appeals concluded State was not required to eliminate all possibilities that were inconsistent with authenticity, or prove beyond any question that defendant was one who used Facebook profile to unfriend accomplice’s Facebook profile. Court of Appeals held that there was sufficient circumstantial evidence under Maryland Rule 5-901(b)(4) for trial court to conclude that reasonable juror could find that it was more likely than not that “SoLo Haze” Facebook profile belonged to Sample and that “claude.mayo.5” Facebook profile belonged to Mayo.

Evidence indicating that SoLo Haze profile belonged to Sample and claude.mayo.5 profile belonged to Mayo supported conclusion that Sample used SoLo Haze profile to unfriend claude.mayo.5 profile. Court of Appeals determined that, moreover, additional evidence supporting conclusion that more likely than not Sample used SoLo Haze profile to unfriend claude.mayo.5 profile included temporal proximity of unfriending to attempted armed robbery, Sample had motive to distance himself from Mayo, and during seventeen-day period after attempted armed robbery, claude.mayo.5 Facebook profile was only profile that was unfriended from SoLo Haze Facebook profile. All of these circumstances were sufficient for trial court to allow Facebook-related evidence to be presented to jury. Circuit Court for Baltimore County Case No. 03-K-16-000108 Argued: March 9, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 54 September Term, 2019 STATE OF MARYLAND v. HAYES SAMPLE Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Watts, J. Filed: May 11, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-19 12:56-04:00 Suzanne C. Johnson, Clerk It is axiomatic that for a trial court to admit evidence, there must be sufficient indicia that the evidence is authentic—i.e., that the evidence “is what its proponent claims.” Md. R. 5-901(a). A party can sufficiently authenticate evidence through “[c]ircumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.” Md. R. 5- 901(b)(4). On two prior occasions, this Court has addressed authenticating social media1 evidence through circumstantial evidence under Maryland Rule 5-901(b)(4).

In Griffin v. State, 419 Md. 343, 357 , 19 A.3d 415, 423-24 (2011), this Court held that a trial court abused its discretion in admitting alleged printouts of the defendant’s girlfriend’s MySpace profile, as the same had not been sufficiently authenticated through circumstantial evidence under Maryland Rule 5-901(b)(4) as belonging to the girlfriend. In Sublet v. State, 442 Md. 632, 672-73, 675-77 , 113 A.3d 695, 719, 720-22 (2015), in an opinion that 1 “Social media” are “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos)[.]” Social Media, Merriam-Webster, https://www.merriam-webster.com/dictionary/social%20media [https: //perma.cc/P25R-66L2]. In turn, on a social networking website, “people create and maintain interpersonal relationships[.]” Social Network, Merriam-Webster, https://www. merriam-webster.com/dictionary/social%20network [https://perma.cc/WS6M-S25L]. On a microblogging website, people engage in “blogging [] with severe space or size constraints[,] typically by posting frequent brief messages about personal activities[.]” Microblogging, Merriam-Webster, https://www.merriam-webster.com/dictionary/ microblogging [https://perma.cc/27ZZ-GMHX].

Facebook and MySpace are examples of social networking websites, while Twitter (on which postings are known as “tweets”) is an example of a microblogging website. Benjamin Fryer, Esq., Moore & Van Allen, The Board, The Boss and Facebook, 25 No. 14 Westlaw Journal Employment 1, at ¹ (Feb. 8, 2011). consolidated three cases, this Court applied Maryland Rule 5-901(b)(4) and held that the trial courts did not abuse their discretion in admitting or excluding certain social media evidence. This Court concluded that, to admit social media evidence, a trial court “must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims[.]” Id. at 678 , 113 A.3d at 722 . This case requires us to apply Maryland Rule 5-901(b)(4) and the “reasonable juror” test to determine whether a trial court abused its discretion in allowing a detective to testify that, the day after a defendant and his accomplice allegedly participated in an attempted armed robbery—during which the defendant’s accomplice was fatally shot—the defendant unfriended2 his accomplice on Facebook.

In the Circuit Court for Baltimore County, the State, Petitioner, charged Hayes Sample, Respondent, with attempted robbery with a dangerous weapon and other crimes. At trial, the State offered evidence that Sample and his accomplice, Claude Mayo, using guns, attempted to rob a liquor store. The liquor store’s owner had a gun too, and used it to shoot Mayo, who died a short distance outside the liquor store. Sample fled the scene.

