*1
2012.)
(No.
26,
21,
2011-1092 Submitted December
2012 Decided December
authority
is affirmed on the
of In re
judgment
appeals
of the court
M.W.,
309,
O’Connor, C.J., concur. J., dissents.
Pfeifer,
Kennedy, J., not participating. Jr., H. and Laura M. Montgomery County Prosecuting Attorney, Mathias Heck Woodruff, Prosecuting Attorney, Assistant for appellee. Defender, Powell,
Timothy Young, Ohio Public and Amanda Assistant Public Defender, appellant. Appellant. Ohio, Appellee, Hood, State
[Cite as State v.
Pfeifer,
Reconsideration
*2
filed
a motion for reconsideration
upon
us
matter is before
This
{¶ 1}
11.2(A)(4)
for reconsid-
allows a motion
of Ohio. S.Ct.Prac.R.
the state
appellee,
reconsidera-
have invoked the
of a case. “We
a
on the merits
eration of decision
which, upon
correct decisions
in
XI to
set forth
S.CtPrac.R.
tion procedures
rel. Huebner v. W.
in error.” State ex
reflection,
to have been made
are deemed
(1995).
381, 383,
See
Council,
662 N.E.2d
75 Ohio St.3d
Village
Jefferson
Found,
Falls,
539,
82 Ohio St.3d
Cuyahoga
v.
Community Hope
Buckeye
also
(1998).
541,
but instead
around
concerns center
part,
For the most
the state’s
outcome-determinative.
violates the
hearsay
“A
violation itself
opinion,
in the original
the statement
analysis.”
Clause,
heightened
a
harmless-error
requires
and thus
Confrontation
¶
Merit whether, in general, cell-phone in this case is The issue we address evidence that company a constitute testimonial produced by cell-phone a witness under the Confrontation to cross-examine implicates right defendant’s Constitution. We find of the Amendment to the United States Clause Sixth authenticated, and are records, if are business records ordinarily properly such However, case, properly records were not cell-phone in this not testimonial. trial, rights the defendant’s under and their admission violated authenticated cell-phone of the We hold the admission the Confrontation Clause. error, a reasonable doubt. beyond that that error was harmless but Background Factual and Procedural January defendant-appellant, hours of early morning In the home and of four men who burst into Cleveland allegedly was one James gunpoint nearly robbed at a dozen who had people gathered to celebrate Peet, birthdays family. friends and A was shot dead co-conspirator, Samuel during the course of the Hood was robbery. charged arrested and murder counts of multiple aggravated burglary, aggravated robbery, kidnapping. crimes, As proof establish Hood’s involvement the state argued introduced records that it showed his communication -withthe other co-conspirators and his whereabouts during early morning question. The issue we address is whether the introduction of that evidence violated the Confrontation Clause of the Sixth Amendment to the United States Constitution.
The Crime 25, 2009, In the evening January late group gathered friends the basement of Sharon Jackson’s home on Parkview play Avenue Cleveland to *3 cards and birthdays son, celebrate the of Denotra Jones and her Rodney. Among guests that evening alleged was one of the co-conspirators, Terrence Davis, Jones, also known as “TD.” According to Rodney presence Davis’s was unusual: joined Davis had not group year, over a party and he left the several times throughout the TD had evening. day met earlier that with Samuel Peet and the other co-conspirators and Kareem Hill—and told them about —Hood party. Jackson, son, Jerrell homeowner Sharon Jackson’s person was the first to be confronted by the assailants. He had walked some to guests their cars at a.m.; inside, around 5:00 when he went back there were four men in hallway wearing masks and carrying guns. Jerrell gun noticed that one was an Uzi. basement, Jerrell ran down into the a yelling warning everyone. Sharon Jackson, basement, who had fallen asleep on a couch in her was awakened commotion; she saw being Jerrell followed into the basement four men wearing masks and carrying guns. guns She described the as two 9 mm Uzi, handguns, one and one handgun long with a chrome barrel. The robbers made the strip, victims then clothing searched the and took money and cell phones. Nine of the eleven victims testified at trial. They described the same
basic basement, facts—men dark clothing, wielding guns, stormed into the clothes, ordered some of the victims to remove their and stole money and cell phones from gunpoint. them at Some witnesses differed on the number assailants, four, from two to but the victims were robbed in two separate rooms of the basement. At point, gunshots some were heard. One of the co-conspirators, Peet, was later found dead in a nearby, yard several away. houses Several of the victims identify were able to him as one of the assailants due to his distinctive coat. He had been shot twice proximity; from close on his two body phones belonging to victims and cash. $345 a.m., report a a male morning, police 4:00 received Earlier that around
