State v. Graves, COA24-308, ___ N.C. App. ___ (Nov. 5, 2024)

In this Cabarrus County case, defendant appealed his conviction for first-degree murder, arguing error in admitting Facebook messages as business records without an affidavit sworn before a notary. The Court of Appeals found no error.

In April of 2021, the victim was shot outside a convenience store by someone in a red vehicle. At trial, the State presented evidence that tied defendant to the red vehicle and the convenience store. The State also presented evidence that defendant blamed his recent arrest on the victim and her sister, including Facebook messages saying the victim was responsible for the arrest. These Facebook messages were offered as business records with a “Certificate of Authenticity of Domestic Records of Regularly Conducted Activity” signed by a “Custodian of Records,” but the certificate did not include a notarized signature. Slip Op. at 3. Instead, the certificate had a declaration signed by the custodian under penalty of perjury. Defense counsel objected to the admission of the messages without a sworn affidavit, but the trial court overruled all objections.

On appeal, defendant argued that the messages were hearsay not properly authenticated as business records, and that admitting the records violated his Confrontation Clause protections. The Court of Appeals walked through defendant’s objections, dismissing both in turn. Considering the hearsay argument, the court looked to State v. Hollis, COA 23-838, 905 S.E.2d 265 (N.C. App. 2024), for the proposition that “an affidavit is valid and authenticated when it is submitted under penalty of perjury” even when the affidavit is not sworn before a notary. Slip Op. at 9. The court explained that “[t]he certificate under penalty of perjury fulfills the purpose of authentication.” The court then considered the Confrontation Clause issue, holding that “[t]he trial court’s decision comports with the general rule that business records are nontestimonial in nature.” Id. at 13. Because the records were nontestimonial, “[t]he Confrontation Clause does not apply.” Id. at 14.