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STATE OF CONNECTICUT v. DERRICK BOUKNIGHT

(SC 19326)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.

Argued October 17—officially released November 22, 2016
Richard E. Condon, Jr., senior assistant public

defender, for the appellant (defendant).

Timothy F. Costello, assistant state’s attorney, with

whom, on the brief, were Patrick J. Griffin, state’s

attorney, Michael Dearington, former state’s attorney,

and Michael Pepper, supervisory assistant state’s attorney, for the appellee (state).
Opinion

EVELEIGH, J. The defendant, Derrick Bouknight,

appeals1

from the judgment of conviction, rendered

after a jury trial, of murder in violation of General Statutes § 53a-54a (a), using a firearm in the commission

of a felony in violation of General Statutes § 53-202k,

carrying a pistol without a permit in violation of General

Statutes § 29-35, and criminal possession of a pistol or

revolver in violation of General Statutes § 53a-217c (a)

(1). On appeal, the defendant claims that the trial court

abused its discretion in ruling that a Facebook2 profile

page and photographs thereon were properly authenticated.

The following facts and procedural history are relevant to the present appeal, which arises out of a deadly

shooting in the city of New Haven following a dispute

between the victim, William Baines, and some of his

neighbors. Baines lived in a house on West Division

Street in New Haven with his girlfriend, Norma Monique

Walters, and her cousin Ella Charie Evans. On October

9, 2010, Baines had won a physical altercation with

Sherrod Daniels, which had started over a $100 debt

that Baines believed Daniels owed him. Later that day,

Baines and Daniels engaged in a verbal argument near

the intersection of West Division Street and Dixwell

Avenue. Walter’s mother, Patricia Outlaw, was in the

vicinity, intervened, and told Baines to calm down. After

speaking briefly with Outlaw, Baines headed back to

his house, which was just a short distance away. Soon

thereafter, Daniels approached Baines’ house with two

other individuals. One of these individuals gave Outlaw

$100 which was, in turn, given to Baines.

Later, there was an altercation between Baines and

Korey Streater, who was a friend of Daniels. During

that altercation Baines punched Streator and knocked

him to the ground in front of a crowd of spectators.

Again, Outlaw intervened and broke up the conflict.

A short while later, Baines was sitting on the front

steps of his house with his mother, Tracy Fulton, his

cousin, Michael Nicholson, and Nicholson’s friend,

Anthony Little. As Nicholson spoke to Baines, the defendant approached through an empty lot adjacent to the

house. The defendant and Baines engaged in a heated

discussion, during which the defendant demanded to

know where the money was. Baines replied, ‘‘[I]t ain’t

got nothing to do with you,’’ ‘‘it’s mine,’’ and ‘‘I don’t

owe nobody no money . . . .’’ The defendant and

Baines continued to argue like this for a few minutes.

Evans, who had been inside the house, came out onto

the porch. She recognized the defendant, with whom

she was very familiar from having lived in the area.

Evans observed that the defendant was wearing a plaid

shirt with a black hood and a baseball cap that bore

‘‘some type of [crossed] symbol’’ and had a red under-
side to its bill. He was also wearing a pair of acidwashed jeans, which Evans had noticed him wearing

on previous occasions.

As the argument between the defendant and Baines

escalated, Baines stood up from the steps, and the

defendant pulled out a black semiautomatic handgun.

Both Evans and Nicholson observed that the defendant

was wearing a black glove on his right hand, with which

he held the gun, but was wearing no glove on his left

hand. Evans pleaded with the defendant to look at her

and reminded the defendant that Baines’ mother was

right there. Nevertheless, the defendant raised his gun

and, from a distance of between a few inches to an arm’s

length, fired one shot into Baines’ chest, killing him.

As Baines fell, the defendant began to walk east along

West Division Street toward Dixwell Avenue. He

stopped briefly, turned back toward where Baines lay

on the ground, and pointed the gun toward those standing at the scene. As the defendant continued to walk

away, he encountered Walters, who was walking west.

The defendant then turned into a vacant lot and fled.

