                                                                                          02/07/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                March 20, 2019 Session

           STATE OF TENNESSEE v. JAVON JOLARRY SPIVEY

                Appeal from the Criminal Court for Davidson County
                  No. 2017-C-1866 Cheryl A. Blackburn, Judge
                     ___________________________________

                           No. M2018-00263-CCA-R3-CD
                       ___________________________________


A Davidson County Criminal Court Jury convicted the Appellant, Javon Jolarry Spivey,
of first degree premeditated murder, felony murder, attempted first degree murder,
especially aggravated burglary, employment of a firearm during the commission of or
attempt to commit a dangerous felony, and robbery. After merging the first degree
premeditated murder and felony murder convictions, the trial court imposed a total
effective sentence of life plus thirty-seven years. On appeal, the Appellant contends that
the trial court erred by allowing the State to introduce a video and still photograph of him
the police found on YouTube without proper authentication. Upon review, we affirm the
judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.

Mark C. Scruggs, Nashville, Tennessee, for the Appellant, Javon Jolarry Spivey.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Megan King
and Byron Pugh, Assistant District Attorneys General, for the Appellee, State of
Tennessee.


                                        OPINION

                                 I. Factual Background
       The Appellant’s convictions stemmed from a break-in at a residence, during which
one occupant was killed and another was seriously injured. Immediately following the
break-in, a debit card stolen during the burglary was used at a local automatic teller
machine (ATM), but the perpetrator was unable to withdraw money because the account
had insufficient funds. Shortly thereafter, a man was assaulted and robbed by an
individual identified as the Appellant at another ATM in the area.

       At trial, Anne Peterson, a retired registered nurse, testified that on August 30,
2014, she was living with her son, Charles Carl Peterson, IV, in his house on Ascot Drive
in Antioch. The house had four bedrooms and two bathrooms upstairs and a bonus room
over the garage. Between 3:00 and 4:00 a.m., she was watching television in her room,
and the lights and the television in her room suddenly “went black.” She walked down
the hall to her son’s bedroom and woke him. He got up, turned on the lamp next to his
bed, and went downstairs to check the circuit breaker. Immediately after he descended
the stairs, she heard two gunshots in rapid succession. Ms. Peterson was terrified and
walked to the doorway of her bedroom. Ten to fifteen seconds later, two men ran
upstairs toward her. The taller man, whom she identified as the Appellant, said, “[D]on’t
expect no f[*****]g help from your husband because I done shot him dead.”

       Ms. Peterson said that the hall was well-lit and that she could see the perpetrators
clearly. The Appellant was approximately 5’11” to 6’ tall, and he was slim. He was
wearing a short-sleeved white t-shirt, blue jeans, gray athletic shoes, and a camouflage
baseball cap. Ms. Peterson said that the Appellant “had chin-length dreadlocks” that
appeared to have been tinted and “had a little bit of Mr. Brown and a little bit of blonde in
them.” The Appellant had a small black handgun with a red laser light on top of it. The
other man was shorter and stockier than the Appellant and had paler skin. She estimated
that he was approximately 5’10” tall. Ms. Peterson did not recall what the second man
was wearing.

       Ms. Peterson said that when the Appellant reached the top of the stairs, he hit her
on the head two or three times with the butt of the gun then “shot the end of [her] right
great toe off,” which caused her to bleed. Ms. Peterson was “[t]errified.” The Appellant
grabbed her arms and threw her hard against the walls. He demanded her driver’s
license, debit card, money, and drugs.

       The Appellant gripped Ms. Peterson’s arms and dragged her into her bedroom. He
took money, her driver’s license, Regions Bank debit card, and TJ Maxx credit card from
her wallet. Ms. Peterson said that she had written her personal identification number
(PIN) on the back of the debit card. The Appellant took expired prescription medication
that was stored inside Ms. Peterson’s bedside table. He then searched all of the drawers
in her bedroom.
                                            -2-
        Ms. Peterson said that when the Appellant finished searching her bedroom, he
dragged her to her son’s bedroom where the other man was. The other man had put the
television face-down on her son’s bed. Two pieces of computer equipment had been
taken from her son’s study and placed on her son’s bedroom floor. Both men searched
all of the drawers in her son’s bedroom.

       Ms. Peterson said that she had a “simple flip phone” and that she kept a flashlight
in her bedside table. During the fifteen minutes the men were in the house, one or both of
them used the flashlight. As the incident transpired, she heard the men “mumble[] some
things” to each other, but she could not understand what they said. She did not see the
other man with a gun.

       Ms. Peterson feared the Appellant would kill her because he had told her “he was
going to blow [her] f[*****]g brains out.” When she had the chance to escape, she ran
down the stairs, out the front door, and directly across the street to Mary Ann and Charlie
Loffmin’s house. She hid behind some shrubs then went onto the porch and rang the
doorbell. She saw the Appellant approaching her, and she ran toward the Loffmins’ back
fence and yelled for Mrs. Loffmin because she knew their bedroom was located at the
back of the house. The Appellant caught Ms. Peterson, knocked her down, and shot her
once in the right arm and three times in the back of her head. The Appellant stomped her
between her shoulder blades, called her a “f[*****]g white honkey b[***]h,” and walked
off, “basically [leaving her] for dead.”