9}{¶ and Sophia Street in the area East 104th a at another male pointing gun scene, Avenue, the officers observed a En route to where Hood lived. near Avenue with its lights in the middle of Parkview stopped green Jeep Cherokee pursued The officers Jeep sped away. approached, on. As the officers number, “EOF,” losing before plate sight Jeep get partial were able to and investigate called to Parkview help The same officers were the vehicle. utility was involved in the sport that a vehicle Avenue and told break-in break-in, Cherokee, number EOF plate license Shortly green crime. after Cash, mask, two and victims’ cell at a local McDonald’s. spotted was Hill, Hood, Kareem and inside. his co-defendant William phones were found and At the time his the vehicle arrested. Sparks had been removed from arrest, eventually Hill possession. cash his testified Hood had $411.25 against Hood. Hill’s Testimony
Kareem lied to and denied involvement crimes. initially police any Hill DNA, tested for Hill’s Hill glove positive But a latex found at the scene truthfully against Hood. pleaded charges agreed testify to reduced guilty Davis, Peet from the co-conspirators neighbor- Hill knew his crimes; Hill at the time of the Hood older— grew up. hood where he was 18 trial, hours attorney. time of the to his before according he 29 at the Hill Davis and Peet at a bar. The four discussed robbery, met togo Davis the bar to robbing game party. a card on Parkview Avenue. left *4 specifics party Davis returned to and laid out the about the eventually the bar situation. car, Hill and in all left the bar —Davis and Peet one and Hood They
{¶ 12} Hill on green Hill’s Hood and went to Hood’s house Jeep Sophia Cherokee. to the guns. Avenue to went into his house and returned vehicle pick up Hood Uzi, Hill Hood pistol, gloves. with an and latex and then drove semiautomatic Avenue, near standing driveway target to where saw Peet in a they Parkview house; Peet had they get Jeep. gun. let Peet into the back seat approached three waited in the car. When Davis and informed
{¶ 13} Peet them that the door of house was Hood and left the target open, back yards Hill through vehicle Hill on next street. then cut back to parked while masks; Hill, Hood, meet All had and wore hats or and weapons the others. Hill carried a handgun, long Davis latex carried a black Peet silver gloves. wore revolver, Hood Davis carried black and carried Uzi. pistol, money phones Hill that he and his cohorts took and from testified
{¶ 14} and argument At was an Peet— point, the victims. one there between Hood had accused Peet of stealing money pile from the of cash that was to be up divided. Davis broke the altercation that it to by announcing was time leave. outside; Hill ran the stairs up and he was outside when he heard gunshots from inside the house. He never saw Peet Hill leave the house. Hood left Hill’s Jeep while Davis went off another direction. Hill and Hood returned to Sophia drop guns. Hood’s house on off the
Hood went inside. Hood returned to the and the two Jeep, picked up Hill’s friend, Sparks, says William who Hill him had called for a ride to McDonald’s. Hill McDonald’s, let Sparks They drive. went to police where stopped arrested ultimately the three. The state not pursue charges against did Sparks. Testimony
Cellular-Phone-Record trial, At the prosecution Hood, Hill, introduced cell-phone records for and Davis that detectives claimed to have subpoenaed from cellular-phone companies. Detective Carlin described subpoena process: go county
We have to to a prosecutor. just go We can’t we say want these records. The phone companies They just have rules on that. don’t give them out. obtain an We authorization for a subpoena and then we to— respond * *
there is a subpoena person *. prosecutor’s provide office We numbers, them with the type up then the subpoenas, and based on their know, records and their with relationship phone companies, they numbers, prefix company what that subpoena go needs to to and they direct subpoena to that company. Carlin testified that through were obtained however,
process; subpoenas are not the record. purport Hood, Hill, to show cell-phone activity by and Davis night and early morning question. During Hill’s testimony, prosecution used the records to ask Hill about certain calls that were placed by phone his or phone. received his Those calls included ones made Hill’s cell versa, Davis’s cell and vice right some around the time of the *5 Indeed, crimes. Detective Carlin testified that Davis suspect first became a the phone robberies when the records were reviewed. There was also a call from one of the stolen cell phones phone; to Hill’s Hill claimed that Hood had called Hill’s number to see phone whether the stolen worked. Hill The records showed trying robberies; to contact just Davis several times before Hill and after the testified that Hood phone borrowed his to make those calls. use records its first to prosecution attempted the When the records lacked Hill, claiming that objected, of the defense