Later that day, Evans identified the defendant from

a police photographic array. Three days later, Walters

likewise identified the defendant from a photographic

array as the man she had seen fleeing the scene of

Baines’ murder.

The defendant was not seen in the vicinity of West

Division Street and Dixwell Avenue after the shooting.

He had fled to Elizabeth, New Jersey, where the Connecticut Violent Crimes Fugitive Task Force of the

United States Marshal Service (task force) located and

arrested him on November 5, 2010. At the time of his

arrest, the defendant was wearing a New York Yankees

baseball cap with a red underside to its bill and one

black glove on his right hand. He was not wearing a

glove on his left hand.

During the course of the trial, the state proffered

testimony by Officer Steven Manware, a New Haven

police officer assigned to the task force, who was

charged with the task of locating the defendant following the shooting. Manware testified outside the presence of the jury that the task force uses the Internet to

track suspects and will often search social networking

websites, including Facebook. During his investigation

into the defendant’s whereabouts in 2010, Manware

found a Facebook profile bearing the defendant’s name.

At the state’s request, in preparation for trial, Manware

again accessed the defendant’s Facebook page in 2014,

and printed a portion of the Facebook profile and several photographs that he found there. Manware testified

that the page and the photographs were the same as

they appeared in 2010.

Subsequently, the state proffered printouts of a Facebook profile page and three photographs associated
with that profile as exhibits. The defendant objected

to the admission of these exhibits, arguing that there

was no evidence that he created or maintained the

Facebook profile or uploaded the photographs. The trial

court overruled the defendant’s objection and admitted

the exhibits into evidence. Following trial, the jury

returned a verdict finding the defendant guilty. The trial

courtrendered judgment in accordance with the verdict

and sentenced the defendant to seventy years of incarceration. This appeal followed. See footnote 1 of this

opinion.

On appeal, the defendant claims that the trial court

abused its discretion in admitting the exhibits from

Facebook. He asserts that: (1) the trial court never

found that the defendant created or maintained the

Facebook profile page or posted the photographs; (2)

the information on the Facebook profile page was

generic, easily obtainable and lacked the ‘‘ ‘distinctive

characteristics’ ’’ required to be authenticated on the

basis of circumstantial evidence alone; and (3) the trial

court, having improperly relied upon the ‘‘ ‘distinctive

characteristics’ ’’ method of authentication, neverfound

that the photographs were accurate reflections of the

scenes depicted and were not altered. In the defendant’s

view, because the profile page and the photographs

were not properly authenticated, the trial court improperly admitted these exhibits into evidence. The state

counters that it adequately authenticated the exhibits

because: (1) the state showed that the Facebook profile

belonged to the defendant based upon the pervasive

consistency of the information and content found on

that page that indicated that the defendant owned the

page; and (2) the state was not obliged to establish that

the defendant created or posted the photographs to his

Facebook page, or to present a witness to testify that

they were fair and accurate representations of their

subject matter, rather, as photographs depicting the

identifiable defendant, they were admissible as substantive evidence under the ‘‘ ‘silent witness’ ’’ rule of

authentication.

Assuming, without deciding, that it was improper

for the trial court to admit the evidence, we begin by

examining whether its admission was harmful. ‘‘When

an improper evidentiary ruling is not constitutional in

nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [W]hether [an

improper ruling] is harmless in a particular case

depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s

case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted,

and, of course, the overall strength of the prosecution’s

case. . . . Most importantly, we must examine the

impact of the . . . evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for

determining whether an erroneous evidentiary ruling

is harmless should be whether the jury’s verdict was

substantially swayed by the error. . . . Accordingly, a

nonconstitutional error is harmless when an appellate

court has a fair assurance that the error did not substantially affect the verdict.’’(Internal quotation marks omitted.) State v. Favoccia, 306 Conn. 770, 808–809, 51 A.3d

1002 (2012). We note that, in the present case, the defendant makes no claim of constitutional error. For the

following reasons, we conclude that, even if this court

was to assume that the admission of the questioned

exhibits was improper, the ruling was harmless.

