Opinion
1-21-1415
06-28-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERMAINE DOUGLAS, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 16 CR 18439-03 Honorable Geary W. Kull, Judge, presiding.
JUSTICE VAN TINE delivered the judgment of the court. Justices Lampkin and D.B. Walker concurred in the judgment.
ORDER
VAN TINE JUSTICE
¶ 1 Held : The circuit court did not abuse its discretion in finding that certain evidence was properly authenticated and had proper foundation. The court also did not err in admitting cell site location information under the good faith exception to the exclusionary rule. The court did not abuse its discretion in admitting grand jury testimony at trial. The State presented sufficient evidence to meet its burden of proving beyond a reasonable doubt that the defendant committed first degree murder.
¶ 2 A jury found Jermaine Douglas guilty of first degree murder. On appeal, Douglas argues that the court's evidentiary rulings denied him a fair trial. He also contends that the State did not adduce sufficient evidence to meet its burden of proving beyond a reasonable doubt that Douglas committed first degree murder. For the following reasons, we affirm.
¶ 3 BACKGROUND
¶ 4 The State charged Douglas and his co-defendants, Comfort Robinson and Dejuyon Johnican, with several counts of first degree murder and conspiracy to commit murder in the shooting death of Michael Smith, who had agreed to testify for the State in a separate criminal case pending against Robinson. Additionally, the State charged Douglas with first degree murder for personally discharging the firearm. Prior to trial, the circuit court granted Douglas's motion to sever his trial from his co-defendants, so the case proceeded to trial on four counts of first degree murder against Douglas only.
¶ 5 The State adduced the following evidence at trial. Chicago police officer Eleanor Diggs testified that around 4 a.m. on March 8, 2015, she responded to a call at a night club in Chicago. When she arrived, multiple night club security guards waved her down. One of those guards was Michael Smith. The guards directed Diggs to Robinson, who was then taken into custody and charged with a gun offense. That case ultimately proceeded to trial. On January 27, 2016, Diggs and Smith were in court for Robinson's case, but Smith did not testify that day. Smith drove to his home in Brookfield, Illinois after court adjourned.
¶ 6 Jack Battaglia, Smith's neighbor who lived across the street, testified that, at approximately 12 p.m. on January 27, he observed a blue hatchback vehicle pull up next to a vehicle parked in front of Smith's home. After hearing a "number of shots go off', he yelled to his wife and they both exited their home to see a person slouched over in the parked vehicle, appearing to be dead. Battaglia approached the vehicle and confirmed that the person in the parked vehicle was Smith, and was indeed dead.
¶ 7 Around the same time, Michael Fahey, an attorney who lived across the street from Smith, was working in his home office when he heard "five or six *** pops." He then looked out the window to observe a man enter the passenger's side of a blue hatchback vehicle and noticed a person in the driver's seat of the same car. The blue vehicle then sped southbound away from the scene. Fahey exited his house to observe Smith lying in the driver's seat of his vehicle and glass strewn about the scene.
¶ 8 Brookfield police officer Daniel Roche responded to a call of shots fired. Upon arrival, Roche observed a deceased White male with multiple gunshot wounds sitting in the driver's seat of a gray sedan. He also observed multiple shell casings, including brass casings on the street, and one in the vehicle on the passenger's seat. Roche also testified that Fahey had told him that he observed a White or Hispanic male, 5'8" to 5'10", mid-twenties, with some facial hair, standing next to a blue sedan firing into a gray Mercury vehicle.
¶ 9 Brookfield police officers Kevin Hartnett and Brian Jelinik arrived at the scene after Roche and interviewed Battaglia and Fahey. Battaglia and Fahey described the vehicle as a blue Hyundai hatchback. Fahey remembered the first three characters of the license plate as "Z21". Hartnett and Jelinik were involved in the investigation throughout and were called to testify at trial.
