Topics: Appellate Review

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STATE v. ESPIRITU, 117 Hawai'i 127, 176 P.3d 885 (2008)
Best Evidence, Hearsay, Refreshing Recollection
attempted murder. The ICA affirmed.


(1) victim's testimony about text messages received from defendant was admissible under hearsay exception for party admissions;

(2) original text messages were not required in order for victim to testify regarding text messages;

(3) original text messages that defendant sent to victim were not lost or destroyed due to the bad faith

(4) police report describing text messages victim received from defendant constituted hearsay;

(5) victim was entitled to use police report to refresh memory regarding text messages;
ACOBA,: ..we affirm the ICA judgment [on the issue of text messages]…
[The defendant and complainant once had a dating/sexual relationship. While the complainant was having sex with another man, the defendant/petitioner entered the woman’s house, struggled with the other man, put a gun to the face of the complainant, and then shot the complainant. The defendant did not testify at his trial.]
We hold that (1) the ICA did not err in ruling that the court acted in accordance with the HRE, including the hearsay and best evidence rules, in allowing the Complainant to review a police report describing the four text messages allegedly sent to her by Petitioner and to testify about those messages, …
Following the shooting, Detective Chad Viela interviewed [the Complainant] ... [who] showed Detective Viela four text messages from her cell phone that she had allegedly received from [Petitioner] [in the week before the shooting].
Defense counsel contended that the Complainant's testimony regarding the text messages would be “double hearsay” because the messages were copied onto note paper that was destroyed and the messages were copied by Detective Viela rather than by the Complainant herself. Respondent argued that the contents of the text message[s] were “not hearsay because [they are] statement[s] from the [Petitioner]” and therefore fit within the hearsay exception that allows the introduction into evidence of “[a]ny statement by the party opponent.”
Respondent also argued that the Complainant was allowed to testify on the messages after reviewing the police report because “[w]hat was copied on the [report] is going to be used to refresh her recollection.” Defense counsel countered Respondent's points by maintaining that the hearsay exception was inapplicable because “the messages may have come from [Petitioner's] cell phone, but that doesn't prove who they are from,” and, thus, the text messages were “still hearsay.” Counsel also declared that the Complainant's memory would not be refreshed as to the contents of the messages when she received them because “what she's going to have a memory of is reading the report, which is still hearsay.”
The court stated that the Complainant's testimony was not the best evidence with regard to the text messages as “the best evidence probably would have been photographs” of the actual messages on the cell phone. Nonetheless, the court permitted the Complainant to testify on the content of the text messages, reasoning that the issues raised by defense counsel would “go to the weight” of the testimony.
[The text messages were:

1) “The true face shows all the guys and girls were right.”

2) “I'm tired of being the sucker. What goes around comes around.”

3) “You should have talked to me, but you're too pig-headed for our kind. There's a new message going out to the locals.”

4) “I have to say I'm so, so sorry.”

a text message is hearsay if offered to prove the truth of the matter asserted.

However, Petitioner concedes that the actual text messages would arguably be admissible as an exception to the hearsay rule as an admission by a party-opponent.
The text messages show Petitioner's history of threats against the Complainant and, hence, were admissions by a party-opponent.
If evidence is hearsay, then testimony about the evidence is also hearsay. Correspondingly, if evidence is hearsay admissible under an exception to the rule against hearsay, then testimony about such evidence is admissible. See People v. Taylor 117 A.D.2d 829, 499 N.Y.S.2d 151 (1986) (holding that victim's writing in his own blood of attacker's name was hearsay admissible under the exceptions for dying declarations and excited utterances and therefore, testimony from witnesses regarding the writing was admissible). Thus, the Complainant's testimony about the text messages is admissible because the text messages themselves would be admissible under the exception for party admissions.
Petitioner also argues that the court committed error in allowing the Complainant to testify “because her testimony neither constituted the original nor a duplicate of the text message” as required by HRE Rule 1002 (1993). Petitioner contends that the original text messages for purposes of HRE Rule 1002“would have consisted of the cell phone itself with the saved messages or a printout of the messages.” Respondent counters that (1) HRE 1002 is inapplicable in this case because a text message does not qualify as a writing, recording, or photograph; (2) there was no evidence that it was possible to obtain a printout of the messages; (3) that no photographs were taken of the messages does not preclude the admission of the Complainant's testimony about the messages; (4) even if HRE Rule 1002 is applicable here, HRE Rule 1004 (1993) allows the admission of other evidence in place of the original where the original is lost or destroyed; and (5) Petitioner failed to raise an objection to the Complainant's testimony based on HRE Rule 1002 and, thus, waived the right to raise an argument based on HRE Rule 1002.
Contrary to Respondent's assertion, a text message is a writing because it consists of letters, words, or numbers set down by mechanical or electronic recording, or other form of data compilation. Although neither party makes this assertion, text messages received on cell phones appear akin to messages received on computers and email for purposes of HRE Rule 1002. See Laughner v. State, 769 N.E.2d 1147, 1159 (Ind.Ct.App.2002) (holding that text messages sent between computers through an internet chat room were subject to the original writing rule and a printout of the messages was an original for purposes of the rule). Thus, HRE Rule 1002 which requires an original in order to prove the content of a writing is applicable unless an exception under the HRE or a statute provides otherwise.
Although HRE Rule 1002 would ordinarily preclude the admission of testimony about the text messages because such testimony is not an original, the testimony here is admissible because HRE Rule 1004 applies to the text messages such that other evidence may be admitted to prove the content of the text messages.