The state argues that any impropriety was harmless,

and that the case against the defendant was strong, as

multiple witnesses testified that they saw the defendant

shoot Baines. See, e.g., State v. Eleck, 314 Conn. 123,

130–31, 100 A.3d 817 (2014)(finding any errorin excluding statements found on witness’ Facebook page harmless where, inter alia, multiple eyewitnesses testified

to defendant’s commission of crime); State v. Rodriguez, 311 Conn. 80, 91–92, 83 A.3d 595 (2014) (any

error in admitting testimony harmless where, inter alia,

multiple eyewitnesses testified to defendant’s involvement in crime and incriminating statements); State v.

Bonner, 290 Conn. 468, 501, 964 A.2d 73 (2009) (any

error harmless where multiple eyewitnesses saw defendant point gun at time of shooting, flee scene, or confess). Evans, Nicholson, and Little each identified the

defendant as the shooter. Walters identified the defendant as the man she encountered in immediate flight

from the scene ofthe shooting. Outlaw placed the defendant in the vicinity immediately beforehand and interacting with his ‘‘blood brother’’ Streater who had a

motive to seek revenge on Baines. Also, Evans, Nicholson, Little, and Walters each described the peculiar fact

that the defendant was wearing only one glove at the

time of the shooting, and Evans described the defendant’s headwear, including its logo and the red underside of its bill. Manware corroborated all of this

testimony when he related how the defendant was

sporting a solitary black glove on his right hand and a

baseball cap with a red underside to its bill at the time

of his arrest. The state presented the glove and baseball

cap at trial. The photographs and printout, thus, were

merely cumulative of other properly admitted evidence.

The Facebook evidence also was largely innocuous

on its face and not particularly important to the state’s

case. Only one of the exhibits, state’s exhibit 50, which

depicted the defendant wearing a baseball cap and glove

matching the description of the shooter, was in any

way directly probative of the charged crimes. The other

two photographs were merely foundational evidence

for state’s exhibit 50. The photographs did not depict

the defendant committing a crime, and the state never

represented that they even depicted any events
occurring on the day of the shooting.

Moreover, the state presented ample evidence corroborating the Facebook exhibits. See State v. Bonner,

supra, 290 Conn. 501 (any error harmless where ‘‘there

was ample additional evidence corroborating the challenged . . . testimony, and there was no evidence

offered to contradict it’’). Multiple witnesses testified

that the defendant went by the name of ‘‘Donut’’ and

that he lived near the convenience store depicted in

one of the photographs. The defendant did not contest

these facts at trial. The state also conclusively established that the defendant possessed a baseball cap with

a red underside to its bill and a solitary right-handed

black glove when Manware testified that the defendant

was arrested while wearing items matching that

description, both of which the state entered into evidence at trial. Further, the court did not limit the defendant’s ability to challenge the Facebook evidence or

investigate whether any of it had been digitally altered.

See State v. Bonner, supra, 501 (any error harmless

where defendant had ‘‘full opportunity to cross-examine’’ witnesses who presented challenged testimony).

Nevertheless, when the defendant cross-examined

Manware, he did not elicit any testimony that undermined the credibility of these exhibits. The defendant

also did not present any evidence that he undertook

forensic analysis of either the photographs or the Facebook profile to determine if they had been digitally

altered.

We agree with the state. The defendant has not met

his burden of showing that the admission of the evidence had a substantial impact on the jury’s verdict. In

addition, the state’s case was strong. Numerous witnesses identified the defendant as the one who shot

Baines. We conclude, therefore, that any error relating

to the admission of the evidence challenged by the

defendant would have been harmless.

The judgment is affirmed.

In this opinion the other justices concurred.

1 The defendant appealed from the judgment directly to this court pursuant

to General Statutes § 51-199 (b) (3).

2 Facebook is ‘‘a free, web-based social networking site with over 153

million members in the United States. . . . To join Facebook, a user must

provide his or her name, age, gender, and a valid e-mail address, and agree

to Facebook’s terms of service. . . . Once registered, a member receives

a [p]rofile page, may upload a profile photo[graph] representing him or

herself, and may establish connections with other members by approving

them as Facebook [f]riends.’’ (Citations omitted; internal quotation marks

omitted.) Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 791 (N.D. Cal. 2011).