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Criminal Law FLASHPOINTS October 2020

Matthew R. Leisten, Winnebago County State’s Attorney’s Office, Rockford
815-319-4700 | E-mail Matthew R. Leisten

Trial Court Did Not Abuse Discretion in Admitting Facebook Messages as Evidence

In People v. Curry, 2020 IL App (2d) 180148, ¶59, the Second District Appellate Court held that Facebook records were properly admitted as self-authenticating business records and that their content was sufficiently authenticated by circumstantial evidence that suggested the defendant authored them. The Curry court distinguished its previous opinion on Facebook evidence in People v. Kent, 2017 IL App (2d) 140917, ¶¶102 – 103, 81 N.E.3d 578, 415 Ill.Dec. 56, which had held that the state did not provide sufficient corroborating evidence to conclude that the defendant created a Facebook post about murdering the victim.

The Second District’s cases in Curry and Kent, along with the First District’s opinion in People v. Brand, 2020 IL App (1st) 171728, ¶37 (holding that state presented sufficient evidence that authenticated that Facebook messages from certain account were sent by defendant), now provide attorneys and trial courts with a framework on how to admit or exclude social media evidence.

In Kent, the Second District Appellate Court noted that the following factors can be used to determine whether a social media post was authenticated:

  1. the purported sender admits authorship;

  2. the purported sender is seen composing the communication;

  3. business records of an Internet service provider or cell phone company show that the communication originated from the purported sender’s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone;

  4. the communication contains information that only the purported sender could be expected to know;

  5. the purported sender responds to an exchange in such a way as to indicate circumstantially that he was in fact the author of the communication; or

  6. other circumstances peculiar to the particular case may suffice to establish a prima facie showing of authenticity.

The Kent court cautioned that “[t]hese examples are intended only as a guide, and we emphasize that we express no view on what specific type and quantum of evidence would have been sufficient to authenticate the Facebook post and warrant its consideration by the jury.” 2017 IL App (2d) 140917 at ¶119.

In Curry, the defendant was charged with criminal sexual assault. 2020 IL App (2d) 180148 at ¶3. The state filed a motion in limine to admit Facebook messages that were alleged to have been made by the defendant to the victim. The state argued that the messages were self-authenticating to their source but not as to their content. 2020 IL App (2d) 180148 at ¶7. The trial court ruled that that the records would only be admissible to show where the messages came from and where they were sent to. The trial court said the contents of the messages would require victim authentication. Id.

During the trial, the victim testified that she woke up in her bedroom and saw the defendant on top of her with his penis inside her vagina. The victim told her mother what had happened, and the victim called the police. 2020 IL App (2d) 180148 at ¶¶8 – 9.

The victim explained that she had a Facebook account for four years and was a Facebook friend with the defendant for two years. The victim and the defendant communicated through the Facebook messenger application before the incident. The victim explained that she was familiar with the defendant’s Facebook messages because they included his name and his photo. The defendant also called her by her nickname, Lay, when they messaged each other. The victim identified certain Facebook messages as fairly and accurately depicting the messages that she had received from the defendant on the day of the incident. 2020 IL App (2d) 180148 at ¶10.

The victim also testified that the defendant sent her a Facebook message after the incident asking her not to sign the complaint and she would never see him again if she told the police that her report was false. 2020 IL App (2d) 180148 at ¶11. The police had the victim sign into her account where they observed messages from an account with the defendant’s name. 2020 IL App (2d) 180148 at ¶20.

At trial, a detective identified records that he had received from Facebook pursuant to a search warrant and also identified a letter from Facebook, which authenticated the records that were sent for the search warrant. 2020 IL App (2d) 180148 at ¶21. The trial court allowed the records into evidence after finding that the victim’s testimony provided additional foundation for their admission. 2020 IL App (2d) 180148 at ¶23.

On appeal, the appellate court found that the Facebook records were properly admitted as self-authenticating business records. The court noted that there was a written certification of the records from a qualified person from Facebook. The certification stated that the records were made and kept by Facebook in the course of its regularly conducted activity and part of its business practice (as required by Illinois Rule of Evidence 803(6)). 2020 IL App (2d) 180148 at ¶52.