        Ms. Peterson “played dead” until the Appellant walked across the street to her
house. Ms. Peterson alternately crawled and walked until she reached the Loffmins’
front door. She rang the doorbell and yelled. Mr. Loffmin told her to go to the window
because he was afraid someone was behind her. After confirming that she was alone, the
Loffmins let her inside their home, and Mrs. Loffmin called 911. Ms. Peterson spoke
with the 911 operator and gave the same description of the Appellant that she gave in
court. Regarding her condition, Ms. Peterson said, “In the beginning it was, you know, I
knew I was bleeding and I felt scared, you know, but okay, and towards the end my face,
I started going numb in my head and down my side.” She was in a lot of pain and was
taken to Vanderbilt Hospital. Ms. Peterson estimated that from the time she saw the men
to the time the Appellant left her in the Loffmins’ yard, approximately fifteen to twenty
minutes had elapsed.

       Ms. Peterson said that a detective came to the hospital to interview her. She told
the detective what had transpired and described the Appellant. The detective showed her
a lineup, but she was unable to identify anyone.

                                           -3-
       Ms. Peterson said that after she left the hospital, she went to her brother’s house in
Fayetteville. Approximately one week later, Detective Wall came to the house and
showed her a different lineup. Ms. Peterson identified the Appellant from the lineup and
said that she was “100 percent” confident of her identification. She said, “I will never
forget his face. . . . When someone is this close to you and is pointing a gun with a red
light on it next to your head and is facing you right in your face and telling . . . you that
they are going to kill you, you can’t forget that.” Ms. Peterson said that she did not know
Terry Brown and had not discussed her identification of the Appellant with him.

       Ms. Peterson said that her son’s house had a door on the side of the garage. She
normally locked the door but could not recall if the door was locked on the night of the
offense.

       Ms. Peterson said that she had scars from the gunshots to her head. She was
hospitalized for two or three days. She did not need surgery but had to refrain from
moving her mouth for approximately six weeks. She said that the Appellant had
“completely shot away the anterior ligament on [her] big toe” and that after the shooting,
her toe was occasionally swollen, numb, and uncomfortable. Ms. Peterson said that the
Appellant had injured her right arm by gripping it too tightly. Additionally, when the
Appellant stomped her back, he fractured her thoracic vertebrae, and her movements
were restricted for three months due to the injury.

       On cross-examination, Ms. Peterson said that she had a vivid memory of the
incident. She did not recall telling a detective that the lights never came back on inside
the house and asserted that the statement was not correct. She explained that if she made
such a statement, it must have been shortly after she was seriously injured. She
maintained that the Appellant was between 5’10” and 6’ tall and did not recall telling the
detective that he was between 6’2” and 6’4”. Ms. Peterson was shown a transcript of the
preliminary hearing but did not recall testifying that the Appellant could not have touched
the television that was in her son’s bedroom and that she did not know why she would
have said such a thing.

       On redirect examination, Ms. Peterson said that to the best of her recollection, she
saw the Appellant touch the television. After listening to the relevant part of the
recording of the preliminary hearing, she asserted that the transcript must have been
incorrect because she meant to say the Appellant “could have” touched the television.

        Mary Ann Loffmin testified that she and her husband Charles lived across the
street from the Petersons. The Loffmins had a good relationship with the Petersons. Mrs.
Loffmin knew Ms. Peterson had medical issues that kept her up at night. On the night of
the offense, Mrs. Loffmin was awakened around 4:00 a.m. She said she heard her
                                            -4-
“doorbell ringing, I mean, pop, pop, pop, pop, pop.” Mrs. Loffmin thought children were
playing a prank. She and Mr. Loffmin got out of bed, and Mrs. Loffmin grabbed the
telephone. Mr. Loffmin grabbed his gun, and they went to investigate. Mrs. Loffmin
looked out a front window and the peephole on the front door, and Mr. Loffmin “went
upstairs and got a better look from the front top.” Mrs. Loffmin noticed that lights were
on inside the Petersons’ house. Mrs. Loffmin started to call Ms. Peterson because she
thought children were playing pranks; however, when Mrs. Loffmin heard two gunshots,
she called 911 instead.

       Afterward, Ms. Peterson banged on the Loffmins’ door then came to their
window. Ms. Peterson said that she had been shot and asked to come in the house. Mrs.
Loffmin looked out the window and saw that Ms. Peterson was holding her jaw with one
hand and holding her shoulder with the other hand. Ms. Peterson looked “bad”; she was
bleeding and disheveled. Mrs. Loffmin opened the door, allowed Ms. Peterson inside the
house, and placed another call to 911. Mrs. Loffmin had Ms. Peterson sit and put towels
around her back and neck. Ms. Peterson continued to hold her face and shoulder. Mrs.
Loffmin noticed that Ms. Peterson had an injury to her foot and that the injuries to her
neck, back, and foot were bleeding.