direct examination that prosecution argued The the authenticity. their verification or certification of to the rule and that hearsay exception fell under business-records records knowledge. his court determined verify Hill own The could records based as long Hill another testify that use the records to have prosecution could that Detective prosecutor the records. The stated witness would authenticate records, as to obtained them. Carlin, testify would how she subpoenaed who Carlin not authenticate business records argued that Detective could defense on the entity continuing objection record. another entered cross-examination, phone poke records to holes the defense used On instance, that Hill’s For records showed cell phone Hill’s version events. why at Hill calling explain 2:42 a.m. could not he phone phone was Hood’s cell when, Hill, to two men according called at a time would have few the same car. apart, feet cross-examination, his to the cell- objection After the Hood renewed
phone partner, after the related it would use Detective Carlin’s records state Veverka, trial at that Henry verify to the records. The court remarked Detective to my gut subpoena time: done the law research on it and reaction is “I’ve case to just say that basis. I Veverka have come guess Verizon on would it, That company. he issued how he’s familiar with business records testimony that would be proper.” would be the records through Detective Veverka testified that were obtained records, also his
subpoena. experience interpreting cell-phone He testified about mostly on-the-job detectives, experience through including which he learned other geographic information from determine locations cell using providers made, phone at the time calls based cell-tower data. Veverka testified upon with him at the of his arrest. Hood did have his cell time He issue, at records. logs days reviewed call as well as cellular-tower He 187, which tower for Hood’s testified as to State’s Exhibit contained records cell phone. which tower Hood was near when he used Those indicated phone. his records, that between 10:00 Through Veverka was able ascertain a.m.,
p.m. 3:00 calls were or received on last through phone. made Hood’s a.m.; a.m. calls was 2:42 the next call was at 6:24 He approximately those 15 vicinity to determine tower that Hood was in the through able containing he used another robbery phone. Through log his cell record calls from Veverka able to the dates and phone, to and Hood’s cell determine of the calls numbers involved. duration *6 records, his From examination of the Veverka concluded that Hood, Hill, and Davis were all in the at the time the vicinity targeted house robberies were committed. that although Defense counsel cross-examined Veverka. He admitted detectives,
he knew more about than interpreting cell-phone his fellow he did not any expertise phones being have cell or towers. He admitted unaware different towers have powers, company different and admitted that experts provide maps could and charts which towers which areas. showing serve The Veverka testified about were admitted into evidence. The documents to the jury sent contained some alterations made the detective—he wrote the phone suspects numbers of the on documents and color-coded records to highlight phone involving calls the different participants robbery. objected, stating Hood’s counsel that the records had not been verified record, as a business had been by any phone company, identified notes, contained the personal alleged detective’s and that the were not subpoenas in the record. The trial judge objection. overruled the and Appeal
Verdict jury The Hood on convicted one count of murder to pursuant R.C. 2903.02(B), “causing] the death another as a proximate result offender’s committing or to an attempting felony commit offense of violence that is first or degree,” second him acquitted on one count of murder defined 2903.02(A), Further, R.C. “purposely causing] the death of another.” jury convicted Hood nine kidnapping, counts of nine of aggravated robbery, .counts and one count aggravated burglary, two as well as firearm specifications count, each merged which were for purposes sentencing single specifica- into a tion. court The trial had granted acquittal Hood’s motion for two counts of two kidnapping and counts of aggravated robbery two of the victims failed to testify. The court ultimately sentenced Hood to of 21 aggregate years term to life prison. appealed Eighth his convictions to Appeals; District Court of
among things, other argued “by he the trial had allowing court erred phone records be to admitted into evidence being properly without authenticated in violation of the Confrontation Clause.” appellate court held “[assum- ing arguendo that these records were inadmissible and of appellant’s violative right him, to against confront the error any witnesses on the of the trial court in this regard was harmless.” State v. 8th Dist. No. 2010- ¶ Ohio-5477, 2010 WL 27. appellate court the harmless- applied error standard applicable constitutional error: harmless, must we be able can be considered constitutional error
Before Chap- doubt.” beyond it a reasonable that was harmless “declare belief *7 24, 824, 705. 18, 17 L.Ed.2d (1967), 87 S.Ct. v. 386 U.S. man California testimony unlawful no reasonable possibility Where there is will not be conviction, is harmless and therefore the error contributed to a 391, (1976), N.E.2d Ohio St.2d 358 Lytle for v. 48 grounds reversal. State (1978), on other 623, syllabus, grounds three of the vacated paragraph 910, 3135, 57 1154. L.Ed.2d 438 U.S. 98 S.Ct.
