                                    2018 IL App (1st) 151888

                                                                               SIXTH DIVISION
                                                                                  March 30, 2018

                                          No. 1-15-1888


                                         IN THE

                              APPELLATE COURT OF ILLINOIS

                                FIRST JUDICIAL DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,                        )   Appeal from the Circuit Court of
                                                            )   Cook County.
       Plaintiff-Appellee,                                  )
                                                            )
v.                                                          )   No. 14 CR 15650
                                                            )
JUAN RAMOS,                                                 )
                                                            )   Honorable Gregory Robert Ginex,
       Defendant-Appellant.                                 )   Judge Presiding.


       JUSTICE DELORT delivered the judgment of the court, with opinion. 

       Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and 

       opinion. 


                                            OPINION

¶ 1    After a joint jury trial with co-defendant Saul Sandoval, defendant Juan Ramos was

convicted of armed robbery with a firearm and sentenced to 29 years in prison. 1 Critical to the

State’s case was historical cell site analysis (HCSA) evidence which was presented to the jury in

the form of testimony from a detective. We find that this evidence was inadmissible hearsay and

was prejudicial. We reverse defendant’s conviction and remand for a new trial.

¶ 2                                     BACKGROUND

¶ 3    In June 2015, the State charged defendant by indictment with, among other things, one

       1
       Sandoval filed a separate appeal docketed as case No. 1-15-1887. See People v.
Sandoval, 2018 IL App (1st) 151887-U.
1-15-1888



count of armed robbery. 720 ILCS 5/18-2(a)(2) (West 2014). The gist of the indictment was that

defendant robbed Francisco Vivas of jewelry while brandishing a firearm. The case proceeded to

a jury trial.

¶ 4     At trial, 71-year-old Francisco Vivas testified that on August 3, 2014, he went to Swap-

O-Rama, a flea market located at 42nd Street and Ashland Avenue in Chicago, to sell jewelry.

Around 4:30 p.m., Vivas left and drove to the Berwyn Fruit Market, a grocery store on Harlem

Avenue in Berwyn, Illinois. To travel to the Berwyn Fruit Market from Swap-O-Rama, Vivas

took Ashland Avenue to Interstate 55 (I-55), exited I-55 at Harlem Avenue, and proceeded north

on Harlem Avenue until reaching the destination. After completing that stop, Vivas drove to

Kathleen Snyder’s house in Riverside, Illinois, some 1.5 miles away from the Berwyn Fruit

Market, to drop off some jewelry.

¶ 5     When Vivas arrived at Snyder’s house, two men approached him from behind and

attacked him. One of the men pulled Vivas’s shirt over his head, and the other took his car keys,

opened his car, and removed several bags containing gold jewelry. At that point, Snyder came

outside and saw that Vivas was under attack. Vivas heard Snyder yelling and saw one of the men

point a gun at her and tell her to “shut up.”

¶ 6     Kathleen Snyder testified that she saw Vivas pull into her driveway around 5:30 p.m.

When she walked outside to greet him, she heard him saying “call the police” and saw a person,

whom she later identified at trial as defendant, beating Vivas’s head against one of her car’s tires.

Snyder also saw another man, whom she later identified at trial as Sandoval, a little further away

“dancing around or something.” Snyder testified that the attackers had t-shirts covering their

faces like masks, so that only their eyes and the middle portion of their faces were visible.

Snyder asked defendant and Sandoval what they were doing. In response, according to Snyder,




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Sandoval pointed a gun at Snyder and said, “[t]his doesn’t concern you, bitch.’ ” They fled in a

van shortly thereafter.

¶ 7    Two days later, Vivas and Snyder went to the police station to view a lineup. When the

subjects were first presented, their faces were covered with t-shirts so that only their eyes and the

middle portion of their faces were visible, similarly to how the attackers appeared during the

robbery. However, Snyder told a police officer that one of the suspects had a goatee and asked

that the suspects lower their masks. Snyder then saw that one of the men had a goatee. That man

was defendant, whom Snyder informed the police was the person she saw assaulting Vivas.