The Complainant no longer had the actual text messages because the Complainant no longer had the cell phone or the cell phone service from Verizon through which she received the messages. No other original version of the text messages appear to have existed because there is no indication from the record that the text messages were ever printed out, nor is it clear that it was possible for the messages to be printed from the phone. Thus, for purposes of HRE Rule 1004, the original text messages were “lost or destroyed.”
Petitioner argues that “the original writing was lost or destroyed due to the bad faith of the State of Hawai‘i.” However, there is no evidence that Respondent exercised bad faith that led to the loss of the cell phone, which Petitioner contends was the “original” for purposes of HRE Rule 1002. Bad faith cannot reasonably be inferred because the Complainant failed to preserve text messages for over two years on a cell phone for which she discontinued service. Similarly, bad faith cannot be inferred because the text messages were not printed out when there is no indication that such a printout was even possible.
Indeed, courts agree that HRE Rule 1004(1) is “particularly suited” to electronic evidence “[g]iven the myriad ways that electronic records may be deleted, lost as a result of system malfunctions, purged as a result of routine electronic records management software (such as the automatic deletion of e-mail after a set time period) or otherwise unavailable....” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 580   (D.Md.2007). See also King v. Kirkland's Stores, Inc., No. 2:04-cv-1055-MEF, 2006 WL 2239203, at *5 (D.Ala. Aug. 4, 2006) (unpublished decision) (holding that plaintiff's testimony regarding the content of an e-mail from defendant was admissible although plaintiff argued only that a copy of the e-mail, as opposed to the original or sole copy, was in the possession of the defendant);, Inc. v. Spry, No. B160126, 2003 WL 723297, at 7 (Cal.App. Mar. 4, 2003) (unpublished opinion) (stating that the exception to the original writing rule permitting the substitution of secondary evidence would apply in light of the “tenuous and ethereal nature of writings posted in Internet chat rooms and message boards”).
[I]t appears that the cell phone containing the text messages is unavailable. The Complainant testified that she changed cell phone service providers since the time of the accident. The plain language of HRE Rule 1004 states that an original or duplicate is not required to prove the contents of a writing or recording so long as the originals are lost or destroyed and such loss or destruction was not due to the bad faith of the proponent of the evidence. There is no requirement that the proponent must show that it was impossible or difficult to download or print out the writing at the time that it existed.
Respondent contends that Petitioner may not argue against the admission of the Complainant's testimony under HRE Rule 1002 as Petitioner did not raise an objection under HRE Rule 1002 at trial. Petitioner counters that the court itself acknowledged that the Complainant's testimony was not the best evidence and that it had a “running objection” to the entire line of questioning about the text messages.
Respondent correctly states the law that “failure to properly object to the introduction of evidence in violation of the original writing rule likely will result in a waiver of the error on appeal.” Lorraine, 241 F.R.D. at 579 However, because the Complainant's testimony regarding the text messages was admissible under HRE Rule 1004 as described above, it is not necessary to resolve the question of whether Petitioner did raise an objection under HRE Rule 1002.
The crux of Petitioner's argument against the admission of the Complainant's testimony is that the Complainant's testimony was inadmissible because it consisted of the Complainant reading excerpts from a police report typed by a clerk where the reports were based on notes copied by the police officer who interviewed the Complainant and who examined the actual text messages. Respondent does not make any argument that the police report, typed by a clerk from notes made by the officer who observed the actual messages, was not hearsay or that this report was hearsay admissible under an exception to the rule against hearsay.
Preliminarily, Petitioner is correct that the police report was hearsay. The police report did not qualify under the exception for past recollection recorded under HRE 802.1(4)
The police report describing the text messages is hearsay and is inadmissible under the exceptions to the hearsay rule for past recollections recorded under HRE 802.1(4) and public records and reports under HRE 803(b)(8). Respondent has not argued that the police report is not hearsay or is hearsay admissible under an exception to the rule against hearsay. Thus, the police report itself was inadmissible hearsay and recitation of the report by the Complainant would therefore be inadmissible hearsay.
Although recitation of the police report by the Complainant would be improper, Petitioner and Respondent both agree that the Complainant could testify about the text messages after viewing the police report if the report was used to refresh her recollection about the text messages she allegedly received from Petitioner. [I]t appears that the Complainant did remember the text messages and that the Complainant used the report to refresh her recollection. The evidence does not suggest that the Complainant's memory was not refreshed as to the language of the messages or that the Complainant was merely reading from the report.
… that the Complainant could recall substantial details about the messages prior to reading the report suggests that the Complainant in fact possessed a memory of the messages that only needed refreshment via the report.
Based on the foregoing, we affirm … the ICA's holding that Complainant's testimony on the text messages was properly admitted…

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