Evidence from Provider That Phone Number Is Assigned to Party, and His Admission It Is His Phone, Authenticate Incoming Texts as Likely Received by Him — But the Contents Are Hearsay

People v. Harper, 2017 Ill. App. LEXIS 465 (Ill. Ct. App. July 13, 2017):

In October 2014, defendant, Lafayette Harper, was convicted of first degree murder. In December 2014, the trial court sentenced him to 65 years in prison. Defendant appeals, raising the following arguments: (1) the State failed to prove his guilt beyond a reasonable doubt; (2) defendant's waiver of a 12-person jury was not knowing and intelligent; (3) the court erred in admitting the content of text messages from a cell phone registered to defendant because the messages lacked authentication and contained multiple layers of hearsay; (4) the court erred in admitting statements made by Davieon Harper under the coconspirator exception to the hearsay rule; (5) the State violated defendant's due process rights when it disposed of the vehicle where the shooting occurred before defendant could [*2]  collect potentially exculpatory evidence from it; (6) the State erred in shifting the burden of proof to defendant during the State's rebuttal closing argument; and (7) defendant's 65-year prison sentence was excessive. We reverse defendant's conviction and remand for a new trial because the court erred in allowing the jury to see the inadmissible content of text messages stating unsubstantiated street rumors that defendant had killed a "white boy" after repeatedly telling defendant the jury would not see the content of those text messages.

 I. BACKGROUND

 In November 2010, the State charged defendant by information with four counts of first degree murder for the death of Timothy A. Shutes, Jr. Shutes was killed on October 24, 2009. This court has decided two interlocutory appeals in the case related to motions to suppress statements made by defendant to police during an interrogation. People v. Harper, 2012 IL App (4th) 110880, 969 N.E.2d 573, 360 Ill. Dec. 763; People v. Harper, 2013 IL App (4th) 130146, 376 Ill. Dec. 942, 1 N.E.3d 654. The interlocutory appeals are not relevant to our disposition here.

 On January 8, 2013, defendant filed a motion to bar the prosecution from using fingerprint evidence it obtained from the vehicle where the shooting occurred because the State had not preserved the vehicle. The Illinois State Police [*3]  crime lab identified some of the fingerprints lifted from the back passenger door of the vehicle as belonging to defendant. After the police processed the vehicle as part of their investigation, the car was towed to Coultas Recycling. The car was later crushed for scrap in October 2011, about two years after the murder and almost one year following the filing of the charges herein. On March 24, 2014, defendant filed an amended motion to bar the evidence for failure to comply with section 116-4 of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/116-4 (West 2012)).

 On June 30, 2014, the trial court denied defendant's motion to bar the State from using the fingerprint evidence. The court ruled the vehicle was not forensic evidence. Instead, the fingerprints taken from the vehicle were the forensic evidence. This evidence had been preserved and was available to defendant. The court noted, "the Defendant has not alleged that the vehicle in question contained any other specific evidence in or on the vehicle that was not already obtained that would exonerate the defendant." Further, the court found the fingerprints were not determinative to the outcome of the case. The order states, "The Defendant [*4]  makes the argument that they are pivotal in this specific case, however, a First Degree Murder charge can be proven without fingerprint evidence unlike the situation in Newberry where the charge was possession of a Controlled Substance and the controlled substance was destroyed." The court also noted defendant did not allege the State or police did anything in bad faith.

 At defendant's trial before a six-person jury, Randall Smalley testified he arranged for Shutes to buy marijuana through Davieon Harper. The parties agreed to a purchase price of $3500 for five pounds of marijuana. Shutes and his girlfriend, Ieca Smalley, who was Randall's sister, picked up Randall so they could meet Davieon on the east side of Danville. Davieon told Randall and Shutes they would have to ride with him because the seller did not want additional vehicle traffic. Randall got in the front passenger seat and Shutes got in the back seat on the passenger side. Ieca Smalley did not go with the men.

 Davieon told Randall they were going to make the exchange at a park. Randall testified Davieon was on his cell phone on the way to the park. Randall could hear text messages being sent from and to Davieon's phone. [*5]  Davieon called someone while they were driving and told the person on the other end of the call Randall and Shutes had the money for the drugs. When the person on the other end of the call asked if the buyers had $3500, Davieon took the call off speakerphone.

