Commercial Litigation and Arbitration

Circumstantial Authentication of Email Evidence — Illinois

People v. Diomedes, 2014 IL App (2d) 121080; 2014 Ill. App. LEXIS 403 (Ill. Ct. App. June 16, 2014):

[*P1]  After a bench trial, defendant, Daniel T. Diomedes, was convicted of disorderly conduct for knowingly transmitting by e-mail a threat of violence directed against a high school dean. ... On September 27, 2012, the court sentenced defendant to 30 months of probation and 365 days of electronic home monitoring. On appeal, defendant argues that we must reverse his conviction because the evidence was insufficient to establish that he knowingly transmitted a threat and because the e-mail forming the basis of his conviction was not authenticated at trial. ***

Defendant was age 19 at the time of trial (age 18 at the time of the alleged offense). The State's first witness was Jodee Blanco, who testified that she is an anti-bullying activist and author who travels to schools around the world, sharing her personal story of bullying survival with the goal of motivating change. Blanco is not a trained counselor or psychologist.

 [*P5]  Prior to April 26, 2011, Blanco presented her anti-bullying program at Geneva High School. After the program, defendant and other students approached her. Blanco has an "activist e-mail" address, "," that she provides to students and readers. The e-mail address links to her website, which is monitored by Blanco's staff. The staff is trained to handle the communications, but, when there are e-mails of particular urgency, the staff contacts Blanco. On April 26, 2011, Blanco was in New Orleans to give a convention address. Her staff called about "a disconcerting e-mail" and read it to her  [**4] over the phone. Blanco told the staff to "immediately" forward the e-mail to her, and, once she received it, she read it on her iPhone. The State showed Blanco exhibit No. 1, which she identified as "the e-mail that was sent to me at my activist address from [defendant] that concerned my staff." The trial court sustained defendant's objection for lack of foundation. The State then asked Blanco if the exhibit reflected the e-mail she received in April 2011, and she replied, "Oh, yes, that's the one," and confirmed that it was "exactly the same." The State moved to admit the e-mail, but the court sustained defendant's hearsay objection. Ultimately, the State again showed Blanco the exhibit and asked her what e-mail address the e-mail was sent to; she confirmed that it was sent to her activist e-mail address, which she provides to "anyone who needs to reach out to [her]." Blanco confirmed that the e-mail was in the same form as when she received it on April 26, 2011. Defendant objected on the bases of lack of foundation, the best-evidence rule, and hearsay. The court ruled, "at this time, it is admitted. It's admissible. I think what you are saying goes more to the weight, so it's admitted  [**5] over objection."

 [*P6]  Exhibit No. 1 reflects that it is "From: dan daman." The "sent" line reflects "Sent: Tuesday, April 26, 2011 1:37 a.m." The subject line reflects "Subject: Hey Jodee, this is Dan Diomedes from Geneva." The email is sent to "" and copies "" The e-mail states:

"Hi Jodee,

It's been awhile, I can't believe it's been this long, but I can't take it anymore, I wanna die. There was something I never told you in the last e[-]mail I sent you. I was expelled from Geneva High School for posting a threat on my Facebook. Some girl that use [sic] to be my friend called the cops on me. I wasn't gonna do anything, I just wanted someone to care. The cops took my computer, and I've been in the alternative school since April of last year. I've made friends with the other kids who are bullied there, nobody messes with me because I'm not afraid of anything. A lot of progress between kids has increased, and my teachers say they view me as a leader. But, I can't do it, my family is useless low life shit, my teachers don't help me, they just tell me how to live with it. I'm talking about being in this alternative school. I was raised by low life people,  [**6] then I AM THE ONE WHO HAS TO END UP IN A SPECIAL SCHOOL? NOT ONLY THAT, THE DEAN AT GENEVA NEVER DID ANYTHING WHEN I TOLD HER HOW KIDS TRIED TO HIT ME WITH THEIR CARS, THEY THREW SHIT AT ME, AND SHOT ME WITH AIRSOFT GUNS, WHICH LEFT MARKS ON MY FACE. I'm so well[-]behaved at this alternative school, that they tried to get me out, which RARELY happens, so it was a big deal, Geneva said they didn't want me back. I can't take this alternative school environment, I can't stand having to empty my pockets every morning, I can't stand being escorted every time I have to go to the bathroom or something like that. They have time[-]out rooms, mostly everyone at the school has been [in] them. I've been there a year, and never once have I had to go in one. I want out or I will die, the place is suffocating me. I NEED a regular school environment. I was in the counselor's office the other day because I was writing suicide notes, a will, and who I was going to kill. I planned not to hurt any kids, I just want the dean at Geneva, my grandparents, and my mother dead. I'm the one who has suffered my whole life, now I want them to suffer." (Emphases in original.)

