SCOTT D. SMITH a/ka SCOTT DREUX SMITH a/k/a SCOTT SMITH
STATE OF MISSISSIPPI
COURT FROM WHICH APPEALED: WAYNE COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 01/20/2012. TRIAL JUDGE: HON. ROBERT WALTER BAILEY. TRIAL COURT ATTORNEYS: ANDY DAVIS, JAMES D. ANGERO.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK, GEORGE T. HOLMES.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT, JOHN R. HENRY, JR.
KING, JUSTICE. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER AND COLEMAN, JJ., CONCUR. PIERCE, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.
ON WRIT OF CERTIORARI
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Scott Smith was convicted of capital murder for the death of seventeen-month-old Ally Waldrop and sentenced to life without the possibility of parole. Smith appealed his conviction to the Court of Appeals, arguing that the trial court erred in admitting several Facebook messages and that the testimony of an investigator violated the Confrontation Clause. The Court of Appeals found no reversible error and affirmed. Smith filed a Petition for Certiorari arguing that the Court of Appeals erred in holding that the Facebook messages were sufficiently authenticated, that the Court of Appeals erred by finding that an email from Facebook was not inadmissible hearsay, and that the Court of Appeals erroneously applied a harmless-error analysis to the violation of Smith's confrontation rights. We granted certiorari. On certiorari, we limit our review to Smith's claim that the Facebook messages were not sufficiently authenticated. We find that Smith's claim has merit; however, because the error was harmless, we affirm Smith's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2. Some of the following facts and history were adopted from the Court of
Appeals' opinion. Smith married Jenny Waldrop  on April 16, 2010. Waldrop had two children, two-or three-year-old Ethan  and seventeen-month-old Ally, from a previous relationship. Waldrop worked at the Subway located in the local Walmart. Because they had only one vehicle, Smith typically drove Waldrop to and from work. Smith would care for Ethan and Ally while Waldrop was at work.
¶3. On May 28, 2010, Smith took Waldrop to work at 4:00 p.m. Ethan and Ally were with him in the car, and Ally did not have any head injuries. At about 8:00 that evening, Smith called Waldrop at work and told her that Ethan had hit Ally on the head with an iron. He called Waldrop again around 9:00 p.m. and told her that Ethan had hit Ally again with the iron, and that Ally had consequently fallen backward into the wall. Smith then told Waldrop that he had called the hospital and that the hospital told him to watch Ally, and also that he had called his aunt, a nurse, and that one of his aunt's friends was on the way to the house to check on Ally. At about 9:30, Smith called Waldrop again to inform her that a nurse had examined Ally and that she was fine.
¶4. Waldrop got off of work around 10:00 p.m. Her manager testified that she clocked out at 10:08 p.m. Waldrop testified that at about 10:10 p.m., Smith had yet to arrive to pick her up. She called Smith and he informed her that the car had broken down and that he was on his way. Waldrop testified that when Smith arrived, the children were not with him. One of Waldrop's co-workers also testified that she observed Smith pick up Waldrop at about 10:10 p.m. and that the children were not with him. Waldrop testified that Smith told her that he had already put the children to bed. As soon as they returned home, Waldrop went to check on the children and found that Ally was not breathing, her eyes were half-closed, and she had a knot on her head. At that point, Waldrop testified that she started screaming for Smith to call 9-1-1.
¶5. An ambulance was dispatched at 10:19 p.m. and arrived at the residence at 10:21 p.m. Matt Lee, an EMT paramedic with Wayne General Hospital, testified that he responded to the 9-1-1 call on May 28, 2010. He testified that he could not find Ally's pulse nor could he see respirations,
so he attempted to intubate her. Lee testified that he was unable to intubate her because the scene became unsafe. He stated that Smith began to use vulgar language and questioned why they were not at the hospital yet. The ambulance left for the hospital and arrived at Wayne General Hospital at 10:26 p.m.
¶6. Jennifer Williams, the Wayne General Hospital emergency room nurse, testified that on May 28, 2010, she received a phone call at approximately 8:00 p.m. asking whet to do for a young child who was struck in the head with an iron by a sibling. Williams testified that at approximately 10:00 or 10:30 that night, she received a one-year-old child in the emergency room with the symptoms reminiscent of those described in the 8:00 p.m. phone call. She testified that the patient was bluish, pale, not breathing, and unresponsive when she arrived. She also testified that the patient had various stages of bruising in various places on the body, including several bruises to the head.
¶7. Wesley Waites, a criminal investigator with the Waynesboro Police Department, testified that he responded to a call from the hospital regarding Ally's death. Waites testified that Ally had numerous bruises all over her body and that a portion of the back of her head was soft and spongy. Waites testified that Smith informed him that the injuries were caused by Ethan hitting Ally in the forehead with an iron, and Ally falling four to six inches into the wall, striking the back of her head. Waites asked Smith if he would give a blood sample, and Smith refused. Waites proceeded to get a search warrant for a blood test for Smith and was able to have his blood drawn at approximately 6:30 a.m. on May 29, 2010. Shan Hales with the Mississippi Crime Laboratory testified that the crime lab performed an alcohol analysis and a drug screen on Smith's blood and the blood contained .06% ethyl alcohol. Hales opined that a person's body generally eliminates alcohol at a rate of approximately .02% per hour, with the elimination rate range spanning from .01% to .03% per hour.
¶8. Waites testified that he went to the residence at which Ally was injured and did not find any blood or indentations on any of the walls. He also recovered an iron from on top of a washing machine. Waites testified that he did not see any blood on the iron.
¶9. Waites and another investigator interviewed Smith at the police station for nearly two hours. This interview was videotaped, and a DVD recording of the interview was entered into evidence without objection. During the interview, Smith maintained his story that Ethan had hit Ally with an iron, and that he did not know how her other injuries occurred, nor did he know how the severe nature of the injuries occurred. He maintained that Ally was " fine" during his custody. Importantly, he admitted multiple times that he was the sole custodian of Ally during the evening of May 28, 2010, when the injury occurred, and that no other adults were in Ally's presence that evening, until Waldrop got off work at about 10:00 p.m.
¶10. Dr. Adele Lewis, the pathologist who performed Ally's autopsy, testified at length about the injuries Ally suffered. She testified that her external examination revealed that Ally had " multiple injuries to her head, to her face, behind her ears, to her chest, to her upper thigh, and to her vagina," many of which " occurred at or
around the time of her death."  Ten photographs of these injuries were admitted into evidence. Dr. Lewis also testified that some of the injuries were in locations that were " very unusual for an accidental injury to a child." Additionally, some of the scrapes and bruises were older. Dr. Lewis testified that the internal examination of Ally revealed " a great deal of bruising all over the child's scalp, on the underneath of her scalp. She also had multiple fractures of her skull. She also had bleeding on her brain, some bleeding behind her eyes, and injuries to her brain." As to the head injuries, she opined that " [i]t takes a great deal of force to produce that sort of injury. . . . [Children] don't sustain injuries like this in the course of their normal, everyday lives. It takes a person with the strength and coordination of an adult to inflict this type of injury ." (Emphasis added.) She then stated her medical opinion that it was impossible for a two-or three-year-old child to inflict those kinds of injury on another:
Q: Is it possible - is it medically possible, in your opinion, for a two-and-a-half or three-year-old child to inflict those kinds of injuries on another ...