      Mrs. Loffmin said that Ms. Peterson was coherent but excited. Ms. Peterson told
Mrs. Loffmin what just occurred at the Petersons’ house, saying that the taller man had
shot her in the foot and taken her from room to room to tell him the location of the
valuables. Ms. Peterson also said that the taller man told her “he shot her f’ing husband,
so don’t go looking for him, he’s dead, dead in the garage.” Mrs. Loffmin took the man’s
statement to mean he had killed Mr. Peterson.

      Mrs. Loffmin said that the police and an ambulance arrived at the scene and that
the ambulance took Ms. Peterson to the hospital. A detective spoke with Mrs. Loffmin,
and she told him what she knew.

       On cross-examination, Mrs. Loffmin acknowledged that one of the houses in the
neighborhood housed foster children. A house next to her had been burglarized, and Mrs.
Loffmin had reported the burglary. The suspect was someone who lived at the foster
house.

      Terry Brown testified that between 5:00 and 5:30 a.m. on August 30, 2014, he
drove down Nashboro Boulevard and turned onto Murfreesboro Pike. Mr. Brown saw a
black male crossing Murfreesboro Pike and paused to let the man cross the street. The
man looked toward the car and gestured to thank Mr. Brown, which gave Mr. Brown the
opportunity to see the man’s face clearly. Mr. Brown identified the man in court as the
Appellant.
                                          -5-
       Mr. Brown drove to a Regions Bank that shared a parking lot with a Kroger
grocery store and stopped at the drive-thru to access the ATM. As he placed his debit
card into the ATM, he glimpsed someone kneeling behind his car and putting on a mask.
A few seconds later, the man, whom he later identified as the Appellant, came to the
driver’s side window, grabbed Mr. Brown’s arm, and took Mr. Brown’s debit card out of
the ATM. The Appellant put his hands on the top of the car on the driver’s side. He was
wearing jeans and a t-shirt that had “a red logo with a white circle around it.” Mr. Brown
said that the Appellant was the same person he encountered on the road and that he knew
the identity “[b]y the t-shirt and by the emblem on it.” Mr. Brown said that the Appellant
was wearing a mask but that he could see the Appellant’s eyes.

        Mr. Brown said that the Appellant reached inside his car. Mr. Brown thought the
Appellant was trying to take Mr. Brown’s cellular telephone because Mr. Brown was
calling 911. The Appellant scratched Mr. Brown’s face. Mr. Brown said the Appellant
“told me if I didn’t give him my PIN number he was going to put a cap in my ass.” Mr.
Brown started blowing the car horn to attract attention, and the Appellant walked to the
passenger side of the car and kicked the glass three times, trying to break it. The glass
did not break, but the Appellant left his footprint on the glass. The Appellant then ran
across the Kroger parking lot and down Nashboro Boulevard. As he ran, “some of his
dreadlocks came out from under his mask.” Mr. Brown estimated that the encounter
lasted three or four minutes. After the Appellant left, a man, whose name Mr. Brown did
not know, approached his car. Shortly thereafter, three or four police officers arrived.

       Mr. Brown said that Detective Brandon Gant called him on September 3, 2014.
Mr. Brown told the detective what had transpired at the ATM and described the
Appellant. On September 15, 2014, Detective Gant showed Mr. Brown a photograph
lineup, and Mr. Brown identified the Appellant. Mr. Brown was shown a photograph of
the Appellant the Friday before trial, and Mr. Brown again confirmed the Appellant was
the perpetrator. Mr. Brown noted that the scene had been “lit up like the Fourth of July,”
and he maintained that he did not “forget a face.”

       On cross-examination, Mr. Brown said that the Appellant’s face could not be seen
in the security video from the bank; however, he was able to see parts of the Appellant’s
face in person. Additionally, the person’s shirt matched the shirt the Appellant was
wearing when he crossed the street in front of Mr. Brown’s car moments earlier.

       Amenaghawon Michael Uwaifo testified that around 5:00 a.m. on August 30,
2014, he got off work and drove his pick-up truck to the Regions Bank on Murfreesboro
Pike to withdraw money from the ATM. When he arrived, he saw a car in front of him.
A man was standing between the ATM and the car, which he thought was strange.
                                          -6-
Uwaifo looked more closely and saw that the man was wearing a mask and was
“throwing elbows and fists through the car window of the driver’s side.” The man was a
slender black male who was a “little tall.” Uwaifo saw the man reach into the car
window. He thought the driver must have rolled up the window, then Uwaifo saw the
man’s “fists kicking the car and the windshield like he is trying to break in.” Uwaifo
thought the driver was trying to defend himself. Realizing something was wrong, Uwaifo
drove to the other side of the Kroger parking lot and parked facing the ATM. Uwaifo
began honking his truck’s horn and flashing its lights but was unable to distract the man.
Uwaifo decided the man was unarmed and drove back toward the ATM. At that point,
the man ran “up the hill, the road, there is a street next to Kroger and ran up. He didn’t
get in a car. He just ran off on foot.”

        Uwaifo called 911 then checked on Mr. Brown. He saw a little blood on Mr.
Brown’s face and noticed that Mr. Brown was “shaken up.” Uwaifo spoke to the officers
after they arrived at the scene.