¶ 10 Illinois State Police (ISP) officer Daniel Garcia conducted a crime scene investigation, the results of which were consistent with the above description of the crime scene. Garcia also attended Smith's autopsy on January 28, at which Dr. Matthew Fox recovered six fired projectiles from Smith's body. Dr. Fox determined that the victim suffered six gunshot wounds to various parts of his body, and he concluded that the cause of death was a homicide.
¶ 11 The State introduced video surveillance footage from a nearby intersection depicting a blue Hyundai hatchback with the license plate Z248616 at 11:50 a.m. on January 27. The video showed the blue Hyundai pull into a White Castle parking lot. Shortly thereafter, a black Cadillac with the license plate S945962 also turned into the lot. The black Cadillac was registered to a Kellyn Gillespie. The two cars were parked next to each other and left the lot at approximately the same time. Police located and questioned Gillespie, which led them to search for Johnican. The police later located Johnican, who was driving Gillespie's Cadillac, and interviewed him. They recovered a cell phone from him with the number 312-792-8630 (312 number) and released him.
¶ 12 After the interview with Johnican, the investigators went to a Walmart about five miles from the White Castle to acquire video surveillance. The video, which begins at approximately 12:10 p.m. on January 27, 2016, was published to the jury and depicted the following. Two Black males entered the Walmart. Hartnett identified a photograph of Robinson and testified that one of the two males appeared to be Robinson while the other appeared to be Johnican. In the video, the man who appeared to be Johnican is seen receiving a phone call at 12:20 p.m., and then handing the phone to Robinson. Robinson returns the phone to Johnican and the two men exit the Walmart.
¶ 13 During the investigation, Hartnett also learned that the registered owner of the blue Hyundai was Douglas's ex-girlfriend, Dovonna Daniels. On January 29, Jelinik interviewed Daniels at the police station, and they went through her phone together. While going through her phone with the number 773-971-0894 (773 number), they came across a contact named "Krazii" with the phone number 270-316-7259 (270 number). Hartnett recovered her phone, and he obtained call detail records for the 312, 773, and 270 numbers.
¶ 14 On January 30, the ISP recovered and processed her blue Hyundai, which revealed an insurance card in the center console that listed Jermaine Douglas as a named insured. Garcia swabbed various parts of the vehicle, including the steering wheel, gear shift, and interior driver's door handle. Forensic analysis determined that the driver's door area in the vehicle either contacted or was in the environment of a firearm when the firearm was discharged.
¶ 15 Following a high-speed chase on November 15, 2016, police arrested Douglas. Police arrested Johnican on the same day, and Robinson was arrested on November 18. Greg DiDomenic from the ISP's Forensic Science Center performed DNA analysis and determined that based on a buccal swab of Douglas, he was "included as a source of the DNA profile obtained from [the interior driver's door handle]."
¶ 16 Douglas's uncle, Lamont Robertson, testified before a grand jury that he had a conversation with Douglas about the homicide. According to Robertson's grand jury testimony, Douglas told him that he had performed a "hit" for a drug dealer on the west side for $10,000. Robertson relayed the same information to two FBI agents, who recorded the interview at Robertson's home, as well as to Assistant State's Attorney Daniel Crone. At the time of trial, however, Robertson stated he could not recall the substance of the conversation with Douglas, about which he had testified to the grand jury. He also did not recall speaking with the two agents, going to the grand jury with one of the agents, and giving a statement to Crone.
¶ 17 Dovonna Daniels, Douglas's ex-girlfriend, testified that she owned a blue Hyundai Excel with license plate Z248616 on January 27, 2016. She also identified Douglas in court. Daniels was shown a screenshot of messages indicating the name "Krazii" at the top, and the 270 number next to that name. The exchange was between that number and the 773 number, but Daniels could not, at time of trial, recall whether the 773 number was hers in January 2016. However, on January 29, 2016, Daniels gave an electronically recorded interview in which she confirmed that the 773 number was indeed hers at the time. A text message sent from the 773 number phone to the 270 number phone on January 25, 2016, reads "Krazii, love you Jermaine." During that prior interview, she also told police that "Krazii" was "Darrow Carter", and his number was the 270 number. "Darrow Carter" appears to be a pseudonym for a "Jermaine", as the Facebook Messenger data extracted from the 773 number phone showed a message from a "Dovonna Dora Daniels" Facebook account to a "Darrow Carter" Facebook account, stating "Wat Jermaine" on September 26, 2015. Kyle Young, an FBI special agent whose daily duties involved extracting data from digital devices such as phones, explained that he was also able to recover photographs linked with the Darrow Carter Facebook account from the 773 number phone. Daniels identified the photographs as depicting Douglas.