While investigating the attempted armed robbery, a detective searched Facebook for a profile associated with the name Claude Mayo. Ultimately, the detective requested from Facebook, and received, “Facebook Business Records” regarding two Facebook profiles— 2 Both “unfriend” and “defriend” mean “to remove (someone) from a list of designated friends on a person’s social networking website[.]” Unfriend, Merriam- Webster, https://www.merriam-webster.com/dictionary/unfriend [https://perma.cc/ R6BM-EV7C]; Defriend, Merriam-Webster, https://www.merriam-webster.com/ dictionary/defriend [https://perma.cc/9M5G-QFGZ]. -2- "claude.mayo.5”3 and “SoLo Haze”— as well as a “Certificate of Authenticity of Domestic Records of Regularly Conducted Activity[.]” The Facebook Business Records regarding the SoLo Haze Facebook profile indicated that the e-mail address “[email protected]” was registered to that profile. The SoLo Haze Facebook profile identified Baltimore as the “current city,” and listed Edmondson-Westside High School and Towson University as the user’s “[c]onnections[.]” The owner of the SoLo Haze Facebook profile was friends with the owner of a Facebook profile named “Skky DaLimit Lynn[.]” Prior to trial, Sample’s counsel advised the circuit court that a Skkyla Lynn would be called as a defense witness. The Facebook Business Records regarding the claude.mayo.5 Facebook profile also listed Baltimore as the “current city,” and listed Patterson High School as the user’s “[c]onnection[.]” The owner of the claude.mayo.5 Facebook profile was friends with the owner of a Facebook profile named “Shantell Richardson[.]” Shantell Richardson is Mayo’s mother’s name.

Significantly, the Facebook Business Records regarding the SoLo Haze profile indicate that, the day after Sample and Mayo allegedly attempted to rob the liquor store and Mayo was fatally shot, the claude.mayo.5 profile was unfriended from the SoLo Haze profile. During the seventeen-day period to which the Facebook Business Records pertained, the claude.mayo.5 profile was the only one, of 175 profiles with which the SoLo 3 In the Facebook Business Records, the name associated with the Facebook service is Claude Mayo and the “vanity name” is identified as “claude.mayo.5[.]” We will refer to this Facebook profile as the “claude.mayo.5” Facebook profile. -3- Haze profile was friends, to have been unfriended. In the circuit court, Sample filed a motion in limine and a memorandum in support thereof, contending that the State would not be able to sufficiently authenticate the Facebook Business Records. The circuit court denied the motion.

At trial, over Sample’s counsel’s objection, the prosecutor elicited testimony from the detective concerning information from the Facebook Business Records, including the circumstance that the Facebook Business Records regarding the SoLo Haze Facebook profile showed that, the day after the attempted armed robbery, the claude.mayo.5 Facebook profile had been unfriended. The jury found Sample guilty of attempted robbery with a dangerous weapon and other crimes. Sample appealed, and the Court of Special Appeals reversed the convictions and remanded the case for a new trial, reasoning that the circuit court abused its discretion in admitting the Facebook-related testimony. See Hayes Sample v. State, No. 1715, Sept. Term, 2017, 2019 WL 3451812 , at ⁴-5 (Md. Ct. Spec.

App. July 31, 2019). The State filed a petition for a writ of certiorari, which this Court granted. See State v. Sample, 466 Md. 310 , 219 A.3d 526 (2019). Before us, the State contends that there was sufficient circumstantial evidence for a reasonable juror to find that the SoLo Haze Facebook profile belonged to Sample, that the claude.mayo.5 Facebook profile belonged to Mayo, and that Sample used his profile to unfriend the claude.mayo.5 profile.

According to the State, Sample had a motive to distance himself from Mayo immediately after the crime and did so before his status as a suspect in the attempted armed robbery became publicly known. Sample responds that, -4- despite there being evidence that he created the SoLo Haze Facebook profile, there was insufficient evidence that he was the person who used the profile to unfriend the claude.mayo.5 profile. We hold that the circuit court did not abuse its discretion in admitting the Facebook- related evidence, as there was sufficient circumstantial evidence under Maryland Rule 5- 901(b)(4) for a reasonable juror to find that the SoLo Haze Facebook profile belonged to Sample, that the claude.mayo.5 Facebook profile belonged to Mayo, and that Sample used the SoLo Haze profile to unfriend the claude.mayo.5 profile the day after the shooting. We conclude that the standard of proof for authenticating social media evidence is the preponderance of evidence standard, i.e., there must be sufficient circumstantial evidence for a reasonable juror to find that it is more likely than not that the social media evidence is what it is purported to be.

Here, the circumstantial evidence supporting the conclusion that the profiles belonged to Sample and Mayo consists of evidence that the SoLo Haze and claude.mayo.5 Facebook profiles listed Baltimore City as their current cities and the connections listed in the profiles included schools in Baltimore City and the Towson area. The profiles’ lists of friends included people who were either a friend or relative of Sample and Mayo. Moreover, the SoLo Haze Facebook profile name consists of a homophone of Sample’s first name “Hayes,” the “[email protected]” e-mail address registered for the SoLo Haze Facebook profile contains Sample’s last name, and the SoLo Haze profile had been identified as a friend on the claude.mayo.5 profile. Without more, the evidence indicating that the SoLo Haze profile belonged to Sample and the claude.mayo.5 profile belonged to Mayo indicates that Sample used the SoLo Haze profile to unfriend the -5- claude.mayo.5 profile.