       Gregory Don Poss testified that he was a corporate security field investigator for
Regions Bank. On August 30, 2014, he was contacted by a homicide detective who
explained that a debit card had been stolen from a bank customer, Ms. Peterson. The
detective asked Poss to examine Ms. Peterson’s bank records to find out whether the card
had been used and, if so, where it had been used. The bank records revealed that Ms.
Peterson’s stolen debit card was used multiple times on August 30 at a Pinnacle Point
location on Murfreesboro Road. The location did not belong to Regions Bank, but it may
have been a Bank of America location. The person attempted to withdraw money in
amounts ranging from $20 to $300; however, sometimes the PIN was entered incorrectly
or the account did not have sufficient funds to withdraw the requested amount.

       Scott Perkins testified that he was the protective services manager for Bank of
America and Merrill Lynch. He was contacted by a detective with the Metro Nashville
Police Department (MNPD) who asked him to review the security video from the Bank
of America ATM on Murfreesboro Pike for a transaction that occurred at 5:07 a.m. on
August 30, 2014. The person in the video was wearing a mask that he pulled down
before looking at the keypad of the ATM. Perkins noticed that the person was wearing a
“distinctive watch.” Perkins contacted the detective and provided him a copy of the
security video and a photograph taken from the video.

       Stanley Green, an investigator’s assistant with Regions Bank, testified that the
police asked him to find the security video showing the robbery of Mr. Brown. After
locating the video, he provided it to detectives.



                                          -7-
       Joe Williams testified that on August 30, 2014, he was working as a crime scene
investigator for the MNPD. At 7:44 a.m., he arrived at the Petersons’ residence, and
Officer Mark Rosenfeld briefed him. In the room where Mr. Peterson’s body was found,
the police found a 9 mm Luger live round and several bullet fragments. On the stairs, the
police found bullet fragments and an expended casing. On the floor of Ms. Peterson’s
bedroom, the police found a silver flashlight and a cellular telephone. Inside the closet
underneath the staircase, they found a bullet. Officer Williams said that the police found
an expended casing in a backyard across the street.

       Officer Williams said that the breaker box in the Petersons’ garage appeared to
have been “jarred open.” Officer Williams explained that Mr. Peterson’s body was found
lying on the floor close to the door outside. Tools, screws, bolts, and other assorted items
appeared to have been “dumped over.” The police found another bullet, bullet fragments,
and a live round. A rug in the garage appeared to have a strike mark from a bullet on it.

        Mark Steven Rosenfeld testified that on the morning of August 30, 2014, he was a
crime scene investigator for the MNPD, and he responded to the Petersons’ residence.
Upon his arrival, Officer Warren Fleak informed him that Mr. Peterson’s body had been
found in the garage, and Ms. Peterson had been located injured at a house across the
street. Ms. Peterson told the officers what had occurred so the crime scene officers knew
where to look for fingerprints. Officer Rosenfeld took fingerprints throughout the
Petersons’ house.

      Sharon Tilley testified that on the morning of August 30, 2014, she was a crime
scene investigator for the MNPD. She responded to the Petersons’ residence and
attempted to collect DNA from different areas around the house, such as the breaker box
and door handles.

       Detective Branden Gant testified that he was assigned to investigate a robbery at
Regions Bank ATM on Murfreesboro Pike. Detective Gant interviewed Mr. Brown, who
told him what had happened and described the perpetrator. Detective Gant developed the
Appellant as a suspect and created a photograph lineup. On September 15, 2014,
Detective Gant showed the lineup to Mr. Brown, who quickly identified the Appellant.
Mr. Brown was confident in his identification. Afterward, Detective Gant obtained an
arrest warrant for the Appellant. Detective Gant contacted Stanley Green with Regions
Bank Security, who provided him with a copy of the security video from the night of Mr.
Brown’s robbery. On cross-examination, Detective Gant denied telling Mr. Brown that a
suspect was in the lineup Mr. Brown was being shown.

       Officer Brian Manning testified that around 6:00 a.m. on August 30, 2014, he
went to the scene and collected fingerprints from Mr. Brown’s vehicle. Officer Manning
                                           -8-
explained that the bank where the robbery occurred was in front of a Kroger and
essentially was in the Kroger parking lot.

        Detective Corey Wall testified that he worked with Detective Chad High on the
case of the robbery at the Bank of America ATM on Murfreesboro Pike. Detective High
interviewed Ms. Peterson, and he told Detective Wall about the interview. Detective
Wall discovered Ms. Peterson’s bank account information, which he shared with
Detective High. Detective Wall later reviewed an email conversation Detective High had
with a representative of Bank of America. The conversation contained three
photographs, two were black and white and one was color. The photographs were taken
from the ATM security video and showed a black male wearing a “pinkish purple looking
shirt[ with] some writing on the front and a large silver watch on one wrist.” The man’s
face was not visible because he was wearing a ski mask. On August 30, 2014, the
photographs were sent to the media.

       Detective Wall said that the Bank of America ATM was across the street from the
Regions Bank ATM. The Bank of America was near a shopping center, and the police
obtained video surveillance footage from some of the surrounding businesses; however,
the video did not aid the police in identifying the suspect.

