People v. Brown

2021 IL App (3d) 170621

Opinion filed February 23, 2021
_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-17-0621
v. ) Circuit No. 15-CF-484
)
DARREN D. BROWN, ) The Honorable
) John P. Vespa,
Defendant-Appellant. ) Judge, presiding.
____________________________________________________________________________

JUSTICE DAUGHERITY delivered the judgment of the court, with opinion.
Justice O’Brien concurred in the judgment and opinion.
Justice Wright dissented, with opinion.
_____________________________________________________________________________

OPINION

¶1 After a jury trial, defendant was found guilty of first degree murder (720 ILCS 5/9-

1(a)(2) (West 2014)) and aggravated battery (id. § 12-3.05(e)(1)) and was sentenced to

consecutive prison terms of 55 years and 8 years, respectively. Defendant appeals his convictions

and sentences, arguing that (1) the trial court erred in allowing the State to present testimony at

defendant’s jury trial regarding the contents of defendant’s cell phone records and (2) the

statutory sentencing scheme that required the trial court to sentence the 22-year-old defendant (at

the time of the offense) to a de facto life without parole sentence for first degree murder was
 unconstitutional, either on its face or as applied to defendant. We agree with defendant’s first

argument. We, therefore, reverse defendant’s convictions and remand this case for a new trial.

Having reached that conclusion, we decline to rule upon defendant’s second argument.

¶2 I. BACKGROUND

¶3 On July 14, 2015, shortly before 11 p.m., Nikko Smith and Charles Shelton were shot in

the kitchen of Smith’s home on West Kettelle Street in Peoria, Illinois. Smith died as result of his

injuries.The following day, Shelton identified defendant in a photo lineup as the person who had

committed the offenses. A warrant was issued for defendant’s arrest. About two weeks later,

defendant was taken into custody in the state of Georgia, where he lived.

¶4 The following month, in August 2015, defendant was charged by indictment with first

degree murder for the killing of Smith and with aggravated battery for the shooting of Shelton. 1

The indictment alleged, among other things, that in committing the murder, defendant had

“personally shot” Smith, an allegation that, if proven, would trigger a 25-years-to-life sentencing

enhancement (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2014)) for the offense.

¶5 In July 2017, after an earlier mistrial, defendant’s case proceeded to a jury trial. The

evidence presented at trial established that just prior to the shooting, Smith, who was 25 years

old, was seated at the kitchen table in his home on West Kettelle Street in Peoria, Illinois,

packaging cocaine for sale. Smith sold cocaine out of the home on a regular basis and packaged

cocaine in the home about twice a week. Also present in the home at that time were Smith’s

father, Jessie, who was blind; Smith’s uncle, Charles Shelton; Kendrick Wilson, who went by the

1
Defendant was also charged with unlawful possession of a weapon by a felon. That charge,
however, was later dismissed on the motion of the State.
2
 nickname of “Big Four”; and Freddie Dothard. Shelton and Wilson were in the kitchen with

Smith, Jessie was in the bathroom, and Dothard was in the front of the home.

¶6 At about 10:50 p.m., a male subject (referred to hereinafter at times as the intruder or the

offender) with dreadlocks in his hair entered the kitchen carrying a silver revolver in his hand.

The intruder ordered Shelton and Wilson to get on the floor, put the gun to Smith’s head, and

indicated to Smith that he was taking the money and the drugs. Upon either receiving or taking

those items from Smith, the intruder headed for the back door, which was located in the kitchen,

taking Smith with him at gunpoint. The back door was missing a doorknob and was barricaded

using a wood two-by-four to keep it from being opened from the outside. As the intruder was

trying to remove the barricade, Smith resisted. A struggle ensued. Shelton jumped up, and the

intruder shot Shelton in the stomach and leg. Wilson ran to the front door and escaped. Jessie

came out of the bathroom, and Shelton yelled at Jessie to stay where he was, as Shelton crawled

toward the hallway.

¶7 The police arrived a short time later and cleared the residence. Upon doing so, the

officers found Smith lying dead facedown on the kitchen floor with a large pool of blood around

his head. He had been shot once underneath the chin at close range. The bullet went through his

mouth and neck, fractured his second cervical vertebrae, and severed his spinal cord. He died

almost instantly.

