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State v. Coston

Supreme Court of Maine

August 29, 2019

STATE OF MAINE
v.
LARRY F. COSTON II

          Argued: June 25, 2019

          Zachary J. Smith, Esq. (orally), Lawsmith Legal Services, L.L.C., Bangor, for appellant Larry F. Coston II

          Marianne Lynch, District Attorney, and Mark A. Rucci, Asst. Dist. Atty. (orally), Prosecutorial District V, Bangor, for appellee State of Maine

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          SAUFLEY, C.J.

         [¶1] Larry F. Coston II appeals from a judgment of conviction of burglary (Class C), 17-A M.R.S. § 401(1)(A) (2018), [1] entered by the court (Anderson, J.) after a jury trial. He argues that the court erred in admitting recordings of incriminating telephone conversations that he had with his girlfriend while he was in jail. We affirm the judgment.

         I. BACKGROUND

         [¶2] Coston was tried by a jury in October 2018 on a charge of burglary arising from events that had occurred in May 2018.[2] The State presented evidence that Coston borrowed a car; drove his friend to a location near a convenience store where the friend intended to break in to steal cash or goods; and, after the friend broke into the store and stole cigarettes, drove the friend home.

         [¶3] As part of its case-in-chief, the State sought to admit recordings of Costons telephone conversations that were recorded by the jail in which Coston was held after his arrest. The State offered the testimony of a Penobscot County jail administrator and a Dexter police officer to establish the means by which the jails phone calls are recorded, preserved, and retrieved. The jail has a contract with an out-of-state company to provide telecommunications services for inmates. Inmates are assigned identification numbers that they must use to place calls. All calls in the jail are recorded except for inmates calls to and from their attorneys and calls placed on the separate, internal phone system of the jail. The recordings are collected and preserved on the companys servers outside of Maine.

         [¶4] The recordings may be accessed and searched by jail administrators and law enforcement via a website that requires entry of a username and password. The recordings here were downloaded from the systems website by the Dexter police officer, who kept his username secure in his desk at work, had his password memorized, and accessed the website in his office on a desktop computer that cannot be used without a password. The officer testified that he did not alter the recorded calls or delete anything from them.

         [¶5] Although Coston objected to the admission of the recordings, asserting a failure of foundation and the States failure to eliminate any possibility of tampering, there was no evidence of tampering or other evidence suggesting any alteration of the audio that was to be played to the jury. The court determined that a sufficient foundation had been laid for the recordings and admitted them, concluding that nothing suggested that anyone had tampered with the recordings.

          [¶6] After the State rested its case, Coston testified that he had not known what his friend had intended to do when he gave him a ride in the borrowed car and that he had not become suspicious until his friend returned to the car carrying cigarettes and wearing different clothes.

         [¶7] The jury found Coston guilty of burglary, and the court sentenced him to one year of imprisonment, with all but sixty days ...


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