       Detective Wall said that on September 3, 2014, he received an email from Loretta
Marsh, who was a supervisor in the fingerprinting division of the crime laboratory.
Based upon the email, Detective Wall developed a suspect, compiled a photograph
lineup, and showed the lineup to Ms. Peterson. Within about fifteen seconds, Ms.
Peterson confidently identified the Appellant.

       Detective Wall said that the Appellant was arrested in Gulf Port, Mississippi, and
a member of MNPD’s fugitive unit transported him back to Nashville. The police
searched the Appellant’s vehicle but found nothing of evidentiary value. Detective Wall
said that the Petersons’ residence and the Regions Bank ATM on Murfreesboro Pike
were approximately 5.1 miles apart and that driving between the two locations would
take ten to twelve minutes. Detective Wall said that the Appellant was a black male who
weighed 150 pounds and was six feet tall.

      On cross-examination, Detective Wall said that the Appellant was developed as a
suspect because his fingerprint was found on Mr. Peterson’s television. Later that day,
Ms. Peterson was shown the photograph lineup.

       Detective Joseph Chadwick High testified that on August 30, 2014, he went to the
Petersons’ residence, and he was briefed by other detectives. He spoke with the
Loffmins, who told him what they had seen. Afterward, Detective High researched other
                                          -9-
criminal activity that had occurred in the neighborhood and learned of an individual
named Kendall Clark. Detective High asserted, however, that no evidence linked Mr.
Clark to the instant crimes.

       Detective High prepared a photograph lineup that included Mr. Clark, but Ms.
Peterson did not identify a suspect from the lineup. Detective High then contacted a
fraud investigator at Regions Bank and learned that Ms. Peterson’s stolen debit card had
been used at a Bank of America ATM around 5:00 a.m. on August 30, 2014. Detective
High contacted someone at Bank of America and obtained several still photographs of the
person who used Ms. Peterson’s debit card.

       Detective High said that as part of his investigation, he searched for “social media
postings made either by or of” the Appellant. At the time of his search, Detective High
knew what the Appellant looked like. Detective High recognized the Appellant in a
video the police found on YouTube and said that a still photograph was taken from the
video. The video and still photograph taken from the video were shown to the jury.

       Detective High said that in the video, the Appellant was wearing a watch that was
similar to the watch the person was wearing in the security video of the robbery at Bank
of America. Detective High said that he did not know when the video was posted to
YouTube, explaining that “from what I remember it was posted earlier that year, within
the same, 2014, but I don’t remember when.”

       On cross-examination, Detective High said that Ms. Peterson told him that she was
prompted to get out of bed because the lights went off in the house and that the lights
never came back on after the assault began. Detective High did not know if Mr. Clark’s
fingerprints were ever compared with any of the fingerprints found at the scene.

       Detective High said that he originally found the YouTube video and that Jay
Moyer, who worked for the “SI” division of MNPD, “actually offloaded or extracted it
from the YouTube [s]ite.” Detective High did not know who filmed or posted the video
and did not know if the video had been altered prior to posting. Detective High
acknowledged that he did not know “anything about the video other than it is something
that [he] found on the internet.”

        Linda Wilson, a latent print examiner with the MNPD crime laboratory, testified
that a fingerprint found on the television in Mr. Peterson’s bedroom was the Appellant’s
fingerprint. Ms. Wilson also verified Jessica Davis’s findings that a print taken from the
driver’s side door of Mr. Brown’s car and a print from the window matched the
Appellant’s prints. None of the other prints collected had any value for comparison. On

                                          - 10 -
cross-examination, Ms. Wilson acknowledged that she did not compare Mr. Clark’s
fingerprints with any of the fingerprints collected.

        Lorita Marsh, a forensic supervisor with the MNPD crime laboratory’s latent print
unit, testified that she was the verifying examiner of the fingerprints submitted. Ms.
Marsh agreed with Ms. Wilson’s findings that the Appellant’s fingerprint matched the
fingerprint on the television in Mr. Peterson’s bedroom.

       Jessica Davis with the MNPD crime laboratory’s latent print unit testified that she
compared the known right palm print of the Appellant with prints recovered from the rear
driver’s side door and window of Mr. Brown’s car and determined they matched.

       Teri Arney testified that she performed firearms identification for the Tennessee
Bureau of Investigation. She compared the bullets found in the Petersons’ house and
determined that they were both 9 mm bullets and that they were fired from the same
firearm. The casings recovered also had been fired from the same firearm.

       Rachel Mack with the DNA unit of the MNPD’s crime laboratory testified that she
was asked to test items for DNA, but she did not find any DNA in which the Appellant
could be included.

       Dr. Erin Carney testified as an expert in forensic pathology. She stated that she
was an employee of the Center for Forensic Medicine, which served as the Davidson
County Medical Examiner’s Office and the Regional Forensic Center. Dr. Carney stated
that Dr. Amy Haas performed the autopsy on Mr. Peterson’s body but that Dr. Haas was
no longer employed with her office. Dr. Carney said that she had reviewed the case file,
including the autopsy report prepared by Dr. Haas, the photographs from the autopsy, and
the photographs from the crime scene.