The appellate court distinguished its previous opinion in Kent, supra. In Kent, the appellate court held that the State failed to introduce any direct or circumstantial evidence that the defendant used the Facebook account “Lorenzo Luckii Santos,” which had a photograph that resembled the defendant, to post “its my way or the highway . . . leave em dead n his driveway.” 2020 IL App (2d) 180148 at ¶54, quoting Kent, supra, 2017 IL App (2d) 140917 at ¶57. The victim in Kent was shot in his driveway. The defendant did not admit to creating the Facebook profile or post, and there was no testimony that suggested that he did create the profile and post. 2020 IL App (2d) 180148 at ¶52. The Kent court noted that social media accounts could be easily fabricated and that the defendant’s nickname and photograph that resembled him on the post were insufficient authentication for the post. 2020 IL App (2d) 180148 at ¶54.

However, in contrast to Kent, the Curry court concluded that the circumstantial evidence in its matter properly authenticated that the defendant sent the Facebook messages to the victim. The court noted that the messages contained information that only the defendant would have known, they used the victim’s nickname, and the messages indicated that the messages contained personal knowledge of the incident — such as knowing the victim and her family and knowing that the victim had reported the incident to the police. Since only a small amount of time had passed since the incident and the defendant’s arrest, the sender’s knowledge about the incident was unlikely to have come from another source. 2020 IL App (2d) 180148 at ¶57. Accordingly, the messages were properly authenticated and admitted. 2020 IL App (2d) 180148 at ¶59.

Social media evidence has become more common in recent years in domestic violence and shooting cases. Prosecutors and defense attorneys can now more easily analyze any favorable social media evidence under the Kent and Curry decisions to determine if the evidence will be admissible.

For more information about criminal law, see FEDERAL CRIMINAL PRACTICE (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.


Matthew Chivari, Student at DePaul University College of Law

Moving from Punishing Juvenile Offenders to Rehabilitation

Juvenile justice in the first half of the 20th century was marked by procedural informality as courts, operating under the doctrine of parens patriae, sought to shield juvenile offenders from the far more public nature that defined adult criminal court proceedings. This informal approach reflected the belief that the juvenile system should primarily rehabilitate juvenile offenders, rather than punish them.

However well intended this paternalistic platform may have been, it came at the expense of the juvenile offender’s due-process rights. The Supreme Court’s decision in In re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428 (1967), ignited a new era that constitutionalized the juvenile system by extending Fourteenth Amendment protections to juvenile offenders. These protections included adequate notice of charges, the right to counsel, the opportunity to confront and cross-examine witnesses, and the privilege against self-incrimination. Id.

In 1970, the Supreme Court continued this trend, holding that the beyond-a-reasonable-doubt standard must be applied to juveniles when establishing guilt of criminal charges. In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1970). By the 1970s, juvenile offenders were afforded nearly every due-process right granted to their adult counterparts, with the exception of the Sixth Amendment guarantee of a trial by jury. McKeiver v. State of Pennsylvania, 403 U.S. 528, 29 L.Ed.2d 647, 91 S.Ct. 1976 (1971).

In the mid-1980s, the era of constitutionalization gave way to the “tough on crime” movement that swelled incarceration rates of both adult and juvenile offenders alike. As the rate of juvenile incarceration rose, so too did the severity of their sentences. Sentences of life imprisonment without the possibility of parole were not uncommon. Juvenile offenders even received the death penalty in many states. It was not until 2005 that the U.S. Supreme Court banned capital punishment of juvenile offenders, holding that the death penalty for individuals under the age of 18 violated the Eighth and Fourteenth Amendments. Roper v. Simmons, 543 U.S. 551, 161 L.Ed.2d 1, 125 S.Ct. 1183 (2005). Roper reversed the pendulum swing of the “tough on crime” era, leveraging the Eighth Amendment to reconsider our nation’s approach to juvenile justice. Illinois has taken this reconsideration a giant step further, as evidenced by our state Supreme Court’s recent holding in People v. Buffer, 2019 IL 122327, 137 N.E.3d 763, 434 Ill.Dec. 691.

The Eighth Amendment and the Illinois Proportionate Penalties Clause

The Eighth Amendment to the U.S. Constitution prohibits “cruel and unusual punishments” (U.S.CONST. amend. VIII, §1) and applies to the states through the Fourteenth Amendment. Roper v. Simmons, 543 U.S. 551, 161 L.Ed.2d 1, 125 S.Ct. 1183, 1190 (2005). “Inherent in that prohibition is the concept of proportionality.” People v. Holman, 2017 IL 120655, ¶33, 91 N.E.3d 849, 418 Ill.Dec. 889. The Illinois Supreme Court expounded further on the concept of proportionality, holding that the “ban of excessive punishment flows from the basic precept that criminal punishment should be graduated and proportioned both to the offender and the offense.” Buffer, supra, 2019 IL 122327 at ¶15.