There are, moreover, additional circumstances surrounding the unfriending that establish that a reasonable juror could find more likely than not that Sample was the person who unfriended the claude.mayo.5 profile. Those circumstances include the temporal proximity of the attempted armed robbery to the unfriending, and that Sample had a motive to distance himself from Mayo. Indicative of a motive to distance himself from Mayo, while speaking with detectives, Sample did not acknowledge being friends with Mayo despite surveillance video that showed Sample and Mayo walking together approximately fourteen minutes before the crime occurred and cellular telephone records that showed that there was a call made by Sample to Mayo approximately an hour before the crime. And, importantly, during the seventeen-day period after the attempted armed robbery, of 175 Facebook profiles listed as friends on the SoLo Haze Facebook profile, the claude.mayo.5 profile was the only one that was unfriended.

BACKGROUND Opposition to Facebook Evidence On July 24, 2017, Sample raised his opposition to the Facebook evidence during a pretrial hearing. During the hearing, Sample’s counsel advised that he had provided the circuit court with a copy of a letter in which he had informed the prosecutor that he planned to object to certain Facebook-related evidence based on foundation. Sample’s counsel stated that the letter included requests that the prosecutor provide additional information about the Facebook-related evidence and call an employee of Facebook as a witness at trial. The circuit court and Sample’s counsel discussed whether the request for the prosecutor to -6- call a Facebook employee as a witness at trial was timely.

Sample’s counsel contended that the Facebook-related evidence included irrelevant hearsay that was not covered by the business records certification that the prosecutor had provided. The circuit court denied Sample’s counsel’s request to require the State to call a Facebook witness at trial, finding that Sample’s counsel’s request was untimely, and not related to authenticating the Facebook-related evidence. Motion in Limine On August 3, 2017, Sample filed a “Motion in Limine to Exclude Facebook Evidence[,]” a memorandum in support of the motion, and Exhibits A through C. (Some capitalization omitted).

Exhibits A and B consist of numbered pages, all of which have the heading “Facebook Business Record[,]” and Exhibit C is a “Certificate of Authenticity of Domestic Records of Regularly Conducted Activity[.]” In the motion in limine and the memorandum in support thereof, Sample contended that the Facebook Business Records were inadmissible on multiple grounds. Among other things, Sample argued that the Certificate of Authenticity of Domestic Records of Regularly Conducted Activity did not sufficiently authenticate the Facebook Business Records because it did not establish who authored the Facebook Business Records’ contents. In the memorandum, as to authentication, Sample contended that the State would be unable to authenticate the Facebook Business Records using any of the methods for authenticating social media evidence that this Court set forth in Sublet, 442 Md. at 663 , 113 A.3d at 713 . Exhibit A – Facebook Business Records for the SoLo Haze Profile In Exhibit A, which pertains to the SoLo Haze profile, page 29 states in pertinent -7- part: Target 100009404335910 Generated 2015-12-17 19:40:24 UTC[4] Date Range 2015-12-01 00:00:00 UTC to 2015-12-17 23:59:59 UTC *** Name[5] First SoLo Middle Last Haze Registered [email protected] E[-]mail [email protected] Addresses Vanity Name *** Current City Baltimore, Maryland (112438218775062) Page 36 of Exhibit A states in pertinent part: Connections Zodiac Signs (1616634441885213) 4 “UTC” stands for “Coordinated Universal Time[,]” which is “the time scale [that is] maintained through the General Conference of Weights and Measures[.]” 15 U.S.C. § 261 (b).

At trial, Special Agent Mathew Wilde of the Federal Bureau of Investigation, an expert in the field of historical cellular record analysis, explained that certain businesses that “span[] multiple time zones[,]” such as Facebook and phone companies, use UTC as “a [] standard time.” The Court of Special Appeals and other courts have observed that UTC is five hours ahead of Eastern Standard Time (“EST”), and four hours ahead of Eastern Daylight Time (“EDT”). See, e.g., Holt v. State, 236 Md. App. 604 , 610 n.4, 182 A.3d 322 , 325 n.4 (2018); Airplanes of Boca, Inc. v. U.S. ex rel. Fed. Aviation Admin., 254 F. Supp. 2d 1304 , 1307 n.1 (S.D. Fla. 2003); Zinn v. United States, 835 F. Supp. 2d 1280 , 1287 & n.3 (S.D. Fla. 2011). Pursuant to federal law, each year, on the second Sunday of March, EST ends and EDT begins, and, on the first Sunday of November, EDT ends and EST begins.