¶ 18 AT&T produced phone records for the 270 number, and T-Mobile produced phone records for the 312 number. Each provided a certification of authenticity from the relevant record keeper. FBI agent Karolina Mazur, an expert in the field of historical cellular telephone record analysis, testified that with call detail records and cellular tower location, an analyst can approximate the geographical location of a cellular device at a given time. In this case, Mazur performed an analysis of the 270 number phone's whereabouts and concluded the following. Between 11:00 a.m. and 11:30 a.m. on January 27, the 270 number phone connected to AT&T cellular towers multiple times near the criminal courthouse at 2650 South California Avenue (the courthouse where Smith would be called to testify in Robinson's case). Between 11:30 a.m. and 11:45 a.m., the phone connected twice to towers in the vicinity of Ogden Avenue and 26th Street, which, according to Mazur, was "indicative of the device moving west from the courthouse." At 11:46 a.m., the 270 number phone received a voice call from the 312 number, and the cell tower connection indicated the 270 number phone was moving southwest along Ogden Avenue. Mazur testified that the 270 number phone connected with the 312 number phone at approximately the same time that the blue Hyundai and black Cadillac were video recorded in or around the White Castle parking lot. At 12:09 p.m., the 270 number phone received a voice call from the 312 number phone. At that time, the 270 number phone was connected to a cellular tower south of the crime scene. According to Mazur, this would be consistent with the 270 number phone traveling south from the crime scene a few minutes before the 12:09 p.m. call. The State rested.
¶ 19 In his defense, Douglas called a single witness: Countryside Police detective Robert Sodt. Sodt testified that he and detective James Stern interviewed Fahey, who described the shooter as a White or Hispanic male (Douglas is a Black male). Fahey stated that the shooter was in his early 20s, between 5'8" and 5'10" tall, thin to medium build, with slightly curly, dark, medium length hair. On cross-examination, Sodt testified that Fahey provided a partial license plate identification. The defense rested.
¶ 20 Prior to trial, Douglas had filed several motions seeking to exclude evidence: (1) attributing the 270 number phone to Douglas, (2) of the 270 number phone's cellular site location information (CSLI), and (3) pertaining to gunshot residue found in the blue Hyundai. The circuit court denied all these motions.
¶ 21 The jury found Douglas guilty of first degree murder, and the court sentenced him to 65 years in prison. After the trial, Douglas unsuccessfully moved for a new trial. Douglas now appeals the court's denial of his pretrial motions and challenges the sufficiency of the evidence. He requests this court to either reverse his convictions or remand for a new trial.
¶ 22 ANALYSIS
¶ 23 On appeal, Douglas contends that (1) the 270 phone number, a Facebook Messenger message, and certain cellular phone records were not properly authenticated and admitted for jury consideration, (2) the CSLI was obtained without a warrant and therefore should not have been admitted, (3) Robertson's grand jury testimony was improperly admitted, and (4) the State did not prove beyond a reasonable doubt that Douglas committed the murder, asserting that the evidence is too circumstantial to meet the reasonable doubt standard that the State must prove.