¶8 The police processed the scene and collected evidence. The officers found latex gloves,

plastic Baggies, and suspected cocaine on the kitchen table. The officers also found latex gloves

on Smith’s hands. Although the officers checked the scene for fingerprints, they did not find any

fingerprints that were suitable for analysis or comparison. The officers did, however, recover two

bullets from the kitchen floor of the residence. One of the bullets was found underneath Smith’s

3
 body; the other was found under the leg of a chair. Lab analysis later showed that both bullets

had been fired from the same gun. Also found on the kitchen floor were two pieces of

dreadlocked hair. The hair was sent to the crime lab for analysis and deoxyribonucleic acid

(DNA) testing.

¶9 At trial, the only element of the offenses that was in dispute was the identity of the

offender—whether defendant was the person who had committed the crimes. The evidence

presented at trial as to that element can be summarized as follows. Shelton took the witness stand

and identified defendant in court as the person who had put a gun to Smith’s head, stating,

“There you go, right there (indicating). I ain’t never gonna forget him.” In doing so, Shelton

commented that defendant no longer had dreadlocks in his hair. During his testimony, Shelton

described the opportunity he had to see the offender while the robbery was taking place, stating,

“All along, I’m looking dead at him. I’m sitting on the floor looking at him, dead in his face

looking at him.”

¶ 10 In addition to his in-court identification, Shelton also had previously identified defendant

in a photo lineup the day after the shooting and testified about the prior identification in court.

Shelton was in the hospital being treated for his injuries at the time of the photo lineup and was

discharged from the hospital later that day. The treating doctor had determined that Shelton did

not need surgery because the bullets had not penetrated Shelton’s abdominal cavity and because

there were no bullets still remaining in Shelton’s body. The photo lineup identification had been

video recorded, and that recording was played for the jury. On the recording, Shelton had his

eyes closed as the officer was reading the identification instructions, and the officer had to nudge

Shelton or say Shelton’s name to get his attention. The officer indicated on the witness stand that

4
 he did not know if Shelton was falling asleep or not paying attention, and Shelton himself

indicated in his testimony that he did not remember if he had fallen asleep at that time.

¶ 11 Shelton admitted during his testimony that he had smoked marijuana the day of the

shooting about four or five hours before the shooting occurred, that he had used crack cocaine

“way earlier” in the day, and that he had drunk two or three beers. Shelton did not feel, though,

that he was intoxicated. The lab work that was done at the hospital when Shelton was treated for

his injuries confirmed that Shelton had marijuana, cocaine, and alcohol in his system. In fact,

Shelton’s blood alcohol level was 0.202—more than twice the legal driving limit. The doctor

who treated Shelton at the hospital, however, indicated that Shelton was alert, awake, and

commanding normally and testified that it was difficult to describe the level of intoxication based

upon the blood alcohol level because some people were more tolerant to alcohol than others.

According to the doctor, some people at that blood alcohol level could be completely normal,

and others would probably be in a coma. Shelton also admitted during his testimony that he had

prior felony convictions for retail theft in 2004 and for unlawful possession of a controlled

substance in 2005. In addition, although Shelton testified that he heard two gunshots during the

shooting, he had apparently told the police immediately after the incident that he had only heard

one gunshot.

¶ 12 The dreadlocked hair that was recovered from the kitchen floor after the shooting

occurred was analyzed and was found to be “Negroid” head hair that contained DNA that

matched defendant. Microscopic examination of the hair showed that at least one of the hairs had

a “stretched” appearance, which indicated that the hair had been pulled out of a person’s head. In

addition, the expert who analyzed the dreadlocked hair under the microscope indicated in her

5
 testimony that it would not be a normal part of the hair-shedding process for dreadlocks to just

drop out of a person’s head.

¶ 13 Wilson, who was called to the witness stand by the defense, did not make an in-court

identification of the defendant and testified, when asked, that he did not see the offender in the

courtroom. Wilson also did not make an identification of the offender when he was shown a

photo lineup, which included defendant’s picture, the day after the shooting occurred. The

presentation of the photo lineup to Wilson had been video recorded, and that recording was

played for the jury. In court, Wilson was shown the photo lineup again and stood by his prior

statement that he did not see the offender in the lineup.

