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                               Appellate Court                            Date: 2018.07.10
                                                                          11:16:15 -05'00'




                  People v. Ramos, 2018 IL App (1st) 151888



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JUAN RAMOS, Defendant-Appellant.



District & No.    First District, Sixth Division
                  Docket No. 1-15-1888



Filed             March 30, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 14-CR-15650; the
Review            Hon. Gregory Robert Ginex, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Sharon Goot Nissim, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  John E. Nowak, and Brian A. Levitsky, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             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 codefendant 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
     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, 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

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

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       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 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 feet, 8 inches, and 5 feet, 10 inches,
       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 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

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       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 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) (eff. July 1, 2012)), (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. Apr. 26, 2012). 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 the victim exactly how he showed us going down I-55. It kept pinging down I-55 to

                                                    -4-
       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 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. Apr. 26, 2012); 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

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       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
       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-based confrontation clause claims—be dealt with.”
       (Emphasis in original.)).
¶ 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

                                                   -6-
       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 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 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. People v. Piatkowski, 225 Ill. 2d 551,


                                                    -7-
       567 (2007).

¶ 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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