¶ 24 1. Authentication Issues
¶ 25 We review the circuit court's evidentiary rulings for an abuse of discretion. In re Leona W., 228 Ill.2d 439, 460 (2008). "The threshold for finding an abuse of discretion is high. A trial court will not be found to have abused its discretion with respect to an evidentiary ruling unless it can be said that no reasonable man would take the view adopted by the court." Id. "Moreover, even where an abuse of discretion has occurred, it will not warrant reversal of the judgment unless the record indicates the existence of substantial prejudice affecting the outcome of the trial." Id. (quoting Holston v. Sisters of the Third Order of St. Francis, 165 Ill.2d 150, 170-71 (1995)).
¶ 26 Douglas challenges first the court's finding that the State properly authenticated the 270 phone number as belonging to him. Under the Illinois Rules of Evidence, authentication of evidence is a "condition precedent" to admitting a piece of evidence. Ill. R. Evid. 901(a) (eff. Sept. 17, 2019). This means that there must be "evidence sufficient to support a finding that the matter in question is what its proponent claims." Id. Evidence can be authenticated by direct or circumstantial evidence. People v. Towns, 157 Ill.2d 90, 104 (1993). If the court determines that the potential evidence, viewed in the light most favorable to the proponent, is "sufficient for a reasonable juror to conclude that the authentication of the particular item of evidence is more probably true than not", the evidence is admitted. People v. Watkins, 2015 IL App (3d), ¶ 36." 'The bar for authentication of evidence is not particularly high.'" People v. Watts, 2022 IL App (4th) 210590, ¶ 82 (quoting U.S. v. Vayner, 769 F.3d 125, 130 (2d Cir. 2014)). Important to note is that the authentication of evidence merely admits that evidence for consideration by the jury, which evaluates it for reliability. Id. The opposing party remains free to challenge the reliability of the evidence, minimize its importance, or to argue alternative interpretations of its meaning. Id.
¶ 27 At a pretrial hearing in this case, the State called Douglas's ex-girlfriend, Dovonna Daniels, to authenticate the 270 number phone and a Facebook messenger message, which the State sought to attribute to Douglas. By this point, over five years had passed since the homicide, and it is understandable and perhaps indeed expected that a person would not recall her exact phone number at the time, let alone the content of specific text messages. Still, Daniels was able to identify a photograph of Douglas associated with "Krazii" at the 270 number. Texts sent from the 773 number to the 270 number in the days prior to the homicide referred to the recipient as "Jermaine."
¶ 28 At trial, Daniels identified two photographs of Douglas. One photograph was associated with the 270 number and contact "Krazii", whom she referred to as "Jermaine" in outgoing text messages. The other photograph was associated with a "Darrow Carter" Facebook account. At least one message from the "Dovonna Dora Daniels" Facebook account to the "Darrow Carter" Facebook account referred to the recipient as "Jermaine."
¶ 29 Based on this, we cannot say that the court abused its discretion in finding that the 270 number and Facebook Messenger message more likely than not belonged to Douglas. The court properly admitted both for consideration by the jury. It was, of course, incumbent on the jury to decide how much weight to afford this evidence, based on the State's and Douglas's arguments and other evidence.
¶ 30 Douglas also argues that the phone records acquired from AT&T and T-Mobile were improperly admitted because the State did not call a witness from those companies to lay a foundation for the records. In support of this contention, Douglas cites an unpublished decision(People v. Reno, 2011 IL App (2d) 101116-U), which stands only for the proposition that a proponent seeking to admit phone records satisfies the foundation requirements by calling an employee of the phone company to testify how the records were stored and maintained. Id. ¶ 34. The Reno decision does not bar foundation by other means. Indeed, Rule 902 sets forth a list of self-authenticating documents. Ill. R. Evid. 902 (eff. Sept. 28, 2018). Rule 902(11) governs certified records of regularly conducted activity, and explains that a record is admissible if accompanied by a "written certification of its custodian or other qualified person" that the record "
If cited as persuasive authority, as Douglas does here, the order must have been filed after January 1, 2021. Ill. Sup. Ct. R. 23(e)(1) (eff. Feb. 1, 2023). Orders filed prior to that date may be cited only for supporting contentions of double jeopardy, res judicata, collateral estoppel, or law of the case. Id. Because Reno was decided in 2011, we cannot consider it as persuasive authority as to evidentiary issues.
