Friday, February 01, 2013

Cell-Phones, Testimony and the 6th Amendment

After he was convicted of murder, kidnapping, aggravated robbery, and aggravated burglary in violation of Ohio law, James Hood appealed.  State v. Hood, __ N.E.2d __, 2012 WL 6757969 (Ohio Supreme Court 2012).  This is how the Ohio Supreme Court described the circumstances that led to the charges, and the conviction:

Hood allegedly was one of four men who burst into a Cleveland home and robbed at gunpoint nearly a dozen people who had gathered to celebrate the birthdays of friends and family. A co-conspirator, Samuel Peet, was shot dead during the course of the robbery. Hood was arrested and charged with murder and multiple counts of aggravated burglary, aggravated robbery, and kidnapping.

State v. Hood, supra.  (If you would like to read a little more about the facts in the case, check out the news story you can find here.)

At trial, as part of the evidence it introduced to prove “Hood's involvement in the crimes, the state introduced cell-phone records that it argued showed his communication with the other co-conspirators and his whereabouts during the early morning in question.”  State v. Hood, supra.  In this opinion, the Supreme Court is ruling on Hood’s argument that “the introduction of that evidence violated the Confrontation Clause of the 6th Amendment to the United States Constitution.”  State v. Hood, supra. 

As Wikipedia notes, the 6th Amendment provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him”.  This section of the 6th Amendment is known as the Confrontation Clause and, as Wikipedia also notes, it is generally understood as giving defendants the right “to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.” In other words, it guarantees defendants the right to cross-examine witnesses after they have testified on direct examination.

The Supreme Court began its analysis of Hood’s Confrontation Clause argument by explaining that “[a]t trial, the prosecution introduced cell-phone records for Hood, Hill, and Davis that detectives claimed to have subpoenaed from cellular-phone companies.” State v. Hood, supra.  A detective testified that the officers used subpoenas to obtain the records butn“the subpoenas are not in the [court] record.”  State v. Hood, supra. 

The opinion notes that the cell-phone records

purport to show cell phone activity by Hood, [Kareem] Hill, and [Terrence] Davis on the night and early morning in question. During Hill's testimony, the prosecution used the records to ask Hill about certain calls that were placed by or received by his phone. Those calls included ones made by Hill's cell phone to Davis's cell phone and vice versa, some right around the time of the crimes. Detective Carlin testified that Davis first became a suspect in the robberies when the phone records were reviewed.

There was also a call from one of the stolen cell phones to Hill's phone; Hill claimed that Hood had called Hill's number to see whether the stolen phone worked. The records showed Hill trying to contact Davis several times just before and after the robberies; Hill testified that Hood borrowed his phone to make those calls.

State v. Hood, supra. 

At some point, Hill pled guilty “to reduced charges and agreed to testify truthfully against Hood” at the latter’s trial.  State v. Hood, supra.  As noted above, the prosecutor used the cell-phone records when Hill testified for the prosecution, i.e.,during his direct examination, at Hood’s trial.  State v. Hood, supra.  When the prosecution first

attempted to use cell-phone records in its direct examination of Hill, the defense objected, claiming the records lacked verification . . . of their authenticity. The prosecution argued that the records fell under the business-records exception to the hearsay rule and that Hill could verify the records based on his own knowledge.

The court determined that the prosecution could use the records to have Hill testify as long as another witness would authenticate the records. The prosecutor stated that Detective Carlin, who subpoenaed the records, would testify as to how she obtained them. The defense argued that Detective Carlin could not authenticate business records of another entity, and entered a continuing objection on the record.

State v. Hood, supra. 

Hood’s defense attorney used the phone records in cross-examining Hill, showing they demonstrated inconsistencies in what he said versus what the records showed.  State v. Hood, supra.  After the attorney finished the cross-examination, Hood renewed his

objection to the cell-phone records after the state related that it would use Detective Carlin's partner, Detective Henry Veverka, to verify the records. The trial court remarked at that time: `I've done the . . . research on it and my gut reaction is to subpoena Verizon on that basis. I guess Veverka would just have to come in and say that he issued it, how he's familiar with the business records of the company. . . .'

Veverka testified that the records were obtained through subpoena. He also testified about his experience interpreting cell-phone records [and Hood’s location during certain times at issue in the case]. . . .

State v. Hood, supra. 

