Texts Insufficiently Authenticated by Proof Cell Was Found in Common Area of Apartment Defendant Temporarily Lived in and Texts Contained His First Name — Circumstantial Evidence Inadequate to Permit Jury to Link Cell to Him
People v. Watkins, 2015 Ill. App. LEXIS 35 (Ill. Ct. App. Jan. 21, 2015):
[*P1] After a jury trial, defendant, Charles Watkins, was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2012)) and was sentenced to eight years in prison. Defendant appeals his conviction, arguing that the trial court erred in admitting at trial: *** (2) photographs of two sets of drug-related text-message conversations containing the name "Charles" that were found on a cell phone in close proximity to the drugs in the present case as evidence that defendant had a connection to the cell phone and, circumstantially, to the drugs. [**2] We *** reverse the trial court's ruling as to the text messages. In addition, because we find that the erroneous admission of the text messages in this case was not harmless error, we reverse defendant's conviction and remand this case for a new trial.
[*P2] I. FACTS
[*P3] On about January 26, 2012, defendant was arrested and charged with unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2012)) and with unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(A) (West 2012)). During the pretrial stage of the case, the State filed a notice of its intent to offer into evidence several of defendant's prior drug convictions as proof of defendant's intent to deliver the substance in the present case and for any other issue for which the evidence might become relevant during the trial. The convictions the State sought to admit were: No. 10 CF 191 (unlawful possession of cannabis), No. 10 CF 1213 (unlawful possession of a controlled substance), No. 10 CM 2102 (unlawful possession of cannabis), No. 09 CF 289 (manufacture or delivery of cannabis), No. 07 CM 2324 (unlawful possession of cannabis), and No. 06 CM 2046 (unlawful [**3] possession of cannabis).
[*P4] The trial court treated the notice as a motion in limine and held a hearing on the matter prior to trial. ***
[*P6] At the conclusion of the hearing on the motion in limine, the trial court took the motion under advisement. The trial court later granted the State's motion, in part, ruling that it would allow the State to admit as evidence of defendant's intent to deliver in the instant case defendant's prior conviction for manufacture or delivery of cannabis.***
[*P7] In addition to the above, on the date of the hearing on the motion in limine, defense counsel informed the trial [**7] court that he had just received some late discovery from the State. The discovery indicated that one of the police officers in the case had recovered several hundred text messages from one of the cell phones that was found in the same drawer as the drugs during the execution of the search warrant and that as an expert witness, the officer was going to opine that the text messages demonstrated an intent to distribute drugs. Defendant asked that the text messages be excluded because they had not been turned over until just before the trial. The trial court denied that request and instead continued the trial for a few days to allow defense counsel to review the text messages and to further prepare for trial.
[*P8] The jury trial in this case was held in August 2012. During opening statements, the prosecutor told the jury that the evidence would show that defendant was a "drug dealer" and that on the date in question, defendant was caught with almost 50 grams of powder cocaine and $5,000 in cash. Defense counsel told the jury in his opening statement that the prosecution had the burden of proof and that it would not be able to prove its case against defendant because the evidence simply was [**8] not there. Defense counsel asserted that the evidence would not show to whom the drugs belonged--that a lot of people came and went from the residence, that defendant was just visiting at the time the drugs were found, that the drugs were not found anywhere near the defendant, and that defendant's fingerprints were not found on any of the items recovered. Although the prosecution did not mention anything about a cell phone or text messages in its opening statement, defense counsel told the jury in his opening statement that it might eventually hear some evidence that the State would present about a cell phone and certain text messages on the cell phone. Defense counsel commented that there would be no evidence connecting that cell phone to defendant-no identifying marks on the phone, no name on the phone, no fingerprints, and no phone number associated with the phone. Transitioning away from the cell phone and back into the lack of evidence, defense counsel commented further that there would be "no testimony from any direct eyewitness taking the stand claiming that [defendant] at any point possessed drugs that were found in that residence, let alone that he possessed with any type of [**9] intent to deliver drugs."
[*P9] After the opening statements had concluded, the trial moved into the evidence phase. The evidence presented at the trial, relevant to the issues raised in this appeal, can be summarized as follows. On January 26, 2012, several police officers executed a search warrant at the residence at 608 East Thrush in Peoria, Illinois. The officers proceeded to the residence at about 6:30 p.m. that evening to conduct surveillance before they executed the search warrant. During their surveillance, the officers saw several vehicles coming and going from the alley behind the residence.
