The Akron Legal News

Justices: Cell phone records inadmissible hearsay when not properly authenticated

JESSICA SHAMBAUGH
Special to the Legal News
Published: December 10, 2012

The Supreme Court of Ohio ruled yesterday that cell phone records produced by a phone company are ordinarily admissible business records, but become inadmissible hearsay when they are not properly authenticated.

The 6-1 majority held that cell phone records were improperly admitted as evidence against James Hood in his trial for murder and aggravated robbery but that the error was harmless because of the volume of other evidence.

“However, in an instance where cell-phone records are not properly authenticated at trial, they are inadmissible as hearsay, and their admission violates a defendant’s rights under the Confrontation Clause. In this case, we find that the admission of the cell-phone records was error, but that such error was harmless beyond a reasonable doubt,” Ohio Supreme Court Justice Paul Pfeifer wrote for the court.

Case summary states that on Jan. 25, 2009, a party gathered at a Parkview Avenue home in Cleveland.

One attendee testified that Terrence Davis was in attendance, despite being absent from the group for more than a year and leaving several times throughout the night. Prior to the event, Davis met with three other men, including Hood, and told them about the party, according to case summary.

After walking some of the guests to their cars, the homeowner’s son returned to the house and found four men with masks and guns. He stated that he then ran to the basement yelling to warn the other guests.

Nine of the 11 victims testified that men in dark clothing with guns entered the basement, ordered some to remove their clothing, and took money and cell phones while holding them at gun point. A man was later found shot and killed in a nearby yard with two victim’s cell phones and $345 cash. The victims identified him as one of the robbers.

Hood and two other men were later arrested at a McDonald’s and police found two of the victims’ cell phones, cash and a mask in their car. One of the men arrested ultimately testified against Hood.

Cell phone records for Hood, Davis and a third man were admitted into evidence and a detective testified that, based on his examination of the records, all of the men were in the vicinity of the Parkview Avenue house at the time of the robbery. Hood objected and argued that the records should not be admitted because they were not identified by a phone company, verified as a business record, and no subpoenas showing they were properly obtained were on record.

The trial court overruled the objection and a jury ultimately convicted Hood of murder, aggravated robbery, aggravated burglary and firearm specifications. It sentenced Hood to 21 years to life in prison and he appealed to the 8th District Court of Appeals, claiming the cell phone records were not properly authenticated.

After the appellate court found the admission to be harmless, Hood appealed to the high court.

“Because 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,” Pfeifer wrote, noting that the hearsay rule may still bar such an admission.

The justices held that for a business record to be properly admitted, a foundation had to be established by a custodian of the record or a qualified witness. They determined that the detective who testified about the phone records was not a custodian of those records and was not a qualified witness because he was unable to testify regarding how the records came into existence.

“Thus, the cell-phone records in this case were hearsay; they were ‘statements ... offered in evidence to prove the truth of the matter asserted,’” Pfeifer stated.

In reviewing the impact of the inadmissible hearsay, the justices found the other evidence against Hood was “overwhelming.” They found the testimony against Hood from one of the co-conspirators was “disastrous” and was supported by Hood’s DNA found in the getaway vehicle, and his presence in the vehicle with the victim’s cell phones and cash.

The justices stated that the jury did not need to find Hood had killed his co-conspirator to convict him of murder, but instead only needed to find that he had participated in the criminal act leading up to the death.

“We thus conclude that the admission of the cell-phone records did not contribute to Hood’s conviction and that their admission was harmless beyond a reasonable doubt,” Pfeifer continued.

“We therefore affirm the decision of the court of appeals.”

Justice Terrence O’Donnell dissented from the majority and would have dismissed the appeal as being improvidently accepted.

Attempts to contact the Ohio Public Defender’s office and the Cuyahoga County Prosecuting Attorney were unsuccessful prior to press deadline.

The case is cited State v. Hood, case No. 2012-Ohio-5559.

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