The Akron Legal News

Justices hear arguments over nature of phone log

KEITH ARNOLD
Special to the Legal News
Published: November 8, 2011

Appearing impatient at times, justices of the Ohio Supreme Court Wednesday morning plodded through facts of a dispute arising from unauthenticated cell phone records admitted as evidence.

The court seemed receptive during the session of arguments at the Ohio Judicial Center to the state’s argument that the issue was evidentiary, amounting to harmless error.

Conversely, justices were reluctant to take the leap required to adhere to the appellant counsel’s notion that the defendant’s right to confront his accuser had been breached.

Justice Terrence O’Donnell challenged Melissa Prendergast, the assistant state public defender who argued on behalf of James Hood, on that very point.

“Isn’t that an evidentiary issue,” the justice pressed. “But you’re making the constitutional argument.”

According to a court summary, Hood and two other men — Kareem Hill and Terrance Davis — were charged with multiple counts of kidnapping, aggravated robbery and other offenses based on a home invasion incident in which they and a fourth man, Samuel Peet, allegedly robbed at gunpoint 11 persons who were participating in a late-night card game at the home of Sharon Jackson.

The victims of the robbery described the physical builds and clothing of the men to police and reported that they heard several gunshots as the robbers were leaving Jackson’s house. About two hours later police received a 911 call that the body of Peet, who had been shot, had been found in a yard near the site of the robbery.

Forensic evidence later established that Peet had been shot twice at close range in the hallway leading from Jackson’s basement to a basement door, and had left a trail of blood from Jackson’s house to the location where his body was found.

Hood and Hill, who had been apprehended by police with cell phones and other property of the robbery victims in their possession before Peet’s body was discovered, were subsequently charged with felony murder based on their involvement in the crime that resulted in Peet’s death, summary continued.

Davis was later identified as the fourth robber and charged with the same offenses.

Hill told police that Hood had argued with Peet over some of the proceeds of the robbery while the two men were following Hill out of Jackson’s home, and that he heard shots fired behind him as he emerged from a basement door.

Moments later Hill said Hood emerged from the house without Peet, and the two men fled in Hill’s vehicle. Hill subsequently entered into a plea bargain in which he agreed to plead guilty to a reduced charge of negligent homicide and one count of aggravated robbery in return for his testimony against Hood.

Davis also accepted a plea bargain to a reduced charge of involuntary manslaughter and a single count of aggravated robbery.

Hood was tried for the murder of Peet, 11 counts of kidnapping, 11 counts of aggravated robbery, single counts of aggravated burglary and having a weapon under disability, and firearm specifications relating to each of those offenses.

Hill testified as a witness for the state, describing the movements of the four robbers prior to and during the robbery and stating that he did not know who shot Peet.

He indicated, however, that Hood and Peet were together seconds before the shots that killed Peet were fired.

The state presented as evidence computer printouts that detailed the cell phone calls that had been placed and received by each of the four robbers prior to and during the events leading to the shooting of Peet. Hill testified that the records showed how he and his co-defendants had maintained contact with each other prior to the robbery, summary detailed.

Police detectives Henry Veverka and Kathleen Carlin testified that the records had been obtained through subpoenas issued to each of the defendants’ cell phone companies, and Veverka explained the meaning of the information contained in the printouts. No representatives from the cellular phone companies were called to testify.

The jury subsequently found Hood guilty of murder, nine counts of kidnapping, nine counts of aggravated robbery and one count of aggravated burglary, all with firearm specifications.

Hood appealed, asserting that his convictions should be vacated because the trial court should not have admitted the cell phone records proffered by the state without authentication by the cell phone service providers that they accurately reflected the calls made and received by Hood and the other defendants.

The 8th District Court of Appeals held that, even if the cell phone records were not properly authenticated, their admission by the trial court would amount to harmless error because, in light of the other evidence against Hood, those records had no significant impact on the jury’s findings of guilt, summary continued. Hood sought and was granted Supreme Court review of the 8th District’s ruling.

Prendergast argued that had the cell phone log been authenticated by an expert, the evidentiary mistake would not have occurred and Hood’s constitutional rights would not have been violated.

“However, all we know is that the documents were prepared by a party in response to law enforcement’s request,” she said.

An affidavit would have been sufficient, she told justices.

Conceding that the phone log was admitted in a procedurally incorrect manner, Assistant Cuyahoga County Prosecutor Kristin Sobieski, endured Justice Paul Pfeifer’s criticism of the oversight.

“So there is really nothing left for us to write,” Pfeifer began. “It appears to be a business record (and therefore non-testimonial). Can you explain to me how a trial judge and a prosecutor don’t know that rules of evidence? I mean, this is law school 101.”

Sobieski agreed that authenticating such evidence is the proper course before the justice interrupted.

“And the only course,” Pfeifer said.

“Even with that problem,” Sobieski recovered, “that is separate (from the proposition of law before the court).”

The case is State v. Hood, case No. 2010-2260.

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