State v. Hood

2012 Ohio 6208, 984 N.E.2d 1057, 135 Ohio St. 3d 137
Ohio Supreme Court·Decided December 31, 2012·No. 2010-2260·Published·Cited by 72 cases

Opinions

Pfeifer, J.

[138] Reconsideration

{¶ 1} This matter is before us upon a motion for reconsideration filed by appellee, the state of Ohio. S.Ct.Prac.R. 11.2(A)(4) allows a motion for reconsideration of a decision on the merits of a case. “We have invoked the reconsideration procedures set forth in S.CtPrac.R. XI to correct decisions which, upon reflection, are deemed to have been made in error.” State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1995). See also Buckeye Community Hope Found, v. Cuyahoga Falls, 82 Ohio St.3d 539, 541, 697 N.E.2d 181 (1998).

{¶ 2} The state does not ask this court to reconsider the judgment in this case, but instead requests that we modify certain portions of the opinion that were not outcome-determinative. For the most part, the state’s concerns center around the statement in the original opinion, “A hearsay violation itself violates the Confrontation Clause, and thus requires a heightened harmless-error analysis.” State v. Hood, 134 Ohio St.3d 595, 2012-Ohio-5559, 984 N.E.2d 929, ¶ 40. We agree that that statement and supporting language was overbroad and was made in error. Upon reconsideration, we modify the opinion to clarify that it is not the hearsay nature of the cell-phone records at issue that made their admission constitutional error. Instead, it was their lack of authentication as business records that made their admission unconstitutional under the Confrontation Clause, because without that authentication, the records cannot be considered nontestimonial. We do not agree with the state that the trial court’s error in admitting the unauthenticated records was not constitutional error.

{¶ 3} Accordingly, we vacate our decision in State v. Hood, 134 Ohio St.3d 595, 2012-Ohio-5559, 984 N.E.2d 929, and replace it with the opinion issued today on reconsideration.

Merit Opinion

{¶ 4} The issue we address in this case is whether, in general, cell-phone records produced by a cell-phone company constitute testimonial evidence that implicates a defendant’s right to cross-examine a witness under the Confrontation Clause of the Sixth Amendment to the United States Constitution. We find that ordinarily such records, if properly authenticated, are business records and are not testimonial. However, in this case, the cell-phone records were not properly authenticated at trial, and their admission violated the defendant’s rights under the Confrontation Clause. We hold that the admission of the cell-phone records was error, but that that error was harmless beyond a reasonable doubt.

Factual and Procedural Background

{¶ 5} In the early morning hours of January 26, 2009, defendant-appellant, James Hood, allegedly was one of four men who burst into a Cleveland home and [139] 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. As part of the proof to establish 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. 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

{¶ 6} In the late evening of January 25, 2009, a group of friends gathered in the basement of Sharon Jackson’s home on Parkview Avenue in Cleveland to play cards and celebrate the birthdays of Denotra Jones and her son, Rodney. Among the guests that evening was one of the alleged co-conspirators, Terrence Davis, also known as “TD.” According to Rodney Jones, Davis’s presence was unusual: Davis had not joined the group in over a year, and he left the party several times throughout the evening. TD had met earlier that day with Samuel Peet and the other co-conspirators — Hood and Kareem Hill — and told them about the party.

{¶ 7} Jerrell Jackson, homeowner Sharon Jackson’s son, was the first person to be confronted by the assailants. He had walked some guests to their cars at around 5:00 a.m.; when he went back inside, there were four men in the hallway wearing masks and carrying guns. Jerrell noticed that one gun was an Uzi. Jerrell ran down into the basement, yelling a warning to everyone. Sharon Jackson, who had fallen asleep on a couch in her basement, was awakened by the commotion; she saw Jerrell being followed into the basement by four men wearing masks and carrying guns. She described the guns as two 9 mm handguns, one Uzi, and one handgun with a long chrome barrel. The robbers made the victims strip, then searched the clothing and took money and cell phones.

{¶ 8} Nine of the eleven victims testified at trial. They described the same basic facts — men in dark clothing, wielding guns, stormed into the basement, ordered some of the victims to remove their clothes, and stole money and cell phones from them at gunpoint. Some witnesses differed on the number of assailants, from two to four, but the victims were robbed in two separate rooms of the basement. At some point, gunshots were heard. One of the co-conspirators, Peet, was later found dead nearby, in a yard several houses away. Several of the victims were able to identify him as one of the assailants due to his distinctive coat. He had been shot twice from close proximity; on his body were two cell phones belonging to victims and $345 in cash.

[140] {¶ 9} Earlier that morning, around 4:00 a.m., police received a report of a male pointing a gun at another male in the area of East 104th Street and Sophia Avenue, near where Hood lived. En route to the scene, the officers observed a green Jeep Cherokee stopped in the middle of Parkview Avenue with its lights on. As the officers approached, the Jeep sped away. The officers pursued the Jeep and were able to get a partial plate number, “EOF,” before losing sight of the vehicle. The same officers were called to help investigate the Parkview Avenue break-in and were told that a sport utility vehicle was involved in the crime. Shortly after the break-in, a green Cherokee, license plate number EOF 7079, was spotted at a local McDonald’s. Cash, a mask, and two victims’ cell phones were found inside. Hood, his co-defendant Kareem Hill, and William Sparks had been removed from the vehicle and arrested. At the time of his arrest, Hood had $411.25 in cash in his possession. Hill eventually testified against Hood.

Kareem Hill’s Testimony

{¶ 10} Hill initially lied to police and denied any involvement in the crimes. But when a latex glove found at the scene tested positive for Hill’s DNA, Hill pleaded guilty to reduced charges and agreed to testify truthfully against Hood.

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State v. Hood, 2012 Ohio 6208, 984 N.E.2d 1057, 135 Ohio St. 3d 137 (Ohio 2012).

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