See 15 U.S.C. § 260a(a). 5 “Facebook prompts new users to supply their name, e-mail address, . . . any high schools, colleges, or universities [that the user] attended[, and] the user’s current city[,]” among other things. Griffin, 419 Md. at 353 n.9, 19 A.3d at 421 n.9 (citation omitted). -8- Edmondson-Westside High School (230382833645773) Towson University (33627530544) Page 37 states in pertinent part: Removed User Claude Mayo (100009340905913) Friends Time 2015-12-09 02:36:22 UTC Removed By 100009404335910 Below the “Removed Friends” entry on page 37 is the word “Friends[.]” Starting next to that word, and continuing through page 40, there is a list of 174 names and ID numbers. Neither the name “Claude Mayo,” nor the ID number “100009340905913,” appears in the Friends list. The name “Skky DaLimit Lynn” is included in the Friends list.

Exhibit B – Facebook Business Records for the claude.mayo.5 Profile In Exhibit B, which pertains to the claude.mayo.5 profile, page 36 states in pertinent part: Target 100009340905913 Generated 2015-12-08 16:42:21 UTC *** Name First Claude Middle Last Mayo Registered +14438898253 E[-]mail Addresses Vanity Name claude.mayo.5 *** Current City Baltimore, Maryland (112438218775062) -9- Page 37 of Exhibit B states in pertinent part: IP Address[6] 2607:fb90:136e:b2a:0:9:3f63:4d01 Time 2015-12-08 16:06:42 UTC Action login_attempt_success IP Address 2607:fb90:136e:b2a:0:9:3f63:4d01 Time 2015-12-08 16:06:41 UTC Action login_bruteforce_protection_delta_not_vetted IP Address 2607:fb90:136e:b2a:0:9:3f63:4d01 Time 2015-12-08 16:06:41 UTC Action password_check IP Address 2607:fb90:136e:b2a:0:9:3f63:4d01 Time 2015-12-08 16:06:41UTC Action login_attempt The above language is the only instance in which Exhibit B includes the words “attempt,” “password,” and “protection.” Page 38 includes the word “Connections” near the following: “Patterson High School (Baltimore) (407178879346337)[.]” Below that, page 38 includes the word “Friends[.]” Starting next to that word, and continuing through page 41, there is a list of several names and ID numbers. “SoLo Haze (100009404335910)” and “Shantell Richardson” appear in that list. Page 18 states in pertinent part: Target 100009340905913 Generated 2015-12-17 19:40:23 UTC 6 The term “IP address” is derived from the phrase “Internet protocol[,]” and means “the numeric address of a computer on the Internet[.]” IP Address, Merriam-Webster, https://www.merriam-webster.com/dictionary/IP%20address [https://perma.cc/2C7G- TX4Q]. - 10 - Page 18 includes all of the above-quoted language on page 36, including the name “Claude Mayo,” the phone number 14438898253, the vanity name “claude.mayo.5,” and the reference to Baltimore City as the “Current City[.]” Like page 38, page 19 refers to Patterson High School in Baltimore as a “Connection[.]” Page 20 of Exhibit B includes the word “Friends[.]” Starting next to that word, and continuing through the page 23, there is a list of several names and ID numbers. Neither the name “SoLo Haze,” nor the ID number “100009404335910,” appears in that list. Page 31 includes a photograph of a male individual.

Below the photograph, pages 31 and 32 state in pertinent part: Title Damn rest easy to my lil cuz toot. Now u can live it up with KC. God wanted you, so I can’t be mad at that. I’m praying for ALL my family.

Gotta be strong for each other. *** Uploaded 2015-12-08 14:39:52 UTC Tags[7] Subject Id 100009340905913 Subject Name Claude Mayo *** Comments User Cash Capo (100008817046384) Text Damn smh I remember our Lakeland days Time 2015-12-08 15:12:16 UTC User Sharon Patterson (100000468265896) Text Sorry to hear of ya love one, sending prayer and may God give you strength 7 Facebook allows users to “upload photographs[] and . . . ‘tag’ their friends in the [photographs]. Tagging creates a link in the individual’s profile from the photograph, making users easily identifiable, even when the viewer of the photograph is not ‘friends’ with the photograph’s subjects.” Griffin, 419 Md. at 353 n.9, 19 A.3d at 421 n.9 (cleaned up). - 11 - Time 2015-12-08 18:39:53 UTC Page 25 of Exhibit B includes a different photograph of a male individual, with text superimposed on the photograph. Within the copy of the page that is part of the record, some of the text on the photograph is not visible because both the text and part of the photograph appear white. The visible text on the photograph reads: t Candle t Visual be held orrow F m 5:30pm On lafayette ave & Arlington @t The Park Below the photograph, pages 25 and 26 state in pertinent part: Title EVERYBODY PLEASE COME OUT TO SUPPORT MY BRO TELL YOUR FRIENDS *** Uploaded 2015-12-11 06:49:17 UTC Tags Comments User Jessica Yayosister Powell (100008547643889) Text R.I.P baby ily always and forever ...fly high baby Time 2015-12-11 07:44:43 UTC (Ellipsis in original).