[*P7]  Blanco testified that, when she read  [**7] the e-mail, she felt "[c]oncern for the safety of [defendant's] grandparents, his mother and the dean; compassionate, compassionate concern for [defendant] because the demeanor of the e-mail led [her] to believe that he was troubled and needed support." After reading the e-mail, Blanco instructed her staff to telephone the principal at Geneva High School and to link Blanco into the conversation. She spoke to the principal "in the hopes that he would have the address of [defendant's] family so they could be alerted to get out of the house." Next, Blanco was linked into a phone call with the police, and she asked them to dispatch units to defendant's residence and to Mades-Johnstone Center in St. Charles, the alternative high school where defendant was a student. Finally, Blanco contacted Mades-Johnstone.

 [*P8]  Blanco testified that, although she is not a trained psychologist, she follows guidelines to protect herself from potential liability. Accordingly, when the principal of Mades-Johnstone had defendant and the police in his office, Blanco told the police that she was concerned about defendant and she asked that he be taken to a hospital where he could be observed and kept from hurting  [**8] himself or others. She also spoke with the principal and with defendant, who was "sad, frightened, resolved." According to Blanco, in that conversation, defendant threatened his mother and grandparents. She asked defendant if he understood that many lives, including his own, would change if he killed his mother and grandparents and if he "underst[ood] the finality of what that would mean." Defendant responded, "yes."

 [*P9]  The State next called Ginger Rohde, one of defendant's teachers at Mades-Johnstone. Rohde testified that, on or about April 26, 2011, defendant was working at a computer station. Rohde approached defendant to tell him that "somebody had come for him," and she saw at his station a folder that he used in the classroom. She took the folder and gave it to the police on April 26, 2011. The folder was introduced as exhibit No. 2. Rohde identified it and briefly described it as containing "some writings that were made that talked about a will, things that would be given away. It talked about kids suffering. It talked about [defendant] not belonging at our school, feeling that he didn't belong as one of our students. Talking about getting out." Over defendant's relevance objection,  [**9] the exhibit was admitted into evidence.

[*P10]  Finally, Detective Brad Jerdee testified that he is the high school liaison officer responsible for monitoring criminal activities in the area high schools. On April 26, 2011, Jerdee learned of an e-mail that had been forwarded to Geneva High School by Blanco. When asked if he knew who sent the e-mail to Blanco, Jerdee replied that it was defendant. Defendant objected, arguing that there was no proof who wrote the e-mail; the court overruled defendant's objection. Jerdee continued that there were, at that time, three deans at Geneva High School: Mike Kelly, Reed Allison, and Susan Shrader. Jerdee identified exhibit No. 1 as the e-mail that defendant wrote to Blanco and that was forwarded to Jerdee's attention. (Defendant's objections were again overruled.) After reviewing the e-mail, Jerdee advised Shrader of the "threat in the e-mail" and notified Mades-Johnstone of the "severe threat" received. Jerdee observed Shrader's demeanor after she read the e-mail.  [**11] She was visibly upset, nervous, "shaky," uneasy, and fearful. Jerdee testified that defendant was formerly a student at Geneva High School, but had been "outplaced" (i.e., expelled) to Mades-Johnstone.

[*P11]  Defendant was taken to Delnor hospital. Jerdee and another officer went to the hospital, where defendant was in the emergency room speaking with a social worker. The social worker asked the officers if they wished to speak with defendant, Jerdee replied that they did, and she left the room. Defendant told the officers:

"that he did in fact send an e-mail to Jodee Blanco indicating that he was fed up with his current school, situation, and that--

* * *

And that he couldn't take any more of that situation, which prompted him to write the e-mail. He said that he was frustrated and wanted his parents, his grandparents, and Dean Shrader to suffer. He specifically stated in the e-mail that he wanted them to die."

In their meeting, Jerdee showed defendant the e-mail he had received, and defendant "alluded" that he was angry with Shrader because she placed him in the alternative school.

 [*P12]  Defendant was next taken to St. Joseph's hospital in Elgin. Jerdee received a warrant for defendant's arrest, and  [**12] on May 3, 2011, defendant was transported from the hospital to the police station. After he received Miranda warnings, defendant spoke with Jerdee and another officer about how he was feeling and the medications he was taking. They discussed the e-mail, and "he again told us that he knew that--he felt that it was inappropriate in sending it; however, he was frustrated at the time and that's why he sent that e-mail." Defendant voluntarily provided a written statement, which included, "I wrote this e[-]mail because I was seeking help for depression, anger, and suicidal thoughts, and I had nobody around to talk about it with. I sent an e[-]mail to Jodee Blanco with words like 'I want to die,' 'I want my family dead' . . . things like that, but I thought Jodee would understand. Problem was, somebody else read the e[-]mail first, and had to take precautions." Further, defendant wrote, "[b]efore writing this letter, I found out that the dean at Geneva was shocked that I wanted her dead, but I also found out that she couldn't tell me about any other kids['] consequences, even though she did everything that she could to help me. If she was here, I would look her in the eyes, and apologize for  [**13] worrying her." The statement was received into evidence (exhibit No. 3).