Snyder later identified Sandoval as the person who pulled a gun on her based on the fact that he

had “goofy” eyes. Vivas did not make an identification because his head had been covered by his

own shirt during much of the attack. However, on August 8, Vivas identified two pieces of

jewelry—an earring and a bracelet—that the police recovered during their investigation which he

claimed were taken during the robbery.

¶ 8    Detective Frank Lara testified that he worked for the Riverside police department and

that he assisted with the robbery investigation. Detective Lara testified that he interviewed

Snyder at her home. After that conversation, he explained that he “was looking for two male

Hispanics” who had t-shirts wrapped around their heads and faces and “were between 5’8” and

5’10” and *** had medium builds.”

¶ 9    The following day, Detective Lara went to the Berwyn Fruit Market. There, he met with

the store manager and viewed surveillance footage of the store’s parking lot. The video showed

that at 5 p.m., a white Acura driven by Vivas pulled into the lot and parked. Vivas exited his

vehicle and entered the store. A silver SUV then drove down the parking aisle towards the store,

passed Vivas’s car, and entered the parking lot of an O’Reilly’s Auto Shop located across the




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street, at which point the SUV parked. Twenty minutes later, Vivas returned to his car, left the

parking lot, and began traveling North on Harlem Avenue. When Vivas passed O’Reilly’s Auto

Shop, the silver SUV exited the parking lot and began traveling north on Harlem Avenue.

¶ 10   Detective Lara checked the SUV’s license plate number and learned that it was registered

to Rene Abeja. That lead ultimately led Detective Lara to a residence at 4909 West 30th Street in

Cicero, Illinois, where Detective Lara set up surveillance with another police unit. Detective Lara

observed three people emerge from a house, walk into an alley, and load furniture and boxes into

a white truck. Two of the individuals, whom Detective Lara later identified as defendant and

Sandoval, were male Hispanics, between 5’8” and 5’10”, had medium builds, and had shirts

wrapped around their heads. A short while later, Detective Lara observed the silver SUV which

he had seen on the surveillance footage emerge from the alley, drive past Detective Lara’s car,

and park. As the SUV passed Detective Lara, he saw Abeja in the driver’s seat. At that point,

Detective Lara pulled behind the SUV, activated his emergency lights, and detained Abeja. At

the same time, officers from the other surveillance unit went into the alley and detained

defendant, Moya, and Sandoval. Custodial searches produced a credit card, cell phone, and a

gold earring from defendant, and a cell phone from Sandoval.

¶ 11   On August 5, 2014, Detective Lara searched the SUV and recovered a clear necklace and

a gold bracelet. Vivas identified the bracelet as belonging to him. Later in the investigation,

Detective Lara went to Swap-O-Rama, where he met with the manager and viewed surveillance

footage from August 3, 2014. That footage showed Vivas leave Swap-O-Rama around 4:30 p.m.,

get into his car, and leave traveling south on Ashland Avenue. Then, “within a minute or two,” a

silver SUV exited the parking lot and also began traveling south on Ashland Avenue. On cross-

examination, Detective Lara testified that he was not able to identify the driver of the silver SUV




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or any of its passengers.

¶ 12   Detective James Lazansky testified that he was a detective with the Riverside police

department. As part of the robbery investigation, Detective Lazansky served a search warrant on

T-Mobile company seeking historical cell site location data for the cell phones recovered from

defendant and Sandoval. Detective Lazansky explained to the jury that “cell tower location

history is when you use your cell phone, it pings on a certain tower. So it could be within a short

distance of where your phone is hitting.” He elaborated: “[w]herever you travel, you’re going to

go from one tower to another tower to another tower, and your cell phone is going to ping on that

certain tower in the area that you’re at.”

¶ 13   Detective Lazansky then explained that in response to the warrant, “T-Mobile gave us a

spreadsheet of all the latitudes and longitudes and dates and times of where the cell phone towers

were hitting.” Detective Lazansky stated that the T-Mobile records for defendant’s phone did not

contain any cell tower history for August 3, 2014. However, he testified that the cell tower

history for Sandoval’s phone “dictated the exact location of Swap-O-Rama and followed the

victim exactly how he showed us going down I-55. It kept pinging down I-55 to Harlem Avenue.