Page 27 of Exhibit B includes two different photographs, each of which is of a male individual. Below the photographs, page 27 states in pertinent part: Title N[****] can’t sleep without thinking bout y’all two only god know how I feel thug n peace my ▯▯▯▯▯▯▯▯Angels - 12 - stay watching my back cuz #longlive #Toot #Kc[8] *** Uploaded 2015-12-14 18:01:50 UTC Tags Subject Id 100009340905913 Subject Name Claude Mayo Exhibit C – Certificate of Authenticity of Domestic Records of Regularly Conducted Activity Exhibit C is a Certificate of Authenticity of Domestic Records of Regularly Conducted Activity. The certificate states in its entirety: Under Federal Rule of Evidence 902(11),[9] I[,] Sarah Propeck , certify: 1. I am employed by Facebook, Inc., headquartered in Menlo Park, California.

I am a duly authorized custodian of records for Facebook[,] and am qualified to certify Facebook’s domestic records of regularly conducted activity. 2. I have reviewed the records produced by Facebook in this matter. The records include search results for basic subscriber [i]nformation, IP logs, messages, photo[graph]s, [and] other content and records for 100009404335910 and claude.mayo.5. 3. The records [that are] provided were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook.

The records were made at or near the time [that] the information was transmitted by the Facebook user[s]. 8 The three preceding terms are known as “hashtags.” A “hashtag” is “a word or phrase [that is] preceded by the symbol # that classifies or categorizes the accompanying text (such as a tweet)[.]” Hashtag, Merriam-Webster, https://www.merriam-webster.com/ dictionary/hashtag [https://perma.cc/M4ZP-ZJNC]. 9 Federal Rule of Evidence 902(11) states in pertinent part: “The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: . . . The original or a copy of a domestic record . . . , as shown by a certification of the custodian[.]” Like Federal Rule of Evidence 902(11), Maryland Rule 5-902(b)(1) provides for self-authentication of business records under certain circumstances. - 13 - 4. Under 28 U.S.C. § 1746 , I declare under penalty of perjury that the foregoing certification is true and correct to the best of my knowledge. Propeck’s name and signature, as well as the date November 3, 2016, appear below the body of the certificate.

Hearing on the Motion in Limine On August 7, 2017, the day that trial was scheduled to begin, Sample, his counsel, and the prosecutor appeared before the circuit court. The circuit court asked Sample’s counsel whether, in the motion in limine, she had made any arguments that were not already made at the motions hearing. Sample’s counsel clarified that, at the motions hearing, she had requested that the circuit court require the State to call as a witness the custodian of records from Facebook, whereas, in the motion in limine, she had requested that the circuit court require the State to call an expert witness. Sample’s counsel and the circuit court discussed whether Sample had waived the contentions in the motion in limine by not raising them at the motions hearing.

Sample’s counsel contended that the Facebook Business Records were inadmissible because no witness would testify that the records pertained to Sample. Sample’s counsel argued that this Court has indicated that extrinsic evidence is necessary to connect social media evidence with the person to whom the social media profile allegedly belongs. Sample’s counsel asserted that the State needed to prove that Sample had exclusive access to the SoLo Haze Facebook profile, and that he used it to unfriend the claude.mayo.5 Facebook profile. The prosecutor explained that the State would offer the Facebook Business Records - 14 - to prove that Sample and Mayo had been friends on Facebook, and that, after Mayo died, Sample unfriended him on Facebook.

The State argued that there were sufficient identifying characteristics in the Facebook Business Records, including the name “SoLo Haze,” the e-mail address with “mrsample” in it, and the “Connections” to Towson University, which is in Baltimore County, and Edmondson-Westside High School, which is in Baltimore City, for a reasonable juror to find that the SoLo Haze profile belonged to Sample. The circuit court indicated that it would review Griffin, 419 Md. 343 , 19 A.3d 415 , and Sublet, 442 Md. 632 , 113 A.3d 695 , and rule on the motion in limine the following morning. The next day, Sample, his counsel, and the prosecutor appeared before the circuit court, and the court denied the motion in limine. The circuit court concluded that Sample had waived the contention as to authentication by failing to raise it in a timely motion in limine.10 As to the merits, the circuit court held that a reasonable juror could find that the SoLo Haze Facebook profile and the claude.mayo.5 Facebook profile belonged to Sample and Mayo, respectively.