Id. the cell-phone court that the admission of appellate The determined 30}
{¶ judgment and affirmed of to Hood’s conviction did not contribute court. trial following proposition on the of jurisdiction this court sought 31}
{¶ law: not as business records without
Cell
records are
admissible
rec-
The
unauthenticated
proper authentication.
admission
exception violates the Confrontation
ords under the business records
to the United States Constitution.
Clause
the Sixth Amendment
discretionary
of a
upon
acceptance
is before this court
matter
32}
{¶
1411,
Law and
Confrontation Clause
Constitution, in its
to the United States
Confron-
The Sixth Amendment
Clause,
“to
of a criminal defendant
be confronted
preserves
right
tation
36, 53-54, 124
him.” In
v.
541 U.S.
against
Washington,
the witnesses
Crawford
(2004),
1354,
177
the United States
Supreme
158 L.Ed.2d
Court
S.Ct.
“admission of testimonial statements
stated that the Confrontation Clause bars
testify, and the
did
at trial
he was unavailable to
appear
a witness who
not
unless
key
is
had
for cross-examination.”
issue
prior opportunity
defendant had
statement: “It is the testimonial character
what constitutes
testimonial
that,
hearsay
subject
it
while
traditional
separates
from other
statement
evidence,
subject
is
the Confrontation Clause.”
hearsay
limitations
not
upon
(2006).
821,
2266,
Business and records are absent generally admissible confrontation rules, they qualify because under to the exception hearsay but having entity’s been created for the of an administration affairs because— and not for purpose establishing or some fact proving at trial — are testimonial. *8 Massachusetts, 305, 324,
Melendez-Diaz v. 557 U.S. 129 S.Ct. 174 L.Ed.2d (2009). 314 A Confrontation Clause can issue arise “if the regularly
{¶ conducted 35} activity business is the production of evidence for at trial.” at use Id. 321. In Melendez-Diaz, instance, for of items evidence at issue reports by were a company provided that analysis forensic on seized substances to establish wheth- er they illegal. But the regularly conducted of activity business cell-phone companies is
not production of for evidence use at trial. that The fact records are used a trial not does mean that the information in them produced contained for that purpose. Even cell-phone companies, response to a subpoena, prepare of types that normally customers, records are not prepared for their those still records contain that information cell-phone companies keep of ordinary course their Yeley-Davis, business. United States v. 632 F.3d (10th Cir.2011), 679 the defendant argued the documents produced by the cellular-phone company phone were not but merely records were instead exhibits prepared for especially prove trial a the commission of crime. The information contained exhibits similar to that contained exhibits issue in this case: “The phone provide information about each call made or received Ms. Yeley-Davis’s number, including call, the number making receiving call, number and the date and duration the call.” Id. at 677. rejected The court the defendant’s argument: Yeley-Davis
Ms. contends that the authenticating records and documents 5 are Exhibit testimonial because were prepared solely 146 * * * argues that Specifically, she prove conspiracy.
for use at trial bills, prepared espe- rather “exhibits but telephone were not the records * ** the phone correct that is Yeley-Davis for Ms. cially only trial.” mean, however, This not bills. does telephone Exhibit 5 are records in were not. litigation they for simply were created these records — purposes. Rather, for Verizon’s business kept these records Id. at 679. Green, (11th 573, 575 Likewise, in United States Fed.Appx. cell-phone from the defendant’s
Cir.2010), subpoenaed held that the court cell records and tower defendant’s] not testimonial: “[The carrier were 803(6) Fed.R.Evid. under qualified as business records information location nature, of the Amend- purposes for Sixth which, their are non-testimonial routinely are which recorded noted that “documents ment.” The court trial are non-testimonial for for a criminal other than purpose preparation Id. at 574-575. Amendment.” purposes Sixth court found to be testimonial laboratory reports Unlike the — U.S. —, Mexico, Bullcoming v. New S.Ct. Melendez-Diaz or (2011), records does culling configuration L.Ed.2d 610 results from undertaking process interpretation a scientific or require the already of information that exists only formatting It experimentation. reflects day-to-day business. company’s Records Authentication Business *9 that are not generally are business records cell-phone records Because testimonial, Clause are not the Confrontation for thus prepared litigation case, in is no assurance that admissibility. But this there does not affect their 803(6) the admission governs are Evid.R. the issue business records. records of business records: 803(6), a record must under Rule business qualify
“To
admission
(i)
regularly
must
one
the record
be
manifest four essential elements:
(ii) it must have been entered
regularly
activity;
in a
recorded
conducted
(iii) it
act,
condition;
must
event .or
knowledge
a
by
person
(iv)
transaction; and
a
of the
have
at or near
time
been recorded
by
of the record or
some ‘other
by
must
laid
the ‘custodian’
foundation
be
”
witness.’