It pinged at Harlem Avenue; and actually where the crime occurred, it also pinged there.”

Detective Lazansky explained that a ping “[b]asically *** gives us the latitude and longitude and

then you punch in the latitude and longitude into Google Earth, which gives you the exact

geographic location of where the phone is hitting on the cell tower.”

¶ 14   During defendant’s closing argument, defense counsel attempted to use a copy of the trial

transcript and notes that he had written on the transcript. When the court became aware of this, it

admonished defense counsel in the presence of the jury to put the transcript down. During an

ensuing sidebar conference, the court explained, “[y]ou can argue whatever you wish, but no one




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is to refer to the transcript because it’s never been introduced, and it’s never been authenticated,

and the court reporter’s notes have not been requested to be authenticated by anyone.”

¶ 15   The jury found defendant guilty of armed robbery and the court imposed a sentence of 29

years in prison. This appeal followed.

¶ 16                                        ANALYSIS

¶ 17   Defendant presents nine issues for our review which span the entire trial, from jury

selection to sentencing. Defendant argues that: (1) the jury received improper Rule 431(b)

admonishments (see Ill. S. Ct. R. 431(b)), (2) his identification was the product of a suggestive

lineup, (3) his identification was unreliable (4) the State failed to prove that a gun was used

during the crime, (5) an inculpatory text message found on Sandoval’s phone was admitted

without proper authentication, (6) the State’s HCSA evidence was improper because it was not

introduced through a qualified expert, and (7) his sentence was excessive. We need not consider

these arguments, however, because two of defendant’s other claims are dispositive: (1) that

Detective Lazansky’s HCSA testimony was inadmissible hearsay and (2) the circuit court

improperly restricted defense counsel during closing argument.

¶ 18   We begin with the hearsay argument. Defendant argues that Detective Lazansky’s

testimony was testimonial hearsay because it was an embodiment of the T-Mobile report, which

the State failed to authenticate as admissible hearsay pursuant to the business records exception.

See Ill. R. Evid. 803(6) (eff. Jan. 1, 2011). He thus concludes that the introduction of this

evidence violated his sixth amendment right to confrontation.

¶ 19   Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Ill.

R. Evid. 801 (eff. Jan. 1, 2011). At trial, Detective Lazansky told the jury that the information

contained in the T-Mobile report “dictated the exact location of the Swap-O-Rama and followed




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the victim exactly how he showed us going down I-55. It kept pinging down I-55 to Harlem

Avenue. It pinged at Harlem Avenue; and actually where the crime occurred, it also pinged

there.” Detective Lazansky explained that the ping information existed in the form of latitude

and longitude coordinates, and he explained that he arrived at his conclusion about the phone’s

movements by plugging the “ping” information into Google Earth to create a map detailing how

the phone traveled on August 3, 2014. While it is unclear whether this map was ever shown to

the jury, translating the report’s raw coordinate data into points on a map was the keystone of

Detective Lazansky’s testimony. Without the reports, there would be no coordinates; without the

coordinates there would be nothing to plug into Google Earth and thus no map; and without a

map he would have nothing tell the jury about where Sandoval’s phone traveled on August 3.

¶ 20   T-Mobile, which authored the document, was a declarant, and the data showing which

towers Sandoval’s cell phone pinged, and at what times, was an out-of-court statement. And the

only reason Detective Lazansky conveyed this information to the jury was for its truth—that is,

to convince the jury that Sandoval’s phone followed Vivas around all day on August 3, 2014.

That fact is borne out by Detective Lazansky’s testimony, which meticulously detailed the cell

phone’s path of travel, and in the State’s closing argument, in which the prosecutor emphasized,

“ we *** know from Saul Sandoval’s phone that he was at the Swap-O-Rama at the same time

that Mr. Vivas was because we know from his phone that his phone took the same path that Mr.

Vivas took ***.”

¶ 21   It makes no difference that Detective Lazansky used Google Earth to convert the raw

coordinate data from the T-Mobile report, which was in code and would have been meaningless

to the jury, into a format that was actually comprehensible. Information that is hearsay when

presented as numerals in a spreadsheet is still hearsay when those numerals are converted to




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waypoints on a map, and it remains hearsay when that information is conveyed to a jury.