 [*P13]  The State rested. Defendant moved for a directed finding, arguing that the e-mail was not proven to have come from him; that the e-mail and folder reflected only his will, wishes, and private thoughts, not a threat; and that, even though his thoughts were disturbing, the State did not establish any intent to transmit a threat. The court denied defendant's motion for a directed finding. Defendant presented no evidence. The court found defendant guilty of disorderly conduct. It denied defendant's motion to reconsider. The court sentenced defendant to time served (101 days in jail), assessed various fines and fees, and imposed 30 months of probation, "the first 12 to be intensive." Further, it ordered defendant to continue his psychiatric treatment and to remain on GPS monitoring for the first 12 months of probation. Defendant appeals.




 [*P15]  A. Sufficiency of the Evidence

 [*P16]  Defendant argues first that the evidence was insufficient to sustain his conviction because: (1) considering the e-mail's content and to whom it was sent, it did not contain a knowingly made death threat; and (2) the e-mail was inadmissible  [**14] as substantive evidence because the State failed to authenticate it as having been authored by defendant.

 [*P17]  We first address defendant's second argument. Defendant argues that, although the court initially sustained his foundation objection, its subsequent admission of the exhibit was erroneous because the State did not present evidence to show that he authored and sent the e-mail. Defendant notes that, although the e-mail's subject line states "Hey, Jodee, this is Dan Diomedes from Geneva," that statement is hearsay and could have been written by anyone. Further, defendant notes that the e-mail purported to be from "dan daman," which is not his name, and that the State did not provide any evidence that the e-mail was generated from his e-mail address. Accordingly, defendant argues, because the State did not directly link to him the Internet Protocol (IP) address from which the e-mail was sent, and because the circumstantial evidence was inadequate to authenticate the e-mail, it was inadmissible and his conviction must be reversed. We disagree.

 [*P18]  We review a trial court's admission of evidence for an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001). An abuse of discretion  [**15] occurs only when no reasonable person would adopt the court's view. Id. Here, defendant is correct that the evidence did not directly establish that he sent the e-mail. However, as defendant acknowledges, a document can be authenticated through circumstantial evidence. See, e.g., People v. Towns, 157 Ill. 2d 90, 104 (1993) (a written document can be authenticated through circumstantial evidence, such as by "appearance, contents, and substance"). Here, viewing the evidence in its totality, we cannot conclude that the trial court abused its discretion in admitting the e-mail.

 [*P19]  The e-mail reflects, in the subject line, "this is Dan Diomedes from Geneva." While this is clearly insufficient, alone, to establish that defendant was in fact the author, the trial court could certainly consider that subject line when viewing the evidence as a whole. Further, the body of the e-mail discussed that the author: (1) was expelled from Geneva High School for posting a threat on Facebook and was sent to an alternative school; (2) was upset at the Geneva High School's dean and described "her" as not addressing bullying; (3) wanted to return to Geneva High School, but the school refused to allow it; (4)  [**16] was "suffocating" and unhappy in the alternative school environment; (5) had recently written suicide notes, a will, and a list of people whom he or she "was going to kill"; and (6) was not going to hurt any kids, but "wants" dead and "to suffer" the dean at Geneva, his or her grandparents, and his or her mother. Much of that information was also written on the folder that was confiscated from defendant and admitted into evidence at trial. (Indeed, in his appellate brief, defendant agrees that the "writings on the inside and outside of the folder mirror the remarks that [defendant] conveyed to Blanco in the email.") Accordingly, the trial court could reasonably have found that the person who wrote the e-mail was the same person who wrote the notes on the folder. Finally, in his voluntary written statement, defendant stated that he wrote "this e-mail" (emphasis added) to Blanco, which included phrases such as "I want to die" and "I want my family dead," and he further stated that he learned that Shrader was shocked that he wanted her dead. Jerdee testified that defendant wrote the voluntary statement while being interviewed about the e-mail that Blanco received and forwarded to the  [**17] police. Moreover, Jerdee testified that, in his interview with defendant at the hospital, defendant admitted to having written the e-mail.

 [*P20]  Contrary to defendant's assertion, the cases he cites do not stand for the proposition that, to connect the e-mail to him, the State was "obliged" to demonstrate that the IP address from which the e-mail was sent was connected to him. While, in those cases (both of which concerned computer-related crimes, such as computer tampering and electronic harassment), the State did offer IP addresses connected to the defendants, the courts did not hold or even suggest that an e-mail must be authenticated through an IP address or that circumstantial evidence is insufficient. See, e.g., People v. Kucharski, 2013 IL App (2d) 120270, ¶¶ 10-12; People v. Janisch, 2012 IL App (5th) 100150, ¶¶ 8-9. Indeed, Illinois Rule of Evidence 901(b)(4) (eff. Jan. 1, 2011) illustrates that, where a document's contents, in conjunction with other circumstances, reflect distinctive characteristics, the authentication requirement may be deemed satisfied. In sum, the circumstantial evidence here was sufficient to establish that defendant wrote the e-mail, and the trial court did  [**18] not abuse its discretion in admitting the e-mail into evidence.

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