       Dr. Carney said the report reflected that the external examination of the body
revealed a bullet entered the left ear and severed the spinal cord. The wound was fatal.
From stippling on the left side of the forehead, cheek, and neck, Dr. Carney estimated
that the shot had been fired from a distance of anywhere between few inches to two or
three feet.

       Dr. Jeffrey Neuschatz, a cognitive psychologist, testified for the defense as an
expert in eyewitness identification. Dr. Neuschatz said that an eyewitness involved in a
violent, stressful situation, such as being assaulted or robbed, had more difficulty
remembering things “accurately opposed to a situation when it wasn’t a violent event.”
Additionally, in such a situation identifying a perpetrator was more difficult for an
eyewitness.
                                          - 11 -
       Dr. Neuschatz stated that when a weapon was involved in an event, an
eyewitness’s attention was drawn to the weapon and, because of the focus on the weapon,
his or her memory of other details suffered. Dr. Neuschatz further stated that research
showed that an eyewitness from one race had more difficulty identifying a perpetrator
from a different race than a perpetrator from the same race.

       On cross-examination, Dr. Neuschatz acknowledged that if an eyewitness had
ample time to view a perpetrator clearly, the likelihood of an accurate identification
increased.

        The jury found the Appellant guilty of the first degree premeditated murder of Mr.
Peterson; the felony murder of Mr. Peterson; the attempted first degree murder of Ms.
Peterson, a Class A felony; especially aggravated burglary, employment of a firearm
during the commission of or attempt to commit a dangerous felony, namely an attempted
first degree murder, a Class C felony; and the robbery of Mr. Brown. The trial court
merged the felony murder conviction into the premeditated murder conviction. The trial
court determined that the Appellant was a Range I, standard offender and sentenced the
Appellant to twenty-five years for the attempted first degree murder conviction; twelve
years for the especially aggravated burglary conviction; six years for the employment of a
firearm during the commission of or attempt to commit a dangerous felony conviction;
and six years for robbery.

       The trial court ordered the twenty-five-year sentence for attempted first degree
murder to be served consecutively to the life sentence for first degree murder, the six-
year sentence for employment of a firearm during a dangerous felony to be served
consecutively to the twenty-five-year sentence for attempted first degree murder, and the
six-year sentence for robbery to be served consecutively to the sentence for employment
of a firearm during a dangerous felony. The remaining sentences were to be served
concurrently for a total effective sentence of life plus thirty-seven years.

       On appeal, the Appellant contends that the trial court erred by allowing the State
to introduce the video and photograph of him the police found on YouTube without
proper authentication.

                                      II. Analysis

      The Appellant contends that the State “failed to offer even a scintilla of proof to
authenticate” an image of the Appellant that was found on a YouTube video. A still
photograph was taken from the video. The video and photograph showed the Appellant
wearing a distinctive watch that appeared to be the same as the one the perpetrator was
                                          - 12 -
wearing in the security video of Mr. Brown’s robbery. The Appellant complains that the
State presented “no testimony regarding the ownership of the account from any
representative of You[T]ube, when the image was created, how it was created and
whether it was a fair and accurate representation of the [Appellant] at the time in which it
was taken.”

       During Detective High’s direct examination, he testified that as part of his
investigation, he searched for “social media postings made either by or of” the Appellant.
At the time of his search, Detective High “kn[e]w what the [Appellant] looked like.”
Detective High identified a still photograph that was taken from a video the police found
posted on YouTube.

       Defense counsel objected, contending that the State had not laid a proper
foundation for admitting the video and photograph. Defense counsel maintained that the
State needed “to establish who actually created or took the picture, who posted the
picture, when it was posted, was it altered in any way, is it a fair and accurate depiction
of the image shown and without somebody with personal knowledge of that I would
submit that it is inadmissible.” The trial court overruled the objection but instructed the
State “to lay a better foundation of where he found that. . . . How he found it and did he
see that himself and is that an accurate image of that . . . and does he know what the
[Appellant] looks like.”

      Detective High asserted that before performing his internet search, he knew what
the Appellant looked like. Detective High explained how he searched social media:

                     So we had a name, part of our investigation is trying to
              find out any social media contacts or any activity on the
              internet. It has been my experience that people are very
              social. Everyone has a cell phone. In fact, there is more cell
              phones now than there are people on the planet, so they are
              very social.

                     Most every person has a social media account, either
              Twitter, Facebook, YouTube, Instagram, some type of social
              media account, so one of the avenues that we will go through
              in an investigation is a search for social media postings either
              on YouTube or Facebook or Instagram, Twitter or things like
              that and that is what we did. There were several of us
              working on this and I happen[ed] to come across this video.



                                           - 13 -
        Detective High said that once he saw the video, he recognized the Appellant. The
video and photograph taken from the video were shown to the jury. Detective High said
that the video was notable because the Appellant was wearing a watch that was similar to
the watch the perpetrator was wearing in the security video of the robbery of Mr. Brown.
Detective High said that he did not know when the video was posted to YouTube,
explaining that “from what I remember it was posted earlier that year, within the same,
2014, but I don’t remember when.”