¶ 22   Of course, our finding that Detective Lazansky’s HCSA testimony was hearsay does not

itself settle the matter, since not all hearsay is inadmissible. Phone records of the sort at issue

here are frequently admissible hearsay because they are business records. Ill. R. Evid. 803(6)

(eff. Jan. 1, 2011); see United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir. 2011). But the

proponent of a business record must establish, as a prerequisite to its admissibility, “(1) that the

record was made as a memorandum or record of the act; (2) that the record was made in the

regular course of business; and (3) that it was the regular course of the business to make such a

record at the time of the act or within a reasonable time thereafter.” People v. Nixon, 2015 IL

App (1st) 130132, ¶ 110. The State did not put on any witnesses to fulfill this foundational

requirement, so the T-Mobile report could not have been admissible pursuant to business records

exception.

¶ 23   To be sure, as the State correctly pointed out at trial, some business records are self-

authenticating. See Ill. R. Evid. 902 (11) (eff. Jan. 1, 2011). But to be self-authenticating, a

business record must be accompanied by a certification from the record’s custodian or a

“qualified person” attesting to the three foundational requirements for business records described

above. Id. None of the T-Mobile records were certified. As a result, the records were not

admissible pursuant to Rule 902(11).

¶ 24   Our next step is to assess whether defendant is entitled to relief. We may only grant relief

if the court’s error prejudiced defendant, as harmless errors do not require reversal. To determine

if an evidentiary error was harmless, we ask whether there is a “reasonable probability that the

jury would have acquitted the defendant absent” the improperly admitted evidence. People v.

Nevitt, 135 Ill. 2d 423, 447 (1990). We believe there is such a reasonable probability. Detective




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Lazansky’s testimony filled an important gap in Detective Lara’s testimony. Detective Lara

testified that a silver SUV was following Vivas on the day of the robbery. That SUV was

registered to one of defendant’s associates, defendant was in its vicinity when he was arrested,

and robbery proceeds were found inside it.

¶ 25   Yet, there was no evidence that actually put defendant inside the SUV when it was tailing

Vivas. As Detective Lara admitted, it was impossible to determine from the surveillance footage

who was inside the SUV. Detective Lazansky’s testimony enabled the jury to make that

inferential leap and conclude that defendant was in the silver SUV when it was following Vivas.

And the jury was likely to do so. Detective Lazansky’s testimony was imbued with the

presumption of scientific certitude, a characteristic which can be highly persuasive to a jury. See

People v. Wright, 2012 IL App (1st) 073106, ¶ 96 (acknowledging that certain forms of scientific

evidence can have an oversized impact on the jury’s deliberations). Thus, if Snyder’s testimony

left the jury with any doubt that defendant was at the crime scene, it is a virtual certainty that

Detective Lazansky’s testimony alleviated that doubt. Under these circumstances, we cannot

conclude that the improper introduction of this evidence was harmless. Accordingly, we reverse

defendant’s conviction on this basis and remand for a new trial.

¶ 26   Because we find that this evidentiary error alone entitles defendant to relief, we need not

consider defendant’s constitutional claim, namely that because T-Mobile report was testimonial

in nature, the introduction of this testimony violated defendant’s sixth amendment right to

confrontation. See In re E.H., 224 Ill. 2d 172, 179–80 (2006) (“When a court is asked to evaluate

the admission of out-of-court statements into evidence, the first step is determining whether the

statement passes muster as an evidentiary matter. ***. Only once the statement has first been

found admissible as an evidentiary matter should constitutional objections—including Crawford­




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based confrontation clause claims—be dealt with.”).

¶ 27   We also believe it is important to specifically address defendant’s claim regarding his

attorney’s closing argument. When defense counsel began his closing argument, he attempted to

use the trial transcript, evidently for two purposes: (1) to augment his argument with direct

quotes from the trial testimony, and (2) because he had written notes on the transcript. The court

forbade defense counsel from using the transcript, apparently out of concern that the transcript

had not been authenticated. This was error. “A criminal defendant’s right to make a closing

summation before the finder of fact is a fundamental right derived from the sixth amendment

guarantee of assistance of counsel.” People v. Stevens, 338 Ill. App. 3d 806, 810 (2003); see

Herring v. New York, 422 U.S. 853, 858 (1975) (“There can be no doubt that closing argument

for the defense is a basic element of the adversary factfinding process in a criminal trial.”). The

circuit court may place limits on argument, but those limits must be reasonable. People v. Diaz, 1

Ill. App. 3d 988, 992 (1971).

