What: A Texas church leader found guilty of strangling an Austin woman to death appeals his conviction.
When: Texas Court of Appeals rules on June 7.
Outcome: Appeals court rules defendant's AOL searches for asphyxiation and visits to Necrobabes.com were reasonably used as evidence and upholds conviction.
What happened, according to court documents:
Patrick Anthony Russo, 44, was a paying subscriber to Necrobabes.com, a Web site that offers "erotic horror for adults" by providing staged photos and video of usually nude women appearing to be strangled, suffocated, hanged and drowned.
In part because of his Necrobabes.com membership, Russo was found guilty of the November 15, 2001 strangulation of Diane Holik, who worked from her home in Austin and was hoping to sell her house and move in with her fiance in Houston.
The murder was discovered when one of her co-workers at IBM became concerned that Holik had missed a scheduled meeting and was unreachable. The co-worker asked Austin police to check on her, which they did at 5:30 p.m. on November 16.
After being let into the house by a neighbor, the police found a fully clothed body in an upstairs bedroom. Holik's wrists had been bound, and there were marks around her neck indicating strangulation by ligature, meaning a garrote such as a cord or rope. (In cases of ligature homicide, blood flow to the brain is blocked and consciousness is lost in 10 to 15 seconds.)
Expensive jewelry, including a $17,500 engagement ring, was missing. There was no sign of a sexual assault.
During their subsequent investigation, police learned that a man claiming to be a prospective home buyer had contacted Austin residents who had "For Sale" signs in front of their homes. Holik's house had one in her front yard, too.
Although the man had given different names to homeowners, police produced a composite drawing and published it in a local newspaper. One woman--who had been suspicious in a November 5 encounter and wrote down the man's license plate number--recognized the drawing and contacted police.
The license plate trail led to Russo, who worked as a worship leader and music director at New Life In Christ Church in Bastrop, Texas, a short drive from Austin. Police raided Russo's home in the early morning hours of November 21, 2001.
They interviewed Russo and released him. Pastor Jim Fox later said that Russo came by his house and discussed the interrogation--saying he was likely going to be arrested for murder and theft of jewelry. The police never mentioned, however, that Holik's jewelry was missing.
In a subsequent search of Russo's home on June 18, 2003, done with a warrant, police seized a personal computer. Detective Roy Rector initially searched the computer using the Encase software for references to Holik and found none. He then expanded it to include Russo's search history, and a prosecutor noticed references to Necrobabes.com.
Armed with yet another search warrant, granted on November 18, 2003, Rector did a more complete search of the computer for "information pertaining to death by asphyxiation." He confirmed with a billing company that Russo had been a member of Necrobabes.com and had viewed Web pages there dealing with manual and ligature strangulation. About 1,200 Necrobabes.com-related images were found on the seized computer, and there was evidence Russo accessed the site two days before the Holik murder.
He was indicted in May 2002. Some DNA evidence found on a green towel in Holik's home also pointed to Russo. A state jury found Russo guilty of capital murder, and he was given a life sentence.
On appeal, Russo raised two issues that are relevant to Police Blotter: First, he claimed that the police exceeded their computer-search authorization given in the June 18 search warrant, and second, he said the Necrobabes.com excerpts should not have been admitted as evidence. Another trial exhibit included his AOL search for "asphyx" (which is that searches have been used as evidence in criminal cases).
The Texas Court of Appeals rejected those arguments and left his sentence intact.
Excerpts from the Texas Court of Appeals' opinion dealing with the search warrant:
The essence of appellant's complaint is that the police exceeded the scope of the search under the June 18 warrant when the police "used" information that they learned from the computer's Internet history to "discover private information on appellant's computer."
Detective Roy Rector, a forensic computer examiner with the Austin Police Department, first made a copy of the computer's hard drive, which is protocol for forensic computer examination. Rector examined the computer with a program called "Encase," which is designed to recover any data located on a hard drive, whether it is an active computer file or a previously deleted file. Rector then performed some keyword searches on the hard drive copy using "Diane Holik," "Pathfinder," and "Lakki Brown" (Holik's realtor). There were no positive hits on these terms. Rector was then requested by a prosecutor to conduct a more thorough search to look for Internet activity related to real estate.
Rector explained that the only way to do that was to recover the entire Internet history and "go through that basically by hand, look at it to see what is real estate and what is not." Detective Rector reviewed the temporary Internet files and the "index.dat" files to determine the computer's Internet history...On August 1, 2003, Rector presented the extracted Internet history to a prosecutor to "see what is real estate and what is not." The prosecutor noted that the Internet history made reference to a "Necrobabes.com."
Rector did not know what that Web site was. While the title appeared suspiciously suggestive and implicitly of a sexual nature, it did not appear to be criminal or of an incriminating character in and of itself. The prosecutor requested Rector to determine if there was additional information of that type on the Internet history concerning "Necrobabes.com."
At some point, Rector was able to parse the Internet history relating to "Necrobabes.com" and determine the dates and times on which the computer had accessed the "Necrobabes.com" Web site on the Internet. Several accesses were on November 13, 2001, two days before the Holik murder.
Detective Rector then, on a personal or lab computer, went online to the Web site for "Necrobabes.com" which was available without charge to anyone surfing the Internet. He was able to view for free the introductory screens, photographs and stories pertaining to the death of women by strangulation. He was able to view information about the payment of fees and the purchase of a membership on the Web site. Rector was able to download these introductory screens, and these exhibits were admitted into evidence.
As noted, on November 18, 2003, another search warrant was issued by a district judge to search the hard drive of appellant's computer for, inter alia, information, photos and text from a Web site named "Necrobabes.com" and information pertaining to death by asphyxiation. The warrant was executed.
The State urges that the temporary Internet files relating to "Necrobabes.com" were not opened before the issuance of the search warrant on November 18, 2003. While the police turned to independent sources to determine the nature of "Necrobabes.com," the State argues that the search of the computer for home sales in the Austin area--the object of the June 18 search warrant--continued as evidenced by exhibits later introduced into evidence without objection. That search was not abandoned in favor of an investigation into "Necrobabes.com."
Keeping in mind the particular facts of the instant case, we find no violation of the Fourth Amendment. The trial court did not abuse its discretion in admitting evidence of the contents of appellant's computer as contended. The sixth ground of error is overruled.
Excerpts from the Texas Court of Appeals' opinion dealing with Necrobabes.com and AOL searches used as evidence:
Appellant complains that the jury was presented with information about his membership in the "Necrobabes.com" Web site and substantial and prejudicial images and stories of asphyxiation that had been viewed on his computer...
State's Exhibit 621 was also generated by Rector and showed Internet activity on the computer on April 27, 2001, with the user-profile of a Patrick Russo and with the use of the AOL (America Online) engine to search for a subject associated to "asphyx." To this exhibit, appellant expressed "no objection." This exhibit is not before us for consideration of its relevancy. State's Exhibits 605 through 618 are the Web pages (introductory screens) from the "Necrobabes.com" Web site and available to anyone surfing the Internet.
The trial court was careful to eliminate images of unrelated sexual activity and nudity, leaving only those images showing ligature and manual strangulation of women and other items pertinent to this circumstantial evidence case where a woman was strangled in her own home. The trial court further limited the admitted images to those that appellant viewed on his computer between the dates of October 7 through November 13, 2001, the latter date being two days before the murder occurred. The State was able to tie some of the viewings to the dates that appellant visited some of the female homeowners and realtors, in order to show intent and motive.
We conclude that the trial court did not abuse its discretion in admitting the exhibits as relevant evidence, or in finding through the balancing process that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.