¶ 14 Wilson’s testimony, however, was somewhat inconsistent, and Wilson confirmed during

his testimony that he was nervous. When Wilson was asked during his testimony whether he had

gotten a look at the intruder and whether he had been able to see what the intruder looked like,

Wilson responded, “No, sir.” Defense counsel asked Wilson questions about the intruder’s

appearance, and Wilson indicated that the intruder had “dreads” in his hair and was skinny.

Based upon those responses, defense counsel returned to his prior questioning, stating, “So, let

me clarify. Did you get a look at this person?” Wilson responded, “I mean yeah. I mean, like, I

don’t know what you askin’ me. What you askin’ me?” Upon further questioning, Wilson

confirmed that he got a good look at the intruder and that he saw the intruder’s face. Wilson

stated, though, that he did not feel he would be able to recognize the intruder if he saw the

intruder again. However, when Wilson had previously been asked that question by the police the

day after the shooting, he told police that he would be able to identify the intruder if he saw the

intruder again. During his testimony in court, Wilson denied that he knew defendant, denied that

6
 he had ever called defendant, and denied that his phone number in July 2015 was a certain 309

number.

¶ 15 Defendant testified at trial on his own behalf and acknowledged that he had previously

been convicted of a felony for residential burglary in 2010. Defendant stated that he lived in

Georgia at the time of the offense and had not lived in Peoria since 2012. Defendant’s mother

still lived in Peoria in 2015. On about July 3, 2015, defendant returned to Peoria with his son for

a family reunion. Defendant knew who Smith was but did not know Smith personally and did not

know where Smith lived. Defendant knew that the West Kettelle Street house was a “crack

house” but did not know that the West Kettelle Street house was Smith’s house. While defendant

was in Peoria for the family reunion, he went to the West Kettelle Street house one time, near

July 14, 2015, to purchase crack cocaine.

¶ 16 On July 15, 2015, at about 3 a.m., defendant and his son left Peoria as planned to return

to Georgia. They were driven back to Georgia by defendant’s mother. When defendant learned

that he was a suspect in the shooting, he did not immediately go back to Peoria because he had to

work at his job and did not have money to go back. Defendant knew that the police were looking

for him and was not trying to hide. Defendant testified further that he was not the person who

entered Smith’s house on July 14, 2015, and that he did not know who the person was who had

committed the offenses. When the crimes were committed, defendant was at his mother’s house,

packing and getting ready to go back to Georgia.

¶ 17 At that time in July 2015, defendant had dreadlocks in his hair and had worn dreadlocks

in his hair for the past two or three years. Defendant had cut his hair at some point prior to trial

because he wanted to look presentable for court and because his dreadlocks were starting to fall

7
 out. According to defendant, big clumps of his hair would fall out on their own because he was

not taking care of his dreadlocks.

¶ 18 Defendant acknowledged during his testimony that, even though he knew he was a

suspect in the shooting, he did not turn himself in and did not contact the Peoria police about the

matter. Defendant admitted that he had told the police that he had never been to Smith’s house

but stated in his testimony that he did not know at the time of his police statement that the West

Kettelle Street house was where Smith lived.

¶ 19 As rebuttal evidence, the State presented the testimony of Peoria police officer Matthew

Ray. Ray testified that he had been assigned to investigate the shooting in this case. The day after

the shooting, Wilson returned Ray’s phone call. The cell phone number that Wilson had called

Ray from was the 309 number. After contacting Ray, Wilson came to the police station and

spoke to Ray about the shooting.

¶ 20 During his investigation, Ray obtained records for defendant’s cell phone, a certain Sprint

telephone number, for the time period around when the shooting took place. Upon receiving and

examining the phone records, Ray saw that Wilson had made numerous phone calls to defendant

both before and after the shooting. According to Ray, the police were notified of the shooting on

July 14 at 10:53 p.m., and Wilson had called defendant’s cell phone on July 14 at 10:42 p.m. for

31 seconds, at 10:55 p.m. for 31 seconds, at 11:08 p.m. 2 for 30 seconds, at 11:08 p.m. for 104

seconds, at 11:24 p.m. for 24 seconds, at 11:55 p.m. for 37 seconds, and at 11:56 p.m. for 14

seconds. The phone records also showed that defendant had called Wilson’s cell phone on July

2
Ray incorrectly indicated in his testimony that the third phone call started at 11:03 p.m.
(2303:20) on July 14 and ended at 11:08 p.m. (2308:50). The actual phone records, however, show that
both the third and the fourth phone calls took place at 11:08 p.m., and Ray indicated in his testimony that
the duration of the third phone call was 30 seconds.
8
 14 at 11:27 p.m. for 38 seconds. After receiving defendant’s cell phone records and seeing that

Wilson’s phone number was on those records, the police tried to locate Wilson but were unable

to find him.