The circuit court addressed the Facebook Business Records regarding the SoLo Haze profile as follows: [The] first name [is “]SoLo[.” The] last name [is “]Haze[.” I]t actually provides an e[-]mail [address] of m[]rsample2015@[g]mail.com. *** 10 In the petition for a writ of certiorari, the State did not present a question as to whether the circuit court correctly concluded that Sample had waived the issue as to authentication. Accordingly, we do not address the matter, aside from observing that, to the extent that Sample may have waived the issue, we exercise our discretion under Maryland Rule 8-131(a) to reach the merits. - 15 - It gives the [“C]urrent [C]ity[”] as Baltimore. It also gives [“C]onnections[” to] Edmondson-Westside High School and Towson University. In these particular [Facebook Business R]ecords[ --] I note that the attempted robbery was December the 7th, [2015,] and the [Facebook Business R]ecords [regarding the SoLo Haze Facebook profile] indicate that [] Mayo was removed as a friend just a few days later.[11] Also[,] importantly, I note that . . .

Skky [DaLimit] Lynn is listed as a friend of [] Sample’s, and I was told yesterday that Skkyla Lynn was going to be called as a witness. I don’t know -- and her name [ha]s two Ks. We had a talk about that. So S-K-K-Y is obviously not at all common[,] and is a friend of [] Sample’s.

So[,] I find that there is sufficient proof from which a reasonable juror could find that [the Facebook Business Records regarding the SoLo Haze Facebook profile are] what [they] purport[] to be. The circuit court addressed the Facebook Business Records regarding the claude.mayo.5 Facebook profile as follows: [T]here aren’t that many people named Claude. I know two: Claude Debussy, the . . . composer. . . . And one other person.

There aren’t that many Claude Mayos. The [“C]onnection[”] is [to] Patterson High School. There are [photograph]s of Claude Mayo, and there are numerous posts about [his] passing, so it’s not a different Claude Mayo[,] because there’s only one Claude Mayo in this area who passed away at the time that all the posts were lodged regarding his passing. I also noted that in [] Mayo’s friend list is Shantell Richardson, and that is his mother.

And I know this because[,] last week[,] I signed a body attachment for her,[12] and[,] this morning[,] the deputies brought me word that [] Richardson had been picked up. So[,] there is [an] additional connection. It’s not just any Claude Mayo[. I]t’s not the wrong Claude Mayo[.

I]t’s the Claude Mayo connection who’s friends with his mother. So[,] this is -- there is certainly a foundation laid, and there is certainly 11 The circuit court stated that the unfriending occurred “just a few days later”—i.e., a few days after December 7, 2015. The Facebook Business Records regarding the SoLo Haze Facebook profile indicate that the unfriending occurred at 02:36 UTC on December 9, 2015. At trial, Special Agent Wilde testified that the Facebook Business Records regarding the SoLo Haze Facebook profile indicated that the unfriending occurred at 9:36 p.m.

EST on December 8, 2015. 12 According to a docket entry, on August 3, 2017, the circuit court issued a body attachment for Richardson. At trial, the State called Richardson as a witness. - 16 - the distinct possibility, rather strong possibility, that there’s -- there is proof that a reasonable juror can find that [the Facebook Business Records regarding the “claude.mayo.5” Facebook profile are] exactly what [they] purport[] to be. That doesn’t foreclose [Sample’s counsel] from arguing otherwise. The issue of ultimate reliability is left to the jury, so this is one of those times when it goes to the weight, not to the admissibility. *** I do understand, and [Griffin, 419 Md. at 352 , 19 A.3d at 421 , and Sublet, 442 Md. at 662 , 113 A.3d at 713 ,] talk about the fact, that anyone can create a fictitious [profile], and people can gain access to [other] people’s [profile]s, and[,] in the case of [the “claude.mayo.5” Facebook profile], somebody did gain access after his passing.

What’s interesting about that is [that] they tried to get in a couple times[,] and didn’t get in easily, so I think [that] that person went on -- [it’s] certainly reasonable to suggest [that] that person went online to send a message to all of [] Mayo’s friends to tell them about the vigil that [had been] scheduled. Trial At trial, as a witness for the State, Douglas Marcus testified that he owned Towson Wines and Spirits at 6 West Pennsylvania Avenue in Towson. On December 7, 2015, Marcus worked at the store by himself during the day. At 6:50 p.m., Marcus had finished counting cash from the cash register, and Samantha Twist, the store’s night manager, arrived.

Around that time, two individuals wearing black clothing, including black masks, came into the store. Both individuals pulled their masks down and pulled out revolvers. While testifying, Marcus referred to one of the men as Mayo, and referred to the other man as “the Defendant”—i.e., Sample. According to Marcus, Sample approached Twist, put an arm around her neck, and put his revolver to her neck.

Mayo came behind the counter, put his revolver to Marcus’s head, grabbed his left arm, and tried to pull him away from - 17 - the cash register. Marcus reached into a drawer, pulled out a revolver, and shot Mayo. Sample approached Marcus, who shot Mayo again. Sample and Mayo left the store.