 After arriving at the park, Davieon received a text message and then, about two minutes later, he got another text message. Almost immediately after the second message, someone opened the back door of the vehicle and reached for Shutes's backpack. Shutes and the man started fighting for the backpack. Randall looked down and saw Davieon had a gun. Davieon told Randall, "If you move, you're dead." Davieon, who weighed between 300 and 400 pounds, grabbed Randall around the neck and restrained him. Randall was "sitting sideways in the seat" and could see the struggle between the shooter and Shutes. Randall saw the other man hit Shutes in the head with the end of the shotgun and then he shot Shutes.

 After the shooting, both Davieon and the shooter left the vehicle. The shooter ran around the car and the two said something to one another. The shooter ran off, and Davieon then tossed his gun onto the roof of a building. Randall got out [*6]  of the car and ran to the closest person he saw outside, so he could use the person's phone.

 Randall called the police and then ran back toward the car. Davieon was back in the car and drove off with Shutes. Randall got a ride to where his sister was waiting. The two then drove to the hospital. When they got to the hospital, his sister hopped out of the car, but Randall left because he saw the police approaching his sister. Instead, he drove to his parents' house and called the police.

 Randall talked to the police that night. At that time, he did not know who the shooter was. He only saw the bottom half of the shooter's face, from the nose down, because the shooter had on a hooded sweatshirt, the hood was up, and the strings were pulled, making the opening for the shooter's face smaller. He did not tell the police during the initial questioning about the hooded sweatshirt. His first testimony regarding the shooter wearing a "hoodie" was in September 2010, presumably at Davieon's trial. Randall could see the shooter had sideburns and some facial hair.

 On cross-examination, Randall testified he met with Detective Stark and Officer Pat Alblinger around 9:15 on the night of the shooting. [*7]  He described the shooter as a black man in his late 20s to 30s, 6 feet 4 inches to 6 feet 5 inches tall, with a skinny build, wearing a tan jacket, dark shirt, and blue jeans. Two days later, on October 26, 2009, Randall was shown a photo lineup that included defendant. He did not identify defendant in the lineup.

 Randall testified he had been given the names of three or four other possible suspects prior to May 2010. He looked these people up on the Internet. He did not identify any of those individuals as the shooter. Randall admitted he previously testified at a hearing in September 2010 (again presumably at Davieon's trial) that he did not see the shooter's face. It was during this testimony that Randall first mentioned the shooter was wearing a dark "hoodie." On redirect examination at defendant's trial, Randall clarified his earlier testimony regarding what he saw, stating he meant he did not see the shooter's entire face.

 On May 24, 2010, Randall told Detective Bransford he knew defendant was the shooter after seeing defendant's picture online. The record is unclear how Randall came across defendant's picture online. The record reflects Randall had been given the names of other [*8]  potential suspects in the murder. However, the record is not clear whether anyone provided defendant's name to Randall. The photograph he saw online, which the State introduced as People's exhibit No. 51-1, was a mug shot of defendant. He also saw People's exhibit No. 51-2 online, a side-profile mug shot of defendant, whom he identified as the shooter. Randall admitted it was dark when the shooting occurred, and the park was not well lit.

 Logan Vance testified he was in cosmetology school with defendant in 2009. He obtained shotgun shells for defendant in September or October 2009.

 John Scott Denton, a forensic pathologist, testified he performed an autopsy on Shutes and determined the cause of death was a shotgun wound to the head.

 Brian Long, a forensic scientist specializing in the examination of latent prints, testified he examined fingerprint evidence collected from the vehicle. He matched three prints from the rear passenger door of the vehicle to defendant's right thumb and middle and ring fingers. Long stated he did not know when those prints were left on the vehicle.

 Jennifer Aper, a forensic scientist at the Illinois State Police forensic science laboratory, testified she [*9]  tested deoxyribonucleic acid (DNA) found on a backpack. Defendant could not be excluded as the contributor of the DNA on the backpack. When asked about the statistics assigned to that evidence, she stated that approximately 25% of unrelated African Americans, Caucasians, and Hispanics could not be excluded as being contributors to the mixture of DNA profiles found on the backpack. On cross-examination, Aper testified she excluded defendant as the source of DNA found on the recovered shotgun.

