Text message punctures murderer’s defense
With the explosion of text messaging in society, you’d think that by now the courts would have provided attorneys with some fairly clear guidance on getting text messages introduced as evidence.
Surprisingly, the case law is relatively sparse.
So let’s all applaud this week’s effort by the Arizona Court of Appeals to shed some light on the subject in a murder case involving a defendant who pleaded that his girlfriend’s death was an accident.
The murder of C
Marcus Ladale Damper. Now there’s a guy in a world of trouble.
What we know is that C – Damper’s live-in girlfriend – was killed in the late morning of January 21, 2008, as she lay in bed in the couple’s Glendale, Ariz., apartment. She died from a gunshot to the head fired from a distance of approximately two to three feet.
According to Damper, it was all a horrendous accident.
He claims that he picked up a .45-caliber pistol from atop his stereo in order to show C just how he planned to defend himself should violence break out at a Martin Luther King, Jr. Day event the two planned to attend.
Apparently there was the potential for violence because of bad blood between the happy couple and others expected to attend the event. Damper wanted C to know that he could take care of himself.
Naturally, Damper thought the gun wasn’t loaded.
Easy mistake to make.
After all, we’re only talking about a machine that spews death at the pull of a trigger.
Why not just assume it’s unloaded until proven otherwise?
Unfortunately for C, there was a bullet in the chamber.
Bang! The gun “accidentally” goes off and C has a hole in her head. Things happen.
Now, when “things” happen, you and I are inclined to grab a phone and call 911 so that those who had the misfortune of being around at the time can get some medical attention.
But Damper was apparently just too stunned by the tragic accident, so he took off, only to turn himself in to police five days later.
To Damper’s surprise, police didn’t accept at face value his explanation that C’s death had been accidental.
C’s last text message
Apart from the fleeing-the-scene-without-calling-for-help part, there were certain other parts of Damper’s story that just didn’t seem to add up.
For one thing, in addition to the lead in C’s head, a forensic pathologist for the state testified that Damper’s girlfriend suffered recent bruising to her neck and exhibited “hemorrhages in the membranes over the inside of the eyelids and eyeballs” consistent with “compression of the neck by an external force, maybe a hand or fingertips.”
That evidence fit neatly with an allegation that Damper and C had been involved in a prior domestic violence incident.
And then there was C’s last text message to a friend.
Throughout the morning of the shooting, C had been exchanging text messages with B.
At 11:21 am, shortly before C’s time of death, B received a last message from C.
The message, a mixture of Spanish and texting lingo, was later deciphered as C saying, “Can you come over? Me and Marcus are fighting and I have no gas.”
Taken with the other evidence, it wasn’t exactly a great leap for a jury to come to the conclusion that C’s death wasn’t exactly accidental.
Putting two and two together, the jury found Damper guilty of second-degree murder. Eighteen years in prison was what the trial judge decided fit the crime.
Text message inadmissible?
Since C’s text message played a large part in unraveling Damper’s story, it was the focus of his attempt to get his conviction overturned.
On appeal, Damper waged a three-pronged attack on the admission of the text message at trial.
The Arizona Court of Appeals on Wednesday rejected each of Damper’s arguments.
Damper first contended that the admission of the text message violated his right to confront witnesses under the Sixth Amendment.
According to Damper, in light of the previous domestic violence incident, the text message was testimonial and inadmissible under Crawford v. Washington because it was intended as a record of the argument C and Damper had the morning of the shooting.
The court responded that “[w]hether it was an urgent cry for help or a more casual request to a friend, nothing in the message or its context suggests C intended or believed it might later be used in a prosecution or at a trial.”
It also rejected the broader notion that text messages are by nature testimonial.
“Like any other form of communication, a text message may be testimonial or non-testimonial, depending upon the circumstances and purpose for which it is made,” the court explained. “Because the content and circumstances of the text at issue here demonstrate C did not send it for ‘the purpose of establishing or proving some fact,’ the message was non-testimonial.”
Next, the court found without merit Damper’s claim that the text message was inadmissible hearsay, deciding that it fell within the present-sense impression exception to the rule.
The court observed that the “text message at issue described an event, an argument between C and Damper, perceived by the purported speaker, C, as evidenced by the statement, ‘Me and Marcus are fighting.’ Additionally, the speaker’s use of the present tense, ‘are fighting,’ suggests she sent the message either during her fight with Damper or shortly thereafter.”
Lastly, the court made short-shrift of Damper’s argument that the text message could not be authenticated and lacked sufficient foundation because the State did not prove it was C who sent the message.
The court noted that C’s cell phone was found on the bed beside her body and there was no evidence that anyone other than C used the phone that morning.
Bolstering the conclusion that C was the sender of the message was B’s testimony.
The court recounted that at trial “B testified she and C often communicated with text messages. She explained that she had saved C’s cell-phone number in her own cell phone, denominated by a nickname, and that when the text message at issue arrived the morning of the shooting, her phone displayed that nickname as the sender of the message.” (Arizona v. Damper)
- Pat Murphy