The testimony of other State’s witnesses established that Mayo died of gunshot wounds outside of the Elks Lodge, which is next door to Towson Wines and Spirits. As a witness for the State, Detective Christopher Smith of the Baltimore County Police Department testified that, while investigating the attempted armed robbery, he and other detectives reviewed a recording from a surveillance camera at Z-Burger, a restaurant on Allegheny Avenue. The recording showed two individuals in the area of Z-Burger shortly before the attempted armed robbery. One of those two individuals was the person who had died outside of the Elks Lodge.

Detective Smith and other detectives determined that the decedent’s name was Claude Mayo. In the early morning hours of December 8, 2015, Detective Smith searched for any Facebook profiles associated with the name Claude Mayo. Detective Smith found one, which indicated that its user had connections to Baltimore.13 The Facebook profile included a photograph of an individual who looked “very similar, if not identical[,]” to Mayo. The Mayo Facebook profile was friends with a profile named “SoLo Haze[,]” and the SoLo Haze profile included a photograph of an individual whose physical characteristics were “very similar” to those of the individual who had been walking with Mayo in the area of Z-Burger.

Detective Smith observed that the e-mail address that was registered with the second Facebook profile was 13 At this point, Sample’s counsel raised the first of several objections, all of which the circuit court overruled. Sample’s counsel requested, and the circuit court granted, a continuing objection to the Facebook-related evidence. - 18 - “m[]rsample[]2015@[g]mail.com.” Detective Smith took screenshots of both Facebook profiles, and requested records related to both profiles from Facebook. Over Sample’s counsel’s objection, the circuit court admitted the screenshots of the Facebook profiles into evidence. Detective Smith testified that photographs in the Facebook Business Records concerning the claude.mayo.5 Facebook profile appeared to be photographs of Mayo.

Detective Smith testified that the Facebook Business Records of the SoLo Haze profile indicated that, on the night of December 8, 2015, that profile was used to unfriend the claude.mayo.5 profile.14 Detective Smith testified that, on the night of December 7, 2015 or the early morning hours of December 8, 2015, he identified Sample as a suspect in the attempted armed robbery. Detective Smith testified that, at the time, Sample’s status as a suspect was not yet public. Almost a week later, on December 14, 2015, a warrant for Sample’s arrest was served. On cross-examination, Detective Smith testified that he had seen a Facebook profile with the vanity name “claude.mayo.3[,]” and that the profile included photographs that might have looked similar to those on the claude.mayo.5 profile.

Detective Smith testified that there were other Facebook profiles under the name “Claude Mayo.” Detective Smith acknowledged that he did not request records from Facebook regarding the “claude.mayo.3” Facebook profile, or any Facebook profile under the name “Claude 14 Detective Smith testified that the unfriending occurred at 10:36 p.m. EST on December 8, 2015. Special Agent Wilde testified that the unfriending occurred at 9:36 p.m. EST on December 8, 2015. - 19 - Mayo” other than the claude.mayo.5 profile.

Detective Smith testified that the claude.mayo.5 profile contained postings that were made after Mayo died on December 7, 2015, and that meant that someone other than Mayo used the claude.mayo.5 profile after Mayo’s death. Detective Smith acknowledged that people can have access to profiles that they did not create and be Facebook friends with someone that they have never met. Detective Smith testified that there were other Facebook profiles under the name “SoLo Haze,” and that, other than what the Facebook Business Records show, he did not know whether Sample’s nickname was “SoLo Haze.” During Detective Smith’s redirect examination, the prosecutor elicited that the claude.mayo.5 profile was friends with a Facebook profile under the name “Shantell Richardson[,]” who is Mayo’s mother. The prosecutor elicited that, unlike the claude.mayo.5 profile—which included an image announcing a candlelight vigil—the “claude.mayo.3” Facebook profile did not include any references to Mayo’s death.

Detective Smith testified that he requested records from Facebook regarding the claude.mayo.5 profile, rather than the “claude.mayo.3” Facebook profile, because he believed that there was “a stronger connection” between Mayo and the claude.mayo.5 profile. The prosecutor elicited that, to Detective Smith’s knowledge, the “[m]r[s][email protected]” e-mail address was registered with only one Facebook profile under the name “SoLo Haze[.]” The prosecutor elicited that the Facebook Business Records indicated that the claude.mayo.5 profile was the only one unfriended from the SoLo Haze profile during the dates to which the Facebook Business Records pertained. As a witness for the State, Detective Robert Caskey of the Baltimore County Police - 20 - Department testified that, on December 14, 2015, he and Detective Smith met with Sample in an interview room at a police station. Detective Caskey acknowledged that no recording of his and Detective Smith’s interview of Sample was available.

Detective Caskey testified that Sample waived his Miranda rights and agreed to provide a statement. One of the detectives asked Sample whether he was in the Towson area during the time of the attempted armed robbery. Sample responded in the negative, and said that, at the time, he was in Baltimore City at the residence of Skkyla Lynn, who is the mother of his child. Detective Caskey asked Sample whether he had known Mayo, and he responded in the negative.