 Detective Josh Campbell of the Danville police department testified he was involved in the murder investigation. He met with Davieon Harper on the night of the shooting. Davieon provided Campbell with his cellular phone. The number for the phone was 217-712-0758.

 Dan Markus, a customer service analyst and legal liaison at Verizon, testified the phone number 217-474-3731 was registered to defendant. Through Markus, the State introduced a call log showing calls to and from this number. Around the time of the shooting, the phone records showed numerous calls between the phone Davieon provided to the police and the phone registered to defendant.

 Near the end of the second day of trial, when the parties [*10]  and the trial court were discussing the State's exhibits, defense counsel made an objection with regard to the Verizon phone records for a cellular phone registered to defendant. In part, defendant argued the records included text messages that contained inadmissible hearsay. The court admitted the records over defendant's objection. Shortly after the court agreed with the State that the phone records were admissible, defense counsel asked the court to revisit the issue. Defense counsel noted:

"With regard specifically to the text messages, I believe when we were discussing objections [prior to the trial], Your Honor, [the State] indicated to the Court specifically that there was not going to be any text messages that were going to be introduced through the witnesses which she called in her case in chief. I would like to add that as an addition to my objection to the fact that the records themselves are hearsay. I understand she—it's her position that they are kept in the ordinary course of business, but they are not just the records of the phone contacts themselves. There's actual information in that, and it's not relevant—those messages are not relevant to this case at hand, Your [*11]  Honor, and no one has testified about those, the contents of those. All this being said, Judge, I don't think the text messages should be admitted. If they want to parse out and introduce the phone records, the actual call log that was talked about, I don't have an objection to that being admitted into evidence."

The court noted it would stand on its previous ruling to admit the phone records.

 Later that day, the issue of whether the State had agreed not to introduce the text messages came up again. The State argued defense counsel was taking its earlier statement out of context. The court and counsel then had the following exchange:

"THE COURT: "There's no way I am going to allow those business records with the attached text messages to go back to the jury. The text messages are not going to be included when that goes back to the jury.

[THE STATE:] Well, she's talking about admission, at this point.

THE COURT: I know she's talking about admission, but I'm just telling you, the jury is never going to see that, those text messages.

[DEFENSE COUNSEL:] I understand what the Court is saying, and I mean obviously, I'm objecting to their admission, but I'm also, obviously, I would object to them [*12]  going back as well, Your Honor.

THE COURT: Well, they are not going back. I'm not going to change my ruling on the admission until I see a complete transcript. Are we ready to go on the jury instructions?"

However, the next day, just before defense counsel was ready to call its only witness, the court changed its ruling, stating:

"The transcript that I was provided on this issue was just a very, very partial transcript of the issue in question. The line that the Defendants were relying on in saying that there was an agreement between the parties as to the text messages, in the Court's opinion, was an off-hand statement by Ms. Lacy—Ms. Lawlyes, excuse me. There was no follow-up to that statement. There was no indication, as is usually done in this courtroom, when the parties reach an agreement. One or the other of the attorneys will recite what the agreement is, then I will ask the other attorney, 'Is that your understanding of the agreement?' And then in my mind, we then have an agreement. This off-handed statement by Ms. Lawlyes, that says, 'In this case, we plan on presenting—and I know the text messages are not going to come in.' It is in no way, shape or form an agreement between [*13]  the parties in this Court's opinion, and in this Court's opinion, in addition, what Ms. Lawlyes is stating is not Ms. Lawlyes' decision. It's the Court's decision whether or not the text messages would come in. So, I find, based on what I have been presented, that there was no agreement between the parties as to the text messages, and thankfully, that will explain why when we had the side-bar and Ms. Morris said we had an agreement on text messages, I was completely drawing a blank, thinking, 'I don't remember any agreement on text messages,' and concerned that I was losing my mind or something. But I do not feel like there was any agreement at all on text messages. From what I understand about agreement, contract law, this does not represent an agreement on text messages, and so I'm going to go back on what I said yesterday, and if in fact People's Exhibit 50 does go to the jury, it will go to the jury in its entirety. Okay. Are we ready to have the jurors brought in?"

The court allowed People's exhibit No. 50 to go to the jury over defendant's objection.