[*P10] The officers executed the search warrant at about 8 or 8:30 p.m. Although the officers knocked on the front door and announced their presence and their purpose for being there, no one answered the front door, so the officers used a ramming device to gain entry. As some of the officers were entering the residence, another officer stationed outside saw a person in the southeast bedroom attempt to open the bedroom window. When the officer outside shined a flashlight on the window, the person who was trying to open the window withdrew from it, as commands were being given from the officers inside [**10] the residence. Prior to or during the execution of the search warrant, the officers noticed that a surveillance camera was mounted on the front of the residence and that it was focused on the front porch area. The surveillance camera was visible on or near the TV screen, so that if someone was in the living room area, he or she could see individuals at the front door. A police scanner was also located inside the residence.
[*P11] Upon searching the residence, officers found in plain view in an open drawer in the kitchen one bag containing 47.3 grams of powder cocaine, two bags containing a total 13.4 grams of cannabis, two scales with suspected cocaine residue, three cell phones,3 a spoon with suspected cocaine residue, and an empty plastic baggie with suspected cocaine residue. On the kitchen counter, the police found plastic baggies with the corners torn off and a blunt (a cannabis-filled cigar). Inside a light colored purse on the kitchen table, the police found a scale and two measuring cups with suspected cocaine residue. Although fingerprint analysis was later conducted on many of the items found in the kitchen drawer, no fingerprints were obtained.
3 It appeared from the testimony that [**11] one of the three cell phones may have been located on a shelf near the drawer, rather than in the drawer itself.
[*P12] Defendant and about five other people were present in the residence when the police began executing the search warrant. Another person, Gwen Evans, the tenant of the residence, showed up later. Defendant was the only person at the residence that evening with the first name of "Charles." Defendant was found lying on the bed in the southeast bedroom of the residence and was the only person in that room. Defendant had $577 in his front pocket, which consisted mostly of $20 bills. An additional $4,566, which included 150 $20 bills, was found under the mattress in the same bedroom where defendant was located. Defendant's state identification card, showing a different residential address for defendant, was found on top of the china cabinet in the living room. No drugs or drug paraphernalia were found on defendant's person, and no mail, photographs of defendant, or bills of defendant were found in the southeast bedroom.
[*P13] Another subject, Anthony Parker, was located in the living room/dining room of the residence, which was just off of the kitchen, and was found to have eight individually [**12] wrapped packages of suspected crack cocaine, a bag of suspected cannabis, a folding knife, and a cell phone on his person. The officer who was in charge of the executing the search warrant that evening, Officer Brad Dixon, stated during his testimony that he had no indication that Parker was staying at the residence or that Parker would be at the residence when the search warrant was executed.
[*P14] Defendant was cooperative with the police during the search and did not attempt to run or to resist. Defendant gave a statement at the police station after being read his rights and denied any knowledge or ownership of the drugs in the house. Defendant told police that the lease for the residence was in the name of his aunt, Gwen Evans; that he had been staying there for the past two or three weeks; and that he would sleep on a pull-out couch in the front living room of the residence. Defendant stated that the $577 on his person was his son's social security money and denied that he had any knowledge of the money under the mattress in the southeast bedroom.
[*P15] During the trial, expert witness testimony was presented from Officer Dixon that: (1) the powder cocaine found in the kitchen of the residence [**13] was a "fairly substantial" amount that would not be for personal use and was, instead, for distribution; (2) the eight individually packaged pieces of crack cocaine found on Anthony Parker were packaged for sale; (3) drug dealers in the area typically sold 0.2 gram packages of crack cocaine for $20; (4) it was common for drug dealers in the area to deal in multiple types of drugs; (5) drug dealers did not use banks and would typically keep their money hidden somewhere either on them or very close to them in their residence; and (6) in a house such as the one in the present case, a large amount of $20 bills would indicate that the person was selling $20 pieces of crack cocaine.