As a witness for the State, Detective Gary Childs of the Baltimore County Police Department testified that, on December 7, 2015, at approximately 10:30 or 11 p.m., he learned that a woman had been calling several hospitals and asking about her son, who she believed had been involved in the attempted armed robbery. Detective Childs learned that the woman was Richardson, and that her son was Mayo. Detective Childs met with Richardson, and, before informing her of Mayo’s death, asked her what phone numbers Mayo had used. Richardson provided the number 443-707-6420.

Detective Childs also spoke to a man named Wilkins, who knew Sample and provided the phone number 443- 403-9522. Detective Childs sought and received phone records for the two numbers. The phone records, which the circuit court admitted into evidence, indicated that, on December 7, 2015, in the afternoon and early evening, the two phone numbers called each other several times. As a witness for the State, Special Agent Mathew Wilde of the Federal Bureau of - 21 - Investigation testified that he was a member of its Cellular Analysis Survey Team.

The circuit court admitted Special Agent Wilde as an expert in the field of historical cellular record analysis. Special Agent Wilde testified that he analyzed cell phone records for the number 443-403-9522 to determine the location of the cell phone on December 7, 2015. Special Agent Wilde explained that he could determine the location of the cell phone only at the times when it made or took calls. Special Agent Wilde testified that, on December 7, 2015, at 5:22 p.m., the cell phone was used to call 443-707-6420 from the area of Hollins Market, and that was the last contact between the two numbers.

At 6:04 p.m., and at 6:21 p.m., the cell phone was in the area of 6 West Pennsylvania Avenue in Towson. During closing argument, Sample’s counsel addressed the Facebook-related evidence as follows: The Facebook[-related] evidence was fascinating, and I submit that those records just aren’t reliable. It’s the nature of the medium itself and who can post information, who can open an account, who can take down information. It’s not that secure, and I think it came out that . . . anybody could open up a Facebook page under any name[,] and there is no checkup, just none.

Could go so far as to [P]hoto[]shop[15] someone’s face on[]to your body and post that picture on [Facebook], and there is no check on that. So, under those circumstances, unless they can tell you specifically who, when[,] and what device was used, and tie that device to a specific individual at a certain time, they’re speculating. The lack of reliability alone should raise a reasonable doubt. The jury found Sample guilty of attempted robbery with a dangerous weapon, first- 15 When used as a verb, “Photoshop” means “to alter (a digital image) with Photoshop software or other image-editing software[,] especially in a way that distorts reality (as for deliberately deceptive purposes)[.]” Photoshop, Merriam-Webster, https:// www.merriam-webster.com/dictionary/photoshop [https://perma.cc/3K6E-6MKD]. - 22 - degree assault, possession of a handgun after conviction of a disqualifying crime, and two counts of use of a handgun in the commission of a felony or crime of violence.

The circuit court sentenced Sample to twenty years of imprisonment for attempted robbery with a dangerous weapon, five years concurrent (without the possibility of parole) for one count of use of a firearm in the commission of a crime of violence, twenty-five years consecutive for first-degree assault, five years concurrent (without the possibility of parole) for the other count of use of a firearm in the commission of a crime of violence, and five years consecutive for possession of a firearm after conviction of a disqualifying crime. Opinion of the Court of Special Appeals Sample appealed. On July 31, 2019, the Court of Special Appeals reversed Sample’s convictions and remanded for a new trial. See Sample, 2019 WL 3451812 , at ⁵.

The Court of Special Appeals held that the circuit court abused its discretion in admitting information related to the Facebook Business Records because there was insufficient evidence to show that Sample used the SoLo Haze Facebook profile to unfriend the claude.mayo.5 Facebook profile. See id. at ⁴. The Court of Special Appeals reasoned: Although there may have been enough evidence for a juror to conclude that the [SoLo Haze Facebook profile] was created by [Sample], the State failed to proffer any evidence to show that [Sample unfriended] the [claude.mayo.5 Facebook profile]. Unlike the consolidated cases in Sublet, [ 442 Md. 632 , 113 A.3d 695 ,] there was effectively no evidence that [Sample] took the action at issue.

The State stresses that relatively few people would have known of the shooting at the time [the ]So[L]o Haze [Facebook profile un]friended [the c]laude[.m]ayo[.]5[ Facebook profile]. There is, however, insufficient evidence for a reasonable juror to conclude that [Sample] was the person who took that action. Another person within the same social circle could have heard of the shooting in the more than twenty-four hours after the shooting, accessed the So[L]o Haze [Facebook profile], and removed Mayo as a friend - 23 - of the profile. That possibility is demonstrated by the fact that someone logged into the [c]laude[.m]ayo[.]5 profile after Mayo’s death and posted a