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of these matters;
(B) was kept in the course of regularly conducted activity;
(C) and was made by the regularly conducted activity as a regular practice." Ill. R. Evid. 902(11)(A), (B), (C).
In this case, there is no dispute that both the AT&T and T-Mobile records were accompanied by a certificate of authenticity prepared by the relevant recordkeeper.
¶ 31 Douglas's reliance on People v. Brown, 2021 IL App (3d) 170621, is misplaced because Brown was decided under a prior version of Rule 902, which required additional foundational elements for this type of evidence. Id. ¶ 37.
¶ 32 As the court admitted these self-authenticating records that were accompanied by a proper certificate of authenticity, it did not abuse its discretion.
¶ 33 2. CSLI
¶ 34 Douglas argues that the CSLI in this case was obtained through an illegal search, so the circuit court should have granted his motion to suppress that evidence under the exclusionary rule. This error, he contends, contributed to the denial of a fair trial.
¶ 35 We apply a two-part standard of review in reviewing a circuit court's decision on a motion to suppress evidence. People v. Smith, 2016 IL 119659, ¶ 43 (citing People v. Luedemann, 222 Ill.2d 530, 542 (2007)). We defer to the circuit court's factual findings and reverse them only if they are against the manifest weight of the evidence. Id. However, we review de novo the circuit court's ultimate decision on whether suppression is warranted. Id.
¶ 36 The fourth amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. In Carpenter v. United States, 585 U.S. 296 (2018), the Supreme Court held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI." Id. at 310. Accordingly, the State "must generally obtain a warrant supported by probable cause before acquiring such records." Id. at 316. Under the exclusionary rule, courts are generally precluded from admitting evidence obtained in violation of the fourth amendment. People v. Sutherland, 223 Ill.2d 187, 227 (2006). However, a party seeking to admit unlawfully obtained evidence may invoke the good faith exception. Under section 114-12(b)(1) of the Code of Criminal Procedure, courts "shall not suppress evidence which is otherwise admissible in a criminal proceeding if the court determines that the evidence was seized by a peace officer who acted in good faith." 725 ILCS 5/114-12(b)(1) (West 2022). In other words, courts will admit excludable evidence where the police have acted in good faith.
¶ 37 In People v. Potts, 2021 IL App (1st) 161219, we considered whether, in light of Carpenter, a court must exclude CSLI evidence acquired pursuant to a grand jury subpoena prior to when Carpenter was decided. We concluded that the good faith exception applied, and such evidence would not be excluded. Id. ¶ 131. We reasoned that because the applicable case law at the time of the data acquisition "would have led officers to reasonably believe that a warrant was not required to collect [CSLI]", the good faith exception to the exclusionary rule applied. Id. ¶ 138. In other words, before Carpenter, grand jury subpoenas were an acceptable method of collecting CSLI.
¶ 38 Similarly, in this case, the State acquired CSLI pursuant to a grand jury subpoena issued over two years before the Carpenter decision. At that time of the grand jury subpoena, police would have reasonably believed that a warrant was not required to collect these types of data. Accordingly, the good faith exception to the exclusionary rule applies, and the circuit court did not err in admitting evidence collected pursuant to a grand jury subpoena.
¶ 39 3. Lamont Robertson's Grand Jury Testimony
¶ 40 In his supplemental brief, Douglas argues that the circuit court abused its discretion in admitting Lamont Robertson's grand jury testimony at trial. At trial, Douglas objected to the admission of this evidence on the specific ground that it was cumulative. On appeal, he argues that (1) the State may impeach its own witness (Robertson) only if his testimony has affirmatively damaged the State's case, which Douglas argues was not the case here, and (2) Robertson lacked personal knowledge, so admitting his testimony was error.