The concept derives from the Illinois Constitution’s Proportionate Penalties Clause, which states that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” [Emphasis added.] ILL.CONST. art. 1, §11. Nearly a decade before Gault, the Supreme Court urged courts to look beyond the historical status quo “to ‘the evolving standards of decency that mark the progress of a maturing society’ (Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)) to determine whether a punishment is so disproportionate as to be cruel and unusual.” Buffer, supra, 2020 IL 122327 at ¶15. Progress, here, seemed to take the form of a renewed call for the rehabilitation of youthful offenders as a core objective of juvenile justice.

The Supreme Court’s Jurisprudence Since Roper

Although Roper set a new course for juvenile justice, five key decisions following Roper maintained this course, gradually reducing juvenile sentencing extremes along the way.

With the death sentence off the table, the Supreme Court next considered whether a life sentence without the possibility of parole for a juvenile offender convicted of a non-homicidal offense violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Five years after Roper, the Supreme Court decided Graham v. Florida, 560 U.S. 48, 176 L.Ed.2d 825, 130 S.Ct. 2011 (2010). Under a plea agreement, a Florida trial court sentenced 16-year-old Terence Graham to three years’ probation for armed burglary and attempted armed robbery but withheld adjudication of guilt. 130 S.Ct. at 2018. Less than six months later, Graham was arrested for armed home robbery. Id. Having violated his parole, Graham was summarily convicted of all three crimes and sentenced to life imprisonment without the possibility of parole. The appellate court affirmed, the Florida Supreme Court denied review, and the Supreme Court granted certiorari. 130 S.Ct. at 2020. The Supreme Court considered four possible reasons for imprisonment — retribution, deterrence, incapacitation, and rehabilitation — and found that none justify a sentence of life imprisonment without the possibility of parole for a juvenile offender convicted of a non-homicidal offense. 130 S.Ct. at 2028 – 2029. Elaborating, the Graham Court emphasized:

The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person’s value and place in society. This judgment is not appropriate in light of a juvenile nonhomicide offender’s capacity for change and limited moral culpability. . . . For juvenile offenders, who are most in need of and receptive to rehabilitation . . . the absence of rehabilitative opportunities or treatment makes the disproportionality of the sentence all the more evident. 130 S.Ct. at 2030.

In reversing, the Graham Court further reasoned that the state “need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” 130 S.Ct. at 2034.

Two years after Graham, the Supreme Court extended the prohibition of life imprisonment without the possibility of parole to juvenile homicide offenders. In Miller v. Alabama, 567 U.S. 460, 183 L.Ed.2d 407, 132 S.Ct. 2455 (2012), the Supreme Court addressed the question whether a life sentence without the possibility of parole for a 14-year-old offender convicted of murder violates the Cruel and Unusual Punishment Clause. 132 S.Ct. at 2460. Miller reasoned that juvenile offenders are constitutionally different from adults when it comes to sentencing, for three reasons — first, juveniles lack maturity and a developed sense of responsibility; second, they are more susceptible to negative influences and external pressures from both family and peers; and third, a juvenile’s character is still forming and is not yet fixed, when compared to their adult counterparts, and juvenile behavior is less likely to be evidence of “irretrievable depravity.” 132 S.Ct. at 2464, quoting Roper, supra, 125 S.Ct. at 1195. For these reasons, mandatory life sentences without the possibility of parole for juvenile offenders of murder necessarily precluded sentencing courts from considering the relevant characteristics of youth. 132 S.Ct. at 2467.

Accordingly, Miller established a test to determine whether a juvenile defendant’s murder conviction warranted a life sentence without parole. The defendant must show that “(1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence.” Buffer, supra, 2019 IL 122327 at ¶27. Applying this test to the facts, Miller held that a life sentence without the possibility of parole for a 14-year-old offender convicted of murder does, in fact, violate the Eighth Amendment’s prohibition against cruel and unusual punishment. 132 S.Ct. at 2475.

The Illinois Supreme Court’s Juvenile Sentencing Evolution

The first of three Illinois decisions continuing reform on extreme juvenile sentencing expanded the applicability of Miller. In People v. Davis, 2014 IL 115595, 6 N.E.3d 709, 379 Ill.Dec. 381, a juvenile offender was convicted of first-degree murder and related offenses committed at the age of 14. After the Cook County Circuit Court denied the defendant leave to file a fourth postconviction petition, the appellate court vacated the defendant’s sentences and remanded for resentencing. The Illinois Supreme Court held Miller created a new substantive rule that must be applied retroactively on postconviction review. Davis reasoned that although §122-1(f) of the Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., generally provides for the filing of only one postconviction petition, a defendant may be granted leave to file successive petitions if the defendant can show “cause and prejudice” for failing to raise a claim in an initial petition. 2014 IL 115595 at ¶14. “Miller’s new substantive rule constitutes ‘cause,’ ” the Davis court held, “because it was not available earlier to counsel . . . and constitutes prejudice because it retroactively applies to defendant’s sentencing hearing.” [Citation omitted.] 2014 IL 115595 at ¶42.