       The Appellant contends that the video and photograph were not properly
authenticated. Tennessee Rule of Evidence 901 governs the authentication of evidence.
Rule 901(a) provides that “[t]he requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to the court to
support a finding by the trier of fact that the matter in question is what its proponent
claims.” Whether evidence has been sufficiently authenticated is within the trial court’s
sound discretion, and its decision will not be overturned absent an abuse of discretion.
See State v. Mickens, 123 S.W.3d 355, 376 (Tenn. Crim. App. 2003).

        “A trial court has broad discretion regarding the admissibility of photographs [and
videos].” State v. Davidson, 509 S.W.3d 156, 198 (Tenn. 2016) (citing State v. Banks,
564 S.W.2d 947, 949 (Tenn. 1978)). “Before a photograph is admissible, it must be
verified and authenticated by a knowledgeable witness.” Id. (citing Banks, 564 S.W.2d at
949). A leading treatise has explained that “[v]ideos . . . are authenticated the same way
as photographs.” Neil P. Cohen et al., Tennessee Law of Evidence, §9.01[3][c] (6th ed.
2011). Generally, “[a] photograph can b[e] authenticated by proof that it depicts what it
is claimed to depict, Rule 901(a).” Id. § 4.01[21][e] (6th ed. 2011). However,

              [i]t is not necessary . . . that the witness through whom a
              photo is being introduced was also the photographer who took
              the photo in question. Any person, whether or not the
              photographer, familiar with the place or item that was
              photographed can authenticate the picture by testifying that it
              is a true and accurate depiction of the location or item at issue
              in the case.

Id.

       The Appellant contends that this issue is controlled by State v. Jabriel Linzy, No.
E2016-01052-CCA-R3-CD, 2017 WL 3575871 (Tenn. Crim. App. at Knoxville, Aug. 18,
2017), perm. to appeal denied, (Tenn. Nov. 16, 2017). In Linzy, the State sought to
introduce messages found on Facebook and Twitter that reflected the defendant and the
victim were members of rival gangs and that the defendant had issued threats against the
                                           - 14 -
victim. Id. at *13. The defendant argued that the comments could not be attributed to
him; in other words, the comments could not be authenticated. Id. at *11. This court
stated that “evidence from social media and emails was authenticated when the
prosecution offered corroborating circumstantial evidence.”           Id. at *12.     The
corroborating circumstantial evidence consisted of a witness who knew the defendant’s
Twitter account, a witness who knew the victim’s Twitter account, and witnesses who
had seen certain photographs on the defendant’s and the victim’s Facebook pages. Id. at
*13. However, we cautioned that “‘[t]o the extent that the [d]efendant argues that the
State was required to affirmatively prove that the [d]efendant was the author of the
message, we agree with reasoning from other jurisdictions that such challenge goes to the
weight of the evidence, not its admissibility.’” Id. at *12 (quoting State v. Vermaine M.
Burns, No. M2014-00357-CCA-R3-CD, 2015 WL 2105543, at *12 (Tenn. Crim. App. at
Nashville, May 5, 2015)).

        The instant case is distinguishable from Linzy. The State did not attempt to
attribute any messages to the Appellant; instead, the Detective High, who knew what the
Appellant looked like, found an image of the Appellant on a YouTube video, took a still
photograph from the video, and introduced the video and the photograph to corroborate
Mr. Brown’s identification of the Appellant as the perpetrator who robbed him.

       Although our courts have not yet addressed how to analyze the authentication of
photographs or videos taken from social media for admission at trial, this court recently
addressed whether the authentication of a Facebook video was sufficient for admission
during a sentencing hearing. In State v. Shandejah Andrea Stone, No. M2018-01519-
CCA-R3-CD, 2020 WL 401857, at *1 (Tenn. Crim. App. at Nashville, Jan. 24, 2020), the
defendant contended on appeal that the Facebook video was not properly authenticated,
arguing “that its authentication had to be established by a Facebook representative or by
Defendant.” The video, which showed the defendant talking about various matters and
demonstrating her “significant anger issues” and “willing[ness] to get vengeance,” was
pertinent to various sentencing issues. Id. at *2. This court noted that the trial court saw
the defendant at trial, heard her trial testimony, and saw her again at the sentencing
hearing. Id. at *3. This court held that

              [t]he pertinent factual findings made by the trial court, based
              in part on what it observed in the video, related to what
              Defendant said in it. Information as to the video having been
              distributed via any social media, who may have distributed
              the video, and who may have previously seen it was not
              necessary for the ultimate use of the video as evidence. The
              video was thus properly authenticated . . . .

                                           - 15 -
Id.

       Moreover, other jurisdictions have considered the issue. The Fourth Circuit has
stated that “authentication of social media evidence is a case-specific issue.” State v.
Gerard Gray, __ So. 3d __, No. 2016-KA-1195, 2017 WL 3426021, at *14 (La. Ct. App.,
June 28, 2017), writ denied, 257 So. 3d 688 (La. 2018). “‘Consequently, the type and
quantum of evidence will depend on the context and the purpose of its introduction.
Evidence which is deemed sufficient to support a reasonable juror’s finding that the
proposed evidence is what it is purports to be in one case, may be insufficient in
another.’” Id. (quoting State v. Smith, 192 So. 3d 836, 842 (La. Ct. App. 2016)). In
Gray, the court concluded the defendant’s “argument that there was no authentication
evidence as to when the three YouTube videos were recorded and posted or who posted
the videos addresses the reliability and the weight of the video evidence, not the
authenticity.” Id. at *16. The court explained that “the testimony of a witness with
personal knowledge may provide the authentication of evidence necessary for its
admission” and held that a detective’s testimony was sufficient for the lower court to find
that YouTube videos were what the State claimed them to be. Id.