[*P16] Officer Dixon also provided additional testimony about the three phones that were recovered from the same kitchen drawer as the cocaine. The phones were admitted into evidence at defendant's trial. Dixon testified that the phones were sent for forensic analysis, but the machine that analyzed the phones was unable to extract any information from them. At some point later (prior to the trial), at the request of the prosecutor, Dixon turned on the cell phones and was able to retrieve hundreds of text messages from [**14] one of the cell phones, which he opined were mostly drug-related. Dixon photographed the text messages that were on that cell phone; did not alter, delete, or change the text messages; and testified that the photographs accurately depicted the text messages that were on the cell phone.
[*P17] When the State sought to admit a sample of those text messages as evidence of identity (defendant's connection to the cell phone) and intent to deliver, defendant objected on the grounds of relevancy, foundation (no evidence that connected the phone to defendant), and hearsay. The matter was discussed outside the presence of the jury between the trial court and the attorneys. The trial court found that the text messages were relevant to show that the phone was part of a drug-dealing enterprise. The trial court commented that it was "very sensitive" to defense counsel's argument that the cell phone was not connected to defendant. The trial court ruled, therefore, that the State could introduce the text messages that contained the name "Charles" and that were related to tying the cell phone to defendant and drug dealing.
[*P18] When the State argued that Officer Dixon should be allowed to testify about the other [**15] messages, even if they were not being admitted as substantive evidence, because they were part of the basis for his expert opinion, the following conversation ensued:
"THE COURT: I understand, but I think you're saying we're not offering if for the truth of the matter asserted, but I don't think any limiting instruction is going to stop this jury once you start piling 30 messages in front of them about drug dealing is going to pay that much attention to a limiting instruction. It's going to be taken for the truth of the matter asserted, and I'm just not going to allow it. If you want to tie -- the officer has testified I've seen hundreds of messages on this phone, they relate to drug dealing, I'm going to let you tie the phone to him. Are you saying that there aren't messages in there that use his name?
[THE PROSECUTOR]: No. There are. That's what I'm going to go through, but I think there are other messages. There were some that specifically deal with 608 East Thrush. Again, I think that goes to who was located here.
THE COURT: Well, that's also the truth of the matter asserted, and I'm just not going to allow it.
[THE PROSECUTOR]: What about the ones referring to when they - when I get [**16] to it, I will read it.
[THE PROSECUTOR]: There is one that refers to - the specific message is, 'I need a half altogether but I got 350. Did Gwen tell you about it?' Again, there's been evidence that the leaseholder, the defendant's aunt, this was his statement to the police is Gwen. So, again, I think that circumstantially links the defendant to this phone, and the phone is linked to the drugs. And, again, there are arguments, you know, the defendant - the defense attorney, obviously, Officer Dixon is subject to cross-examination on this and he can point that out, but if it's a link that establishes that, like if that specific one, Gwen, that's one I would ask for admission as well.
THE COURT: I may be the slowest person in the courtroom, but that sounds to me like that actually helps the defendant but - as to it might be somebody else dealing drugs, but I appreciate where you're coming from. I just think when you start to pile all these up, it changes what it really is.
[THE PROSECUTOR]: That's why we chose a random 20, not hundreds.
THE COURT: I understand. I mean, I don't want to unduly tie your hands either. I want to be fair to both, to all parties here, but I don't know [**17] which ones deal with -- I don't know what the I'll call them the Charles texts. I don't know what they say. I don't know, you know, I think you are allowed to tie that phone into drug dealing, why the officer has made that opinion, and then also tie the phone to Charles, whoever Charles is, but -- and the defense can argue, well, there's another Charles out there. But I don't know -- you know, somebody said there's, what, five texts with Charles in it?
[THE PROSECUTOR]: I pulled them out. They're -- it's five separate days. It's not like one text message. It's text messaging going back and forth between the person ordering and Charles responding, so I would say that it's five separate days.
THE COURT: You want to put it all in context and everything, and I understand that, but then all of a sudden it changes the character of how that evidence is really being heard. That's all I'm telling you."
[*P19] At that point, the trial court was shown the text messages in question. The messages were grouped by date first and then by conversation. The prosecutor explained to the trial court that in the photographs, the text messages with the bubble pointing to the right were outgoing text messages that were [**18] sent from the cell phone in question and that the text messages with the bubble pointing to the left were incoming text messages that the cell phone in question had received. The trial court ruled that the State could admit and publish two of the text-message conversations.4
4 Although not quite clear from the record, it appears that there were about five sets of text-message conversations that the State was seeking to admit.
