A trial judge should not have allowed an unauthenticated Instagram message that a prosecutor called "practically a confession" to be seen by jurors at the 2017 rape trial of Robert Glenn Brown, the Arkansas Court of Appeals said Wednesday in tossing Brown's conviction and 25-year sentence.
Brown, 45, of North Little Rock was convicted in 2017 in Pulaski County Circuit Court of two counts of rape involving a Little Rock girl who was 12 years old in 2014, when prosecutors said the incident occurred.
The discovery of the message in October 2016 by the girl's mother led to the woman learning that her daughter had been raped. The girl had received the message about a week earlier through the photo-sharing service. In it, Instagram user robbm00 said he was "sorry about that" when the girl mentioned rape.
In response, the girl replied, "All you ever do is apologize. I don't want to hear it anymore I'm done with u," adding that she had twice tried to kill herself.
"Well honey I love you," robbm00 replied.
"Ur love makes me sick," the girl answered."Please just leave me alone."
The sender responded, "Just go kill you self. U would be better off dead. U have nothing left to live for. Go ahead end what no one cares about. I bet no one would even notice you were gone. I hope you die b***h."
In a pretrial hearing before Circuit Judge Barry Sims, defense attorney Matt McKay said jurors shouldn't be allowed to see the message because authorities had no solid proof that his client sent it. Anyone could have created the Instagram account and sent the message, McKay argued.
Brown testified that he didn't send the message, while deputy prosecutor Melissa Brown argued that the girl's testimony was sufficient to qualify the message as evidence. Melissa Brown said prosecutors considered the message practically a confession, telling the judge that whoever was communicating with the girl knew she'd been raped before she told her mother or went to the police.
The girl testified in the pretrial hearing that she had first exchanged Instagram messages with Robert Brown in 2014. She said she recognized the message in question as coming from him, even though it came from a different account than he had used before. Both accounts, however, had the same profile photograph of an Indian baby and the same slogan, "Family sticks up for family," the girl said.
The Court of Appeals opinion, written by Judge Kenneth Hixson, said the prosecutor had explained that Facebook, which owns Instagram, provided an Internet Protocol address and an email address associated with the Instagram account, but the Internet provider for that IP address, Comcast, doesn't keep records past 180 days. The prosecutor acknowledged that meant there was no electronic evidence linking the Instagram account to Brown, but argued that there was sufficient authentication, nevertheless, because of the similarities between the 2016 profile and the 2014 profile that the girl said she had used previously to communicate with Brown.
The girl admitted that based on her familiarity with the platform, it would be easy for someone to create an account similar to another if the person had access to the account name, photo and message, the opinion noted. It said she also testified that she hadn't told anyone about the incident and was the first one to raise the issue of rape in the 2016 message thread.
Brown's wife testified that his only Instagram account had a different name and that Comcast didn't provide service in Texas, where they lived. This backed up Brown's claim that he had only one Instagram account, didn't create the other account and never sent the 2016 messages. He denied ever inappropriately touching the girl and said she had been angry at him the last time he saw her.
The appeals court noted, "Authentication of a document is a condition precedent to admissibility." The opinion noted that under Rule 901 of the Arkansas Rules of Evidence, the testimony of a witness who has knowledge about a situation is insufficient to authenticate evidence, but said the Arkansas Supreme Court has allowed "sufficient circumstantial evidence" to corroborate a sender's identity.
In this case, the appellate judges said, "We cannot say that the state provided sufficient circumstantial evidence" that Brown sent or wrote the 2016 message.
Signing on to the majority opinion were judges Robert J. Gladwin, David M. Glover and Larry Vaught. But in a dissent joined by Chief Judge Rita Gruber, Judge Waymond Brown wrote, "Authentication requirements are satisfied if the circuit court, in its discretion, concludes that the evidence presented is genuine and, in reasonable probability, has not been tampered with or altered in any significant manner."
The dissenters noted that Brown had also acknowledged that he had a business named "Matoskah Tattoos," and that the Matoskah name "is associated to any Indian boy."
The dissent added that at trial, "the child victim was extensively cross-examined. ... I can assure the majority that those 12 jurors -- sitting in the courtroom and hearing the testimony -- were in a better position to determine the weight to be given to all testimony and evidence before them."
Metro on 03/07/2019