¶ 28   We find that the court’s blanket prohibition against defense counsel using the trial

transcript, on which he had written notes to assist with his closing argument, was an abuse of

discretion. First, defense counsel transcribed his own notes that he wished to use during closing

argument onto his copy of the transcript, a fact of which he specifically apprised the court

following its sua sponte objection to defense counsel’s conduct. The court never offered defense

counsel the opportunity to transfer his notes to a medium that was acceptable to the court. Thus,

by barring defense counsel from even holding the transcript, the court effectively barred defense

counsel from using his own notes during closing argument.

¶ 29   Second, with respect to the transcript itself, there is no sound reason to bar an attorney

from seasoning his or her closing argument with excerpts from the trial transcript. While a trial




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court may be justified in restricting the degree to which counsel uses a trial transcript, here the

court issued a blanket prohibition on any use of transcripts during closing argument.

¶ 30   The court justified its ruling by explaining that the transcript defense counsel possessed

had not been certified as authentic. But in practice the distinction between a certified and

uncertified transcript is de minimis—the most typical difference is correction of typographical

and scrivener’s errors. It would be reasonable to bar an attorney from using an inaccurate

transcript, but nothing in the record suggests that defense counsel’s transcript was inaccurate.

¶ 31   Closing argument is an important part of a jury trial. It is one of only two times that a

lawyer is allowed to speak directly to the jury, and it is the only time a lawyer can talk to the jury

about the actual evidence in the case, and what reasonable inferences the jury should draw from

the evidence. Herring, 422 U.S. at 862. “And for the defense, closing argument is the last clear

chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt.”

Id. For these reasons, the court’s actions in this case must be carefully scrutinized.

¶ 32   It is true that the circuit court retains broad discretion to limit the scope of closing

argument. People v. Burnett, 237 Ill. 2d 381, 389 (2010). Trial judges retain “great latitude in

controlling the duration and limiting the scope of closing summations.” Herring, 422 U.S. at

862. Judges may “limit counsel to a reasonable time and may terminate argument when

continuation would be repetitive or redundant,” and they may undertake steps to “ensure that

argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct

of the trial.” Id. But the court’s ruling here had nothing to do with the scope of defendant’s

argument. Nor was the court’s ruling narrowly tailored to ensure that defense counsel’s argument

did not “stray unduly from that mark”—that is, exceed the bounds of proper argument by, for

example, presenting misquoted testimony. The court’s complete bar to use of the transcript, even




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to refer to notes written on it, was an abuse of discretion and prejudicial.

¶ 33   Because the error at issue was constitutional in nature—the circuit court effectively

curtailed defense counsel’s ability to perform as the “counsel” contemplated by the sixth

amendment—the State must demonstrate that it was harmless beyond a reasonable doubt. For the

reasons we have already explained, the evidence was closely balanced. That alone is enough to

conclude that the court’s error was not harmless beyond a reasonable doubt. Moreover, the error

likely affected the result at trial. Defense counsel intended to deliver a closing argument focusing

on the many contradictions in Snyder’s testimony, buttressed by actual quotations from the trial

transcript. Defense counsel could not do that because he could not use the transcript. Given the

closeness of the evidence at trial, we cannot conclude that outcome at trial would have still been

the same had defense counsel been able to use the trial transcript to drive home the various

inconsistencies in Snyder’s testimony.

¶ 34   In closing, we note that, although the properly admitted evidence presented a close case,

that evidence was nonetheless sufficient for the State to sustain its burden of proof. Accordingly,

there is no double jeopardy bar to retrial. Piatkowski, 225 Ill. 2d at 567.

¶ 35                                      CONCLUSION

¶ 36   For both reasons stated, we reverse defendant’s conviction and remand for a new trial.

¶ 37   Reversed and remanded.




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