¶ 41 Our supreme court has "consistently held that specific objections waive all grounds not specified." People v. Eyler, 133 Ill.2d 173, 219 (1989) (citing People v. O'Neal, 104 Ill.2d 399, 407 (1984)). In Eyler, the defendant objected to certain testimony on relevancy grounds at trial. Id. On appeal, he objected under two new grounds: the testimony (1) was prejudicial and (2) constituted improper opinion testimony. Id. The court held that the new grounds were waived on appeal because the defendant objected only under relevancy at trial. Id.
¶ 42 Here, as in Eyler, Douglas raises two grounds-affirmative damage and personal knowledge-for the first time, while he specifically raised the cumulativeness ground at trial. Because Douglas specifically raised only cumulativeness at trial, he has forfeited all other grounds on appeal. Accordingly, he has forfeited his right to challenge the admission of Robertson's grand jury testimony on the grounds of affirmative damage and personal knowledge.
¶ 43 4. Sufficiency of the Evidence
¶ 44 Finally, we review Douglas's challenge to the sufficiency of the evidence. When reviewing a challenge to the sufficiency of the evidence, we determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Pizarro, 2020 IL App (1st) 170651, ¶ 29. We do not retry the defendant; rather, we defer to the circuit court's and jury's evaluation of the witnesses' credibility, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence. Id. The circuit court, and in this case, the jury, is in the best position to judge witnesses' credibility because it personally observes their testimony and demeanor. Id. The testimony of a single witness is sufficient to support a conviction if the witness's testimony is credible (People v. Gray, 2017 IL 120958, ¶ 36), and the State may prove its case by circumstantial evidence alone (People v. Brown, 2013 IL 114196, ¶ 49). We will not reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Hines, 2021 IL App (1st) 191378, ¶ 31.
¶ 45 In this case, the State carried the burden of proving beyond a reasonable doubt that Douglas personally discharged the firearm that killed Smith without lawful justification and knew his acts would cause Smith's death, or knew that such acts created strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(1), (a)(2) (West 2016); 730 ILCS 5/5-8-1 (West 2016).
¶ 46 As discussed above, all of Douglas's challenges to the admission of evidence fail. That is, the jury properly considered all the challenged evidence. In considering the totality of the evidence, we find that any rational trier of fact could have found that the State's evidence satisfied the elements of this conviction.
¶ 47 As noted, the State may prove its case through circumstantial evidence alone. In this case, the State adduced ample, corroborated circumstantial evidence supporting the jury's guilty verdict. One of Smith's neighbors, Battaglia, testified that he observed a blue hatchback vehicle pull up to Smith's vehicle across the street at around 12 p.m. on January 27. He then heard several shots fired and ran outside to find Smith deceased in his vehicle. Another neighbor, Fahey, testified that he too heard several shots around the same time, and observed a blue hatchback speed away from the scene.
¶ 48 The blue hatchback belonged to Douglas's ex-girlfriend, Daniels, who also testified at trial, linking a certain phone number to Douglas that was used to trace his whereabouts, through cellular towers, from the criminal courthouse where Smith was set to testify on the day of the homicide, to Smith's home in Brookfield, where he was found deceased in his vehicle. Surveillance video from a nearby intersection depicted the blue hatchback at a White Castle parking lot shortly before the homicide. Investigators conducted a buccal swab of Douglas and determined that his DNA was included in the DNA profile obtained from the interior driver's door handle of the blue hatchback. Moreover, the investigators analyzed gunshot residue, and they concluded that that area of the vehicle was in the environment of a firearm when the firearm was discharged. Finally, Douglas's uncle, Robertson, spoke to two agents and a state's attorney, and gave grand jury testimony discussing the content of his conversation with Douglas shortly after the homicide. He told the grand jury that his nephew, Douglas, had performed a "hit" for a drug dealer on the west side for $10,000.
¶ 49 Based on the foregoing, we find any rational trier of fact could have found Douglas guilty of first degree murder beyond a reasonable doubt. Accordingly, Douglas's challenge to the sufficiency of the evidence fails.
¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 52 Affirmed.