 One series of text messages, which began approximately three hours after the murder, was sent back to the jury. A message was sent [*14]  to defendant's phone, stating: "I heard you had something to do with a white boy getting killed today[.]" Approximately one minute later, a response was sent from defendant's phone, stating: "What white boy[?]" After between three and four minutes, another message was sent from defendant's phone, stating "Hello[.]" Another message was then sent to defendant's phone, "Out in the hood[.]" A message was then sent from defendant's phone, stating: "What are [you] talking about[?]" The person on the other phone then responded, "I heard a white boy got killed in the hood and you and some of your guys did it[.] [T]hat's the word on the streets[.]"

 The jury found defendant guilty of first degree murder. In December 2014, the trial court sentenced defendant to 65 years in prison.

 This appeal followed.

 II. ANALYSIS

***

 D. Text Messages

 We next address defendant's argument that the trial court erred in admitting text messages from a cell phone registered to defendant. According to defendant, the court not only ignored the rules of evidence but also the State's promise not to introduce the text messages found in Verizon's records for the phone registered to defendant.

 Most of the content of the text messages was fairly innocuous, and most [*28]  of the messages appear to be unrelated to this case. However, one series of messages was extremely prejudicial to defendant, considering Randall Smalley failed to identify defendant as the shooter until months after the shooting.

 The trial court allowed the jury to see the following text message exchange, which took place approximately three hours after the murder between a cellular phone belonging to defendant and another unidentified person. At 11:06 p.m., a message was sent to defendant's phone, stating: "I heard you had something to do with a white boy getting killed today[.]" Approximately one minute later, a response was sent from defendant's phone, stating: "What white boy[?]" After between three and four minutes, another message was sent from defendant's phone, stating "Hello[.]" Another message was then sent to defendant's phone, "Out in the hood[.]" A message was then sent from defendant's phone, stating: "What are [you] talking about[?]" The person on the other phone then responded, "I heard a white boy got killed in the hood and you and some of your guys did it[.] [T]hat's the word on the streets[.]"

 We fail to see how these damaging incoming messages could possibly be admissible [*29]  based on the record in this case. Defendant goes even further, arguing that none of the texts were admissible pursuant to the business records exception. According to defendant:

HN7[] "The hearsay exception in Rule 803(6) permits the admission of business records that were made at the time the information contained therein was transmitted, if kept in the regular course of business as a regular practice of that business. Ill. R. Evid. 803(6). The exception recognizes businesses' motivation to keep accurate records, which they are unlikely to routinely falsify. People v. Virgin, 302 Ill. App. 3d 438, 450, 707 N.E.2d 97, 236 Ill. Dec. 252 (1st Dist. 1998).

Business records contain multiple layers of hearsay where they include information supplied by a declarant 'not himself under a duty to provide such information' for the business. Michael H. Graham, Graham's Handbook of Illinois Evidence § 805, 1000 (10th ed. 2010). Multiple hearsay in a business record 'is excused by Rule 803(6) only where both the source and the recorder of the information, as well as every other participant in the chain producing the record, are acting in the regular course of business.' People v. McCullough, 2015 IL App (2d) 121364, ¶ 121,  395 Ill. Dec. 124, 38 N.E.3d 1."

The text messages provided to the jury do not meet this standard. Neither defendant nor the individuals sending text messages to defendant's phone were acting [*30]  in the regular course of business. As a result, the content of these incoming text messages was not admissible pursuant to the business records exception to the hearsay rule.

 In addition, we do not know who was texting defendant's phone or who he was texting. A record from the phone company, showing the time and recipient or maker of calls to or from a number registered to defendant, is admissible as a business record. The same is true with regard to text messages. The fact calls and texts were made and received by defendant was properly authenticated. HN8[] Evidence can be authenticated by direct or circumstantial evidence. People v. Chromik, 408 Ill. App. 3d 1028, 1046, 946 N.E.2d 1039, 1055, 349 Ill. Dec. 543 (2011). HN9[] Text messages are subject to the same authentication requirements as traditional documents. People v. Watkins, 2015 IL App (3d) 120882, ¶ 36, 25 N.E.3d 1189,  389 Ill. Dec. 163, 25 N.E.3d 1189.

The State established a proper foundation to introduce evidence that calls and texts were made and received by defendant. As the State points out in its brief, a Verizon employee testified the number 217-474-3731 was assigned to an account under defendant's name. Detective Bransford also testified defendant provided that phone number as his own. As a result, this phone number was tied to defendant and provided a rational basis for the trier of fact to conclude text messages [*31]  and phone calls to and from this number were made by or to defendant. See People v. Walker, 2016 IL App (2d) 140566, ¶ 13, 60 N.E.3d 101, 406 Ill. Dec. 199.