[*P20] When the trial court commented to the attorneys that it was going to give a limiting instruction to the jury that it could consider the text messages for the purpose of determining whether the phone was connected to defendant, but it could not consider the text messages for the purpose of determining whether there was a drug transaction occurring that was being talked about in the text messages, the following conversation ensued:
"[THE PROSECUTOR]: I agree with that instruction with regards to identity, but that misses the second purpose of this which is we have to prove those drugs were for distribution. And in that case, it does come in as intent to distribute. It's no different than our prior comes in as intent to distribute, so you do get to use the prior.
THE COURT: [**19] Well, I'm talking about these specific messages that you're going to show. He's already testified that there's hundreds of messages on there that are drug related. That is in evidence. I'm talking about - and that's a general statement. He doesn't verbatim talk about any specific message when he says that, and the defense didn't object to that testimony in any event; and it is an opinion he's giving based on hearsay information. But I'm not going to let you put that hearsay information in front of the jury for that purpose. I'm just not.
[THE PROSECUTOR]: For intent?
THE COURT: Right. He's testified that this phone is being used for drug purposes. He's testified to that. That's the way I understood it or at least an inference that can be drawn, so that part of the evidence is in front of the jury. I'm not going to -- and he has said that based on a generic review of those messages. He hasn't quoted any message yet to the jury and I don't want him to, but I'm going to let you put on specific messages that connect the phone potentially or at least as evidence of the phone being connected to this defendant. I'm going to let you do that, but I'm going to instruct the jury that it's for that [**20] limited purpose. But I'm not saying that you can't argue in front of the jury that this phone wasn't used for drugs. That's in evidence. I just don't know why you need to now put the specific hearsay messages for that purpose in front of the jury. You've got his opinion. You've got the basis of his opinion on this point of the phone. Why do you need to put the hearsay information in front of the jury on that point?
[THE PROSECUTOR]: My review of the case law is I don't think it's hearsay. I mean, I understand your ruling. I'm fine with that. My position is it's not hearsay.
THE COURT: I think it is. I think it's clearly hearsay, and, you know, when you start to put it in front of them in volume, it loses this -- I mean, it becomes offered for the truth of the matter asserted.
[THE PROSECUTOR]: And that's why I limit it, but I don't see how this, how a text message is any different to the address book located in [People v. Reed, 108 Ill. App. 3d 984 (1982)]. In the address book it had named other individuals and phone numbers, and the address book came in.
THE COURT: But they were only zeroed in on the name. They specifically say in the case nobody is trying to say that that's an accurate phone number or not.
[THE PROSECUTOR]: Right, [**21] but my point is the whole address book came in. In other words, the entire message should come in, but it comes in because it's identity to the defendant.
THE COURT: I know. I just think it's being offered for the matter asserted. You're not limiting really the context of that message. Your just not. You want the drug transaction in. You want it in, and you want them to think it's a drug transaction.
[THE PROSECUTOR]: But we would be able to if -- I could establish that through -- and that's the other crimes evidence. You can bring in other crimes for intent.
THE COURT: I understand. That's my ruling. I think you're being pretty aggressive. I'd just like to try this case once, not twice and maybe you're right. So let's bring the jury back in."
[*P21] When the jury was brought back in, Dixon was shown the group exhibit containing the photographs of the text messages at issue. Dixon testified that exhibit contained accurate photographs of messages on the cell phone that named or identified a person. The State moved to admit and publish the group exhibit. The trial court granted that request and instructed the jury as follows:
"I'm going to admit [the group exhibit]. That long break was dealing with [**22] the defense's objection. I'm admitting it over the defense's objection. I'm going to allow you folks to see it. Now, what it purports to be -- well, you draw your own conclusions as to what it purports to be, but I'm only offering it for the limited purpose for you to consider whether or not there is some evidence that this phone is connected to this defendant.
Now, that doesn't -- to the extent you might construe these messages to mean there was a drug dealing going on with this message, an actual transaction, that's not for you to consider whether or not that transaction happened, whether or not that's evidence of a transaction. You're only to consider at least this part of the evidence, this exhibit as to whether or not this phone, whether or not it's evidence of a phone connected to this defendant.
Now, there may be other evidence in the case and there may not be. That's up to you to connect whether or not there was drug dealing going on, but for purposes of this bit of the evidence, this exhibit, you're only to consider it for this limited purpose."