qualified
¶ 171,
Davis,
business that fact affects their in regard status to the Confrontation If authenticated, Clause. the records had been we they could be sure that testimonial, is, that they were not for use at trial. prepared Without knowing prepared ordinary business, course of among the requirements 803(6), other of Evid.R. we cannot determine that they are nontesti- monial. We find thus admission the records case this constitutional error.
Harmlessness Review
In determining whether
admission of
harm-
{¶
records was
43}
less,
court
applied
below
the “harmless
beyond reasonable doubt” standard
¶
Hood,
{¶ 44} jurors did not have to believe that Hood the pulled trigger responsible to find him criminal act that in the participated find that he death; they just had to for Peet’s Hill’s eyewitness; co-conspirator Hill was death. Kareem led Peet’s was inside the house His of events at scene. version found DNA was testimony detailed He provided from the victims. testimony with consistent Hood. against And was was, itself, it for the defense. disastrous testimony Hill’s vehicle, in Hill’s on Hood’s DNA was found by other
corroborated evidence. as a contributor to not ruled out ashtray; Hood could be in the front cigar tip of Hill’s vehicle. passenger doors right and left rear interior DNA on the found the mix of DNA found ruled out as contributor Peet could be that Hood door, testimony corroborating Hill’s passenger left rear the interior in vehicle. together had Hill’s and Peet been lot parking Hill’s vehicle in the McDonald’s surrounded police When phones Also in the vehicle were cell robbery, Hood inside.
following cash was found cash. A amount of large as well as during robbery, stolen Hood’s possession. Upon conviction? play did Hood’s cell-phone role What and, at
review, probative of minimal value that the we conclude most, logs placed testified that cell-tower merely cumulative in effect. Veverka no to or from Hood But there were calls vicinity Hood in the the crime. crime. break-in morning 2:52 a.m. 6:24 a.m. on the between a.m., place vicinity do not him the at around 5:00 so the towers occurred the crucial time. be phone weakening records could even seen respect, one out its cross-examina- against pointed during Hood. As the defense
state’s case times Hill, Hill and Hood at when tion of the records reflect calls made between Hill, car. Hill no were, in Hill’s had according together men two why two would communicate explanation people car. both inside same no The records reveal Terrence Davis’s records were also introduced. up with Hill. does back Hill’s but there is contact This
contact between someone planning that conversations occurred testimony regarding and Davis. using Hill’s Hood inside house key places But the evidence—the evidence
{¶ 50} on the depend any way cell-phone crimes—does participating there, there, Hill and Hill placed DNA proves records. evidence Uzi, the robberies. wearing gloves, participating latex armed with Hill’s version of events inside large corroborated to a extent testimony Victim soon after spoils of the robberies containing house. Hood was the vehicle records did thus conclude the admission they occurred. We *11 not contribute to and Hood’s conviction that their was harmless beyond admission a reasonable doubt. We affirm therefore the decision of the court of appeals.
Judgment affirmed. Lundberg C.J., O’Connor, Stratton, JJ., O’Donnell, Lanzinger, concur.
Cupp, J., judgment only. concurs in
Kennedy, J., not participating.
Cupp, J., concurring judgment only. I concur in I judgment only. modify original would majority opinion suggested the memorandum in support filed by reconsideration amicus curiae Attorney General Ohio. opinion specifi- as modified should cally clarify that violations of the Confrontation Clause violations eviden- tiary hearsay rules are coextensive. Mason,
William D. Cuyahoga County Prosecuting Attorney, and Kristen L. Sobieski, Assistant Prosecuting Attorney, appellee. for
Timothy Defender, Young, Ohio Public and Melissa M. Prendergast, Assistant Defender, Public for appellant. DeWine, General,
Michael Attorney Schimmer, Ohio Alexandra T. Solicitor General, Solicitor, Elisabeth Long, A. Deputy Peterson, and Samuel Assistant General, Attorney curiae, urging affirmance amicus state Ohio. Appellant. Ohio, Appellee, Campbell,
The State of
[Cite as State v. Campbell, Ohio St.3d