In People v. Reyes, 2016 IL 119271, 63 N.E.3d 884, 407 Ill.Dec. 452, the second Illinois decision in the trio, the Illinois Supreme Court held that a mandatory minimum aggregate sentence of 97 years’ imprisonment violates the proportionate penalties clause of the Illinois Constitution and amounts to a de factomandatory life sentence, violating the Eighth and Fourteenth Amendments. The Reyes Court reasoned that “[a] mandatory term-of-years sentence that cannot be served in one lifetime has the same practical effect on a juvenile defendant’s life as would an actual mandatory sentence of life without parole — in either situation, the juvenile will die in prison.” 2016 IL 119271 at ¶9.

The last of the Illinois cases leading up to Buffer is People v. Holman, 2017 IL 120655, ¶40, 91 N.E.3d 849, 418 Ill.Dec. 889, in which the Illinois Supreme Court held that “[l]ife sentences, whether mandatory or discretionary, for juvenile defendants are disproportionate and violate the eighth amendment, unless the trial court considers youth and its attendant characteristics.” Although Holman provides a qualified ban on juvenile life sentences, it stops short of a categorical one. 2017 IL 120655at ¶51. The Holman court reasoned that the advisability of juvenile life sentences was “a question for legislators” and their constitutionality a “question for judges.” Id. Following Holman, there was just one last hurdle to surmount.

Buffer’s Bright-Line Test

After Holman, the only remaining unanswered issue was whether life sentences for juveniles were outright unconstitutional. The Illinois Supreme Court recently answered this question in its seminal Buffer decision, in which a juvenile offender convicted of murder filed for postconviction relief, claiming that his 50-year prison sentence violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Illinois Supreme Court ultimately reaffirmed the applicability of the Miller test to any “life sentence, mandatory or discretionary, natural or de facto.” 2019 IL 122327 at ¶27. In applying the Miller test, the Buffer Court charted a course most courts actively avoid and drew a categorical, bright-line rule. Reasoning that a juvenile prison sentence must allow for “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” the Buffer Court held that “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the Eighth Amendment.” [Emphasis added.] 2019 IL 122327 at ¶41, quoting Miller, supra, 132 S.Ct. at 2469.

Buffer’s Emerging Legacy

Buffer has ignited a new wave of successive postconviction petitions filed by juvenile offenders rightfully leveraging the bright line drawn by Buffer in their favor. Two recent cases demonstrate this emerging trend.

On July 13, 2020, the Third District Appellate Court decided People v. Gregory, 2020 IL App (3d) 190261. The juvenile defendant convicted of first-degree murder and concealment of homicidal death filed an amended postconviction petition arguing that his sentence of 45 years imprisonment was an unconstitutional de facto life sentence under Buffer that violated the proportionate penalties clause of the Illinois Constitution. The appellate court agreed, holding that the sentencing court failed to properly consider the defendant’s youth. 2020 IL App (3d) 190261 at ¶42.

Less than a month later, on August 7, 2020, the First District appellate court decided People v. Perez, 2020 IL App (1st) 153629-B, in which a juvenile defendant’s 53-year sentence for first-degree murder was deemed a de facto life sentence under Buffer. The First District reasoned that “there was no evidence or argument at sentencing, beyond mention of defendant’s gang affiliation, addressing familial or peer pressure.” 2020 IL App (1st) 153629-B at ¶46. The Perez Court noted that “while defense counsel argued defendant’s age as it relates to rehabilitative potential or recidivism, the court’s sentencing remarks focused on defendant’s responsibility for his action with no reference to rehabilitative potential.” Id. Having determined that the trial court failed to properly conduct the analysis or apply the Miller and Holman factors, the court vacated the defendant’s sentence and remanded for resentencing in accordance with Miller, Holman, and Buffer.

Gregory and Perez are very likely to be the first two cases of many that invoke Buffer in the same manner. On a larger scale, such decisions add to the momentum that further pushes the juvenile justice system away from the retributive nature of the “tough on crime” era and toward a deeper realization for the need to rethink the importance of juvenile offender rehabilitation.

For more information about criminal law, see FEDERAL CRIMINAL PRACTICE (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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