[*P22] Officer Dixon was then allowed to testify about some of the text-message conversations as the jury was apparently viewing the photographs. [**23] Dixon was shown the photographs of the first series of text messages and confirmed that the photographs were of the actual face of the cell phone. Dixon stated that the first set of text messages was a sample or a portion of a series of messages that were sent to the cell phone in question from a person identified on that cell phone as "Angela." According to Dixon, the first message in the series from Angela stated, "C dis da shit I'm talking about. I got people waiting on you and you always be on B.S. I'm tryin to bring you some money and they don't have all day waiting. Why you playin?"5 The next message from Angela on the cell phone stated, "A Vik and a." Dixon testified that the phrase "a Vik" typically referred to a Vicodin pill. The following message to the cell phone from Angela stated, "Altogether I want a half Vik ball and separate please and I want it all done. And I got all your money too." Dixon testified that the "half Vik" referred to half of a Vicodin pill and the "ball" referred to could be an eighth of an ounce of cocaine or what was known as an "8 ball." According to Dixon, the next message, the first part of which was partially blocked, said, "Sam something 10 minutes [**24] and it's been half hour. What up Charles." The next message from Angela to the cell phone in question said, "Charles really? So how much longer?" The text continued further on, stating, "What I'm saying is where you at so I can come to you while I got their money? They tried [sic] of waiting. What you want me to do? And don't fuck'n ignore me either." The message after that stated, "They gonna leave in the next 10 minutes. I can't keep them here longer. You got me and my people waiting. Damn. What's going on?" That was the end of the first series of text messages.
5 Our quotation of the text-message conversations is from the trial court transcript of Officer Dixon's testimony. The language used in the actual text messages was abbreviated at times and, therefore, slightly different from what is contained in the transcript of Officer Dixon's testimony. Neither side has disputed or challenged Dixon's reading of the text messages as contained in the transcript.
[*P23] Dixon was then shown the photographs of the second series of text messages to the cell phone in question from Angela. Dixon again confirmed that the photographs were of the actual face of the cell phone. According to Dixon, the first [**25] message of the second series stated, "I need my usually and someone needs a ball." Those same messages were then repeated. The next message stated:
"See Charles dis shit be crazy how you be playing me. When can I come get it myself? Can I just go and wait on you Cuz? I'm at your crib. Man, I got a lot of complaints on this. You put a lot of soda on this shit. You bogus. I can't wait to tell you -- I can't wait to tell OJ how you been playing me."
Dixon commented that the "soda" reference was to baking soda, which was what crack cocaine was cut or made with, and that the more baking soda that was added to increase the quantity of the substance, the more that the quality of the crack cocaine would be reduced. The message after that stated, "Well, I don't want dis B.S. I want my money back." A message was then sent out from the cell phone that stated, "I'm going to come and get that so I can do it up better for you. My bad. Tell me what you got left." The person identified as Angela responded to that message with:
"You just fucked me. Why Charles only person I fuck with is you and dis how you playing me. I even send some of my people to you. All of it. No. You and I don't know why you keep [**26] lying to me on some B.S. I'm not the one who be playing you at all. I do you right at all times and keep it real with you."
At that point, another outgoing message was sent to Angela from the cell phone in question, stating, "I did it too fast. I got you." Angela responded, stating, "Whatever. I know you lying to me, Charles. I just don't [--]." At that point, the message was cut off. That was the end of the second series of text messages.
[*P24] During cross-examination, Dixon acknowledged that he did not know the phone number of the cell phone in question, that there was no indication on the phone itself or on the screen of the phone as to who was the owner of the cell phone, and that there were two other cell phones recovered from the drawer or drawer area during the execution of the search warrant, although one of the cell phones was later discovered to be a fake or non-functioning cell phone.
[*P25] As its final piece of evidence in its case-in-chief, the State was allowed to admit evidence of defendant's prior conviction for unlawful possession of cannabis with intent to deliver. The evidence was admitted, over defendant's objection, on the issue of defendant's intent to deliver the cocaine [**27] in the instant case. The evidence was presented in the form of a certified conviction, which the trial court read to the jury. Prior to reading the certified conviction to the jury, the trial court instructed the jury that the evidence that the defendant had been involved in another crime could only be considered by them on the issue of intent. As read to the jury by the trial court, the certified conviction stated that defendant had been convicted in Tazewell County case number 09 CF 289 for the charge of unlawful possession of cannabis with the intent to deliver and that the conviction was entered on September 25, 2009.