The records Veverka referred to were introduced into evidence, despite the fact that Hood’s lawyer objected, pointing out that they “had not been verified as a business record, had not been identified by any phone company, and . . . the alleged subpoenas were not in the record.”  State v. Hood, supra.  The trial judge overruled the objection, the prosecution and defense presented the rest of their evidence and the case went to the jury, which convicted Hood.  State v. Hood, supra. 

Hood appealed his conviction to the Ohio Court of Appeals, claiming “the trial court erred `by allowing cell phone records to be admitted into evidence without being properly authenticated in violation of the Confrontation Clause.’” State v. Hood, supra.  The Court of Appeals held that  “`[a]ssuming arguendo that these records were inadmissible and violative of [Hood’s] right to confront the witnesses against him, any error on the part of the trial court in this regard was harmless.’” State v. Hood, 2010 WL 4522416. 

The Supreme Court began its analysis of Hood’s Confrontation Clause argument by noting that in Crawfordv. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court

stated that the Confrontation Clause bars `admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ 

The key issue is what constitutes a testimonial statement: `It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.’ Davis v. Washington, 547 U.S. 813 (2006).

State v. Hood, supra. 

The Ohio Supreme Court then explained that it, like the U.S. Supreme Court, had held that “business records `are not “testimonial in nature because they are prepared in the ordinary course of regularly conducted business and are `by their nature’ not prepared for litigation.”’ State v. Craig, 110 Ohio St.3d, 853 N.E.2d 621 (2006)).  It noted that a Confrontation Clause issue can arise “`if the regularly conducted business activity is the production of evidence for use at trial.’” State v. Hood, supra (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)).  But the Supreme Court found that the

regularly conducted business activity of cell-phone companies is not the production of evidence for use at trial. The fact that records are used in a trial does not mean that the information contained in them was produced for that purpose.

State v. Hood, supra. 

The court explained that “[b]ecause cell-phone records are generally business records that are not prepared for litigation and are thus not testimonial, the Confrontation Clause does not affect their admissibility”, but noted that “in this case, there is no assurance the records at issue are business records.”  State v. Hood, supra.  It pointed out that the concept of “business records” is relevant in determining whether documents qualify for admission under an exception to the default rule barring the use of hearsay evidence, which I have discussed in earlier posts.  

It also pointed out that for records to be admitted as “business records,” they must first be “authenticated.” State v. Hood, supra.  The court explained that for business records to be authenticated as business records, the party offering them must offer testimony from a “qualified witness” that they were “regularly recorded in a regularly conducted activity”, the data was “entered by a person with knowledge of the act, event or condition” and it was recorded at or near the time of the transaction. State v. Hood, supra.  

The Supreme Court found this requirement was not satisfied in this case because there was no testimony from a

qualified witness. Veverka was not a custodian of the records. He did not prepare or keep the phone records as part of a regularly conducted business activity. . . . A `qualified witness’ . . . would be someone with `enough familiarity with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business.’ 5 McLaughlin, Weinstein's Federal Evidence Section 803.08[8][a] (2d Ed.2009).

State v. Hood, supra. 

The court found that since the records were not authenticated as business records, “we cannot determine that they are nontestimonial”, which meant that their admission into evidence “was constitutional error.”  State v. Hood, supra.  But it also agreed with the Court of Appeals that the error was “harmless.”  State v. Hood, supra.  

As Wikipedia explains, a “harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the [jury] on appeal, or to warrant a new trial.”  State v. Hood, supra.

The Supreme Court reached this conclusion because it found the other evidence of Hood’s guilt was “overwhelming”, in part because “Hill's testimony was, by itself, disastrous for the defense.”  State v. Hood, supra.  It also noted that the cell-phone records “were of minimal probative value and, at most, merely cumulative” of other evidence presented at Hood’s trial.  State v. Hood, supra.  In sum, the Supreme Court held that the

key evidence -- the evidence that places Hood inside the house participating in the crimes -- does not depend in any way on the cell-phone records. DNA evidence proves Hill was there and Hill placed Hood there, armed with an Uzi, wearing latex gloves, and participating in the robberies. Victim testimony corroborated to a large extent Hill's version of events inside the house. Hood was in the vehicle containing the spoils of the robberies soon after they occurred. 

We thus conclude the admission of the cell-phone records did not contribute to Hood's conviction and that their admission was harmless beyond a reasonable doubt.

State v. Hood, supra.

The court therefore affirmed the decision of the Court of Appeals, which upheld Hood’s conviction. State v. Hood, supra.

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