 Defendant's reliance on Watkins is misplaced. In Watkins, the court allowed the State to introduce "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." Watkins, 2015 IL App (3d) 120882, ¶ 1, 25 N.E.3d 1189. Three phones were recovered in the same kitchen drawer with the cocaine that was recovered. Id. ¶ 16. No information could be extracted from the phones during a forensic analysis. Id.

 An officer was later able to turn on the cell phones and retrieved hundreds of text messages, mostly drug related, from one of the phones. The officer photographed the text messages that were on the phone. Over the defendant's relevancy, foundation, and hearsay objections to the introduction of the pictures, the trial court allowed the State to admit the photographed messages that "contained the name 'Charles' and that were related to tying the cell phone to defendant and drug dealing." Id. ¶ 17. Eventually, the court allowed the State to admit two text [*32]  message conversations where the name "Charles" was mentioned. Id. ¶ 19. The police officer who testified about these text messages stated he did not know the number of the cell phone or to whom the cell phone belonged. Id. ¶ 24.

 The Third District found the trial court erred in admitting these text messages because "[t]he 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 in a common area, and the fact that some of the messages referred to, or were directed at, a person named 'Charles.'" Id. ¶ 38. The appellate court found this information was not sufficient to authenticate the text messages as being sent to defendant. Id. The present case is distinguishable from Watkins because the State here had evidence the cell phone in question belonged to defendant.

 Returning to the content of these text messages, we fail to see how the content of these messages was admissible based on the record in this case, considering the State did not identify who sent the messages. Putting aside the fact the State did not identify who sent these text messages to defendant or where any information [*33]  regarding defendant's involvement in Shutes's murder came from, most of these texts were irrelevant to this case. Further, while the messages questioning defendant's involvement in the murder were relevant, these messages to defendant were blatant hearsay. Even if the State identified the individual who sent these messages to defendant and called him as a witness at trial, the witness could not testify he "heard on the street" defendant was involved in Shutes's murder.

 In addition to the fact the trial court allowed the jury to see extremely prejudicial, inadmissible evidence, we are also troubled by the manner in which the trial court decided to allow the jury to see this evidence. Shortly after the court agreed with the State that the phone records were admissible, defense counsel asked the court to revisit the issue. Defense counsel noted the State had indicated prior to trial it was not going to introduce any text messages during its case in chief. Defense counsel also indicated the messages were hearsay and not relevant to the case. Further, no one had testified about the content of those messages. According to defense counsel, she did not object to the call log being admitted [*34]  if the text messages were not included. The court noted it would stand on its previous ruling to admit the phone records, including the actual text messages.

 Later that day, the issue of whether the State had agreed not to introduce the text messages came up again. The State argued defense counsel was taking her statement out of context. The trial court made clear the text messages would not be going to the jury. However, the next day, just before defense counsel was ready to call her only witness, the court changed its ruling, stating the phone records would go to the jury in their entirety, including the content of the text messages. Regardless of the inadmissibility of the content of the text messages, the last-minute ruling put defendant at a disadvantage in defending himself in this case.

 The trial court's decision to allow the jury to see the content of these inadmissible text messages sent to defendant was extremely prejudicial to defendant. One of the main points of defendant's case was the weakness of Smalley's identification of defendant as the shooter. The hearsay text messages to defendant regarding his involvement in the murder strengthened Randall Smalley's identification. [*35]  Unlike Smalley's identification, which came months after the murder, the inadmissible text messages showed unknown people in the community were identifying defendant as the killer within hours of the murder. Further, the State did not identify who sent defendant these messages or where the sender of the message received the information regarding defendant's involvement in the murder. As a result, defendant was not able to challenge the reliability of the person sending the message or the individuals spreading this "word on the street." This error was so serious it requires reversing defendant's conviction and remanding for a new trial.

***

III. CONCLUSION

 We reverse defendant's conviction because the trial court erred by allowing the jury to see the content [*36]  of text messages sent the night of the murder, which contained inadmissible hearsay regarding defendant's rumored involvement in Shutes's murder.

 Reversed and remanded.

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