[*P26] After the State rested, defendant elected not to testify in his case-in-chief. Instead, defendant presented the testimony of his sister, LaTonya Ross. Ross testified that defendant did not live at the residence on Thrush but would visit there because their aunt, who lived at the residence, was helping to care for defendant's son or for the mother of defendant's son. According to Ross, several people would come and go from the residence. On two occasions that Ross visited the residence, a man named Charles, who their aunt dated or was friends with, was present at the [**28] residence. Ross did not know whether the Charles that her aunt was dating was staying at the residence, where the man lived, or the man's last name. Ross stated further that in the weeks leading up to the execution of the search warrant defendant was living at 1708 West Garden Street. Ross acknowledged during her testimony that she had previously been convicted of felony retail theft in both 2006 and 2007.
[*P27] After all of the evidence had been presented, the attorneys made their closing arguments. In the summation portion of the State's closing argument, the prosecutor referred to defendant several times as a "drug dealer." In addition, in discussing whether the State had proved that defendant had the intent to deliver the cocaine in this case, the prosecutor stated the following about the text messages:
"Finally, additional identity evidence. We've got the cell phone, those text messages. Two sets of text messages were entered into evidence. That cell phone -- it's from the cell phone that was recovered in the immediate area of the drugs and the drug equipment that was found in the kitchen. The content of those text messages contained the word 'Charles.' Those text messages were solicitations, [**29] people seeking to buy drugs -- not solicitations, but people seeking to buy drugs from a person named Charles. Draw your own conclusions there. What are the chances that it's some other Charles who happened to be a resident at 608 East Thrush Street? Just -- the chances of that are astronomically low. So I'd submit to you that the evidence not only establishes that drug dealing was going on, but it's also quite clear on exactly who that drug dealer was, sitting right there."
[*P30] II. ANALYSIS
[*P31] A. Admissibility of Photographed Text Messages
[*P32] On appeal, defendant challenges both the admissibility of the other-crimes evidence and the admissibility of the text messages. We will address the admissibility of the text messages first because that issue is dispositive of this case on appeal. As to that issue, defendant argues that the trial court erred in admitting into evidence photographs and testimony of the two text-message conversations that were contained on one of the phones that was found in the kitchen drawer where the drugs were located. Defendant asserts first that the admission of the text-message conversations was erroneous because the State failed to present a proper foundation to authenticate the text messages as was required for admission. In making that assertion, defendant notes that the State presented no evidence that defendant owned or used the phone from which the messages were recovered; no testimony from the sender or receiver of the messages as to who authored the [**32] messages; no phone records connecting defendant to the phone; and no testimony from an expert witness, who had analyzed the phone, who could testify as to the integrity and genuineness of the messages. In fact, according to defendant, the only witness who testified about the messages, Officer Dixon, had no personal knowledge as to who had authored the messages. Defendant asserts further that because the State failed to present a witness with personal knowledge of the messages, defendant was unable to cross-examine the declarant to expose any unreliability in the content of the messages.
[*P33] Second, defendant asserts that admission of the text messages was erroneous because the content of the messages themselves was inadmissible hearsay and was used impermissibly by the State for the truth of the matters asserted--to show that defendant was dealing drugs. According to defendant, the record shows that the trial court recognized the potential hearsay problem with the messages but still allowed two entire text-message conversations to be admitted. Defendant asserts that if the true purpose for admission of the text messages was to link defendant to the phone and, by implication, to the drugs [**33] located in the same kitchen drawer as the phone, then the trial court should have only admitted the individual text messages that contained the name "Charles," and not the highly prejudicial text messages that contained references to drugs. Defendant asserts further that the error that occurred was highly prejudicial and far from harmless and was compounded when the prosecutor cited the content of the text messages in closing argument and argued to the jury that the content of the messages showed that defendant was engaged in drug dealing. In addition, defendant asserts that the limiting instruction that was given by the trial court was confusing and inaccurate and did not serve to cure the error from the erroneous admission of the text messages but, instead, made the error worse. Based on the erroneous admission of the text messages, defendant asks that we reverse his conviction and that we remand this case for a new trial.