        The Sixth Circuit has explained that “[a]uthentication does not require certain
proof, but rather only enough proof ‘so that a reasonable juror could find in favor of
authenticity.’” United States v. Thomas, 701 F. App’x 414, 418 (6th Cir. 2017)
(emphasis in original) (quoting United States v. Jones, 107 F.3d 1147, 1150 n.1 (6th Cir.
1997)). The Sixth Circuit found “no reason to depart from the ordinary rule that
photographs, including social-media photographs, are authenticated by ‘evidence
sufficient to support a finding that the [photograph] is what the proponent claims it is.’”
Id. (quoting Fed. R. Evid. 901(a)). Notably, the Sixth Circuit has stated that “it is not at
all clear . . . why our rules of evidence would treat electronic photos that police stumble
across on Facebook one way and physical photos that police stumble across lying on a
sidewalk a different way.” United States v. Farrad, 895 F.3d 859, 879-80 (6th Cir. 2018)
(holding that a court committed no abuse of discretion by admitting Facebook
photographs when sufficient evidence existed that the photographs were what they were
claimed to be).

        In United States v. Vazquez-Soto, 939 F.3d 365, 372 (1st Cir. 2019), the First
Circuit analyzed whether photographs of Vazquez-Soto engaging in strenuous activity
after that he claimed to be disabled were sufficiently authenticated. The photographs
were found on the Facebook page of Vazquez-Soto’s ex-wife. Id. at 373. The court
stated that

              [t]he authenticity of [the] social media account is not at issue
              in this case -- that is, the account’s ownership is not relevant.
                                           - 16 -
              The photographs were introduced as images of Vazquez-Soto
              on a motorcycle trip, not as part of a social media statement
              by [his ex-wife]. Thus, what is at issue is only the
              authenticity of the photographs, not the Facebook page.

Id. The First Circuit concluded that the government offered sufficient evidence to
authenticate a photograph taken from Facebook when an agent testified that he knew
what Vazquez-Soto looked like and that he recognized Vazquez-Soto in each photograph.
Id. at 374.

       Generally, “[e]vidence may be authenticated by its ‘appearance, contents,
substance, internal patterns, or other distinctive characteristics . . . taken together with all
the circumstances.’” United States v. Broomfield, 591 F. App’x 847, 851 (11th Cir.
2014) (quoting Fed. R. Evid. 901(b)(4)); see Tenn. R. Evid. 901(b)(4). Further,
“[a]uthentication may be established ‘solely through the use of circumstantial evidence.’”
Id. (quoting United States v. Smith, 918 F.2d 1501, 1510 (11th Cir. 1990)). Specifically
discussing the authentication of a YouTube video, a Florida District Court of Appeal
stated that “requir[ing] the state to provide testimony from the defendant, codefendants,
or other witnesses who appear in the video, or from someone who recorded the video,
sets the authentication burden too high.” Lamb v. State, 246 So. 3d 400, 409 (Fla. Dist.
Ct. App. 2018) (citing Broomfield, 591 F. App’x at 852). Instead, the court

              permitted the admission of social media videos in criminal
              cases based on sufficient evidence that the video depicts what
              the government claims, even though the government did not:
              (1) call the creator of the videos; (2) search the device which
              was used to create the videos; or (3) obtain information
              directly from the social media website.

Id.; see Jordan v. State, 212 So. 3d 836, 845 (Miss. Ct. App. 2015) (holding that an
investigator had sufficient knowledge to authenticate a video by testifying video was
what State claimed it to be and that any challenges regarding lack of knowledge about
who produced video or when it was made went to weight, not admissibility).

       In the instant case, Detective High testified that he knew what the Appellant
looked like. After performing an internet search, Detective High found a YouTube video
featuring the Appellant, who was wearing a distinctive watch that appeared to be the
same as the watch the perpetrator was wearing in the security video of Mr. Brown’s
robbery. Detective High further testified that the police downloaded a copy of the
YouTube video and made a still photograph from the video. We conclude that Detective
High’s testimony was sufficient to authenticate the video and the photograph. Any
                                             - 17 -
further argument the Appellant had regarding the ownership of the account, when or how
the image was created, or whether it was a fair representation of the Appellant at the time
it was taken goes to the weight the jury attributed to the images, not their authenticity.
See Jordan, 212 So. 3d at 845; Gray, No. 2016-KA-1195, 2017 WL 3426021, at *16. We
conclude that the trial court did not abuse its discretion by admitting the video and the
photograph.

                                     III. Conclusion

       Finding no error, we affirm the judgments of the trial court.


                                                    _________________________________
                                                    NORMA MCGEE OGLE, JUDGE




                                           - 18 -