[*P34] The State argues that the trial court's ruling on the admissibility of the text messages was proper and should be affirmed. The State asserts first that it authenticated exactly as much of the text messages that it needed to authenticate to establish that the phone [**34] was what the State (the proponent) claimed it was, a phone that had been used by defendant and was connected to defendant. Thus, the State contends that it presented an adequate foundation for the admission of the text messages and that defendant's argument to the contrary should be rejected. In making that contention, the State points out that the trial court only allowed the State to admit a small sampling of the text messages, ones that contained the name "Charles," and only for the purpose of attempting to connect defendant to the cell phone that was found in the same drawer where the drugs were located. According to the State, it did not need to present the testimony of the sender and/or receiver of the text messages because the substance of the text messages was not at issue--the messages were not being admitted for the truth of the matters asserted but only to establish that defendant owned or had used that particular cell phone. The State contends further that there was no question about the accuracy of the messages because photographs of the actual messages were presented and were established to be true and correct depictions of the messages on the phone.
[*P35] A determination of [**35] the admissibility of evidence is in the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. People v. Pikes, 2013 IL 115171, ¶ 12; People v. Illgen, 145 Ill. 2d 353, 364 (1991). Under the abuse of discretion standard, "[t]he reviewing court owes some deference to the trial court's ability to evaluate the impact of the evidence on the jury." People v. Donoho, 204 Ill. 2d 159, 186 (2003). The threshold for finding an abuse of discretion, therefore, is a high one and will not be overcome unless it can be said that the trial court's ruling was arbitrary, fanciful, or unreasonable, or that no reasonable person would have taken the view adopted by the trial court. See In re Leona W., 228 Ill. 2d 439, 460 (2008); Donoho, 204 Ill. 2d at 182. Reasonable minds can disagree about whether certain evidence is admissible without requiring a reversal of a trial court's evidentiary ruling under the abuse of discretion standard. See Donoho, 204 Ill. 2d at 186.
[*P36] For the purpose of establishing a proper foundation for admissibility, text messages are treated like any other form of documentary evidence. See People v. Chromik, 408 Ill. App. 3d 1028, 1046-47 (2011). A proper foundation is laid for the admission of documentary evidence when the document has been identified and authenticated. Id. at 1046; see also Michael H. Graham, Graham's Handbook of Illinois Evidence § 901.0, at 1034-37 (10th ed. 2010). To authenticate a document, the proponent must [**36] present evidence to demonstrate that the document is what the proponent claims it to be. Ill. R. Evid. 901(a) (eff. Jan. 1, 2011); Chromik, 408 Ill. App. 3d at 1046. The proponent need only prove a rational basis upon which the fact finder may conclude that the document did in fact belong to or was authored by the party alleged. See People v. Downin, 357 Ill. App. 3d 193, 203 (2005). The trial court, serving a limited screening function, must then determine whether the evidence of authentication, viewed in the light most favorable to the proponent, is sufficient for a reasonable juror to conclude that authentication of the particular item of evidence is more probably true than not. 1 Kenneth S. Broun, McCormick on Evidence § 53 (7th ed. 2013); Graham, supra § 104.2, at 64-65; see also Ill. R. Evid. 104(b) (eff. Jan. 1, 2011). If so, the trial court should allow the evidence to be admitted. Id. The trial court's finding of authentication in that regard is "merely a finding that there is sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not preclude the opponent from contesting the genuineness of the writing after the basic authentication requirements are satisfied." Downin, 357 Ill. App. 3d at 202-03. If the trial court, after serving its screening function, allows the evidence [**37] to be admitted, the issue of authorship of the document is then ultimately up to the jury to determine. Id. at 203; McCormick, supra § 53; Graham, supra § 104.2, at 64-65.
[*P37] Documentary evidence, such as a text message, may be authenticated by either direct or circumstantial evidence. Downin, 357 Ill. App. 3d at 203; see also Ill. R. Evid. 901(b) (eff. Jan. 1, 2011). Circumstantial evidence of authenticity includes such factors as appearance, contents, substance, and distinctive characteristics, which are to be taken into consideration with the surrounding circumstances. See Downin, 357 Ill. App. 3d at 203; Graham, supra § 901.4, at 1051-52. Documentary evidence, therefore, may be authenticated by its contents if it is shown to contain information that would only be known by the alleged author of the document or, at the very least, by a small group of peo ple including the alleged author. See id.
[*P38] In the present case, the text messages were admitted for a limited purpose, to show that defendant had used the cell phone found in the drawer, and therefore, by implication, that there was a connection between defendant and the drugs found in the drawer. The only evidence presented by the State to authenticate the text messages was the fact that the cell phone was found in the same house as defendant, albeit in a drawer [**38] in a common area, and the fact that some of the messages referred to, or were directed at, a person named "Charles." In our opinion, that evidence was not sufficient to properly authenticate the text messages as being sent to defendant. As defendant pointed out in part, there were no cell phone records to indicate that the cell phone belonged to or had been used by defendant or anyone else at the residence; there was no eyewitness testimony to indicate that the cell phone belonged to or had been used by defendant or that the messages were being sent to defendant; and there were no identifying marks on the cell phone itself or on the cell phone's display screen to indicate that cell phone belonged to or had been used by defendant (other than possibly the references to "Charles" in the text messages). The fact that photographs of the actual screen of the cell phone were presented and that Officer Dixon testified that the photographs were true and accurate does not change our opinion on this issue. Dixon's testimony was not sufficient to authenticate the text messages because Dixon had no personal knowledge of the text messages and had no idea who was the owner or user of the cell phone. [**39] See People v. Pulliam, 176 Ill. 2d 261, 276-77 (1997) (in a prosecution for first-degree murder, aggravated criminal sexual assault, aggravated kidnapping, and aggravated unlawful restraint committed against a six-year-old child, the cover of a book found by the police in the defendant's unlocked apartment two days after the crimes were committed entitled, "The Force of Sex," was not shown to be relevant and should not have been admitted by the trial court at the defendant's trial where there was no testimony as to the contents of the book or that the defendant had owned or had read the book). Thus, we conclude that a proper foundation had not been laid for the admissibility of the text messages and that the trial court committed an abuse of discretion by erroneously admitting the text messages over defendant's objection. Cf. Chromik, 408 Ill. App. 3d at 1046-48 (in a sex-offense case, a transcription of text messages that were allegedly sent from the defendant to the victim was properly authenticated where the dates and times of the messages as contained in the transcription mirrored those contained in the phone company's records, the victim testified as to the content of the messages, and the defendant acknowledged the accuracy of several of the messages); Downin, 357 Ill. App. 3d at 202-04 (in a [**40] sex-offense case, copies of email letters allegedly sent from the defendant to the victim were properlyu authenticated where the victim testified that she met the defendant on the Internet, that she and the defendant communicated by email, that she had received a reply to the letter she had sent at the investigating officer's direction to the email address she knew from prior email contacts to be the defendant's, and that the email response that she had received was responsive to the email she had sent and contained information that was known only by her and the defendant).
[*P39] Furthermore, because the contents of the text messages went to the very heart of the main charge in this case--potential drug dealing--and because of the factual circumstances involved--a constructive possession case where drugs were found in a common area of a residence with multiple inhabitants and where one of the other subjects in the residence had drugs packaged for delivery on his person--we find that the erroneous admission of the text messages was not harmless error. See Pulliam, 176 Ill. 2d at 275 ("[a]n error in the admission of evidence is harmless if properly admitted evidence is so overwhelming that no fair-minded juror could reasonably [**41] have voted to acquit the defendant"). We conclude, therefore, that defendant's conviction must be reversed and the case remanded for a new trial.
[*P40] Prior to the new trial, the State is free to file another motion in limine and to seek to have some or all of the text messages admitted. The contents of the hundreds of text messages on the cell phone have not been presented to this court in this appeal and we have no way to determine whether the contents and the other circumstances involved will be sufficient to authenticate the text messages through circumstantial evidence.6 In addition, we need not address defendant's second assertion on this issue--that the text messages contained inadmissible hearsay--because the analysis of that issue may very well change based upon the evidence presented at the hearing on the motion in limine as to authentication and based upon the trial court's ruling thereon. We will, however, address the remaining issue regarding the other-crimes evidence because it is likely to arise again at defendant's retrial and the evidence on that issue is likely to remain the same.
6 During the hearing on the motion in limine, the State or defense indicated that at least one [**42] of the messages referred to the address of the property, that another message referred to defendant's aunt Gwen, and that a third message referred to a person of large stature, as apparently was defendant.
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