¶ 21 During Ray’s testimony, as the State was initially starting to question Ray about the cell

phone records, the defense objected. The following conversation ensued:

“[DEFENSE COUNSEL]: Objection, Judge. Foundation and

authentication. I don’t think the State can enter this type of record without a

representative of the company.

[THE PROSECUTOR]: It’s a self-authenticating document, Judge.

THE COURT: Anything else in that regard, Attorney [defense counsel]?

[DEFENSE COUNSEL]: Stand by my objection.

THE COURT: Objection is overruled. You can go ahead and consider the

witness’s answer.”

¶ 22 Although Ray testified as to the contents of the phone records, there is no clear indication

that the records were ever formally admitted into evidence. The phone records are contained,

however, in the trial court exhibits that have been made part of the record on appeal. Attached as

the first page of the phone records was a certification from Danielle Keeler, the custodian of the

records for Sprint. At the top of the certification was the title, “CERTIFICATION PURSUANT

TO RULES 803(6) AND 902(11) OF THE FEDERAL RULES OF EVIDENCE AND 28 U.S.C.

§ 1746.” In the certification, Keeler attested, among other things, that she was certifying that the

records attached (1) “were made at or near the time of the occurrence of the matters set forth in

the records, by, or from information transmitted by, a person with knowledge of those matters”;

(2) “were kept in the course of the regularly conducted business activity”; and (3) “were made by

9
 the regularly conducted business activity as a regular practice.” The certification was signed by

Keeler and notarized, and Keeler declared in the certification under penalty of perjury that the

statements she had made in the certification were true and correct.

¶ 23 During closing arguments, the State argued that, based upon the strength of Shelton’s

identification of defendant and the DNA evidence, it had proven that defendant was the person

who had committed the crimes. As for Wilson’s failure to identify defendant, the State noted that

the remainder of Wilson’s testimony about the shooting was consistent with Shelton’s. The State

pointed to the phone records to suggest that Wilson was lying when he failed to identify

defendant since the phone records showed that Wilson had been in contact with defendant

around the time of the shooting, even though Wilson had testified that he did not know defendant

and had not called or contacted defendant. The State went further in the rebuttal portion of its

closing argument and suggested that Wilson was “in on” the crimes.

¶ 24 Defense counsel argued in closing argument that the State had not proven beyond a

reasonable doubt that defendant was the person who had committed the crimes. Defense counsel

suggested to the jury that the DNA evidence was not conclusive because DNA analysis alone

could not determine when or how a person’s DNA got to a particular location. Defense counsel

also noted that there were limitations to DNA analysis—because DNA could be transferred from

one person or location to another and could be contaminated through human error—and argued

to the jury that the DNA evidence in this case was unreliable. As for the credibility of Wilson’s

failure to identify defendant as the person who had committed the crimes, defense counsel

asserted that the phone records were unconvincing because Wilson denied that the 309 number

was his phone number and denied that he knew or had contacted defendant. Defense counsel

asserted further that there was no good reason for the jury to believe that the 309 number was

10
 Wilson’s since the State did not present a representative from the phone company to testify to

that effect and since there was nothing presented by the State to satisfy the jury that the phone

records were authentic, reliable, and credible evidence. As for Shelton’s identification, defense

counsel told the jury that it was unreliable because Shelton had used alcohol and drugs prior to

the shooting and had been through a traumatic experience.

¶ 25 After deliberating for about an hour, the jury found defendant guilty of both first degree

murder and aggravated battery. The trial court ordered that a presentence investigation report be

prepared on defendant and set the case for a hearing on posttrial motions. Defendant

subsequently filed a motion for judgment notwithstanding the verdict or for new trial. In the

motion, defendant argued, among other things, that the trial court erred in allowing the State to

introduce the phone records into evidence, despite defendant’s objection as to a lack of a proper

foundation. After a hearing, the trial court denied the motion.

¶ 26 A sentencing hearing was held immediately thereafter. During the sentencing hearing, the

attorneys and the trial court agreed that defendant was subject to a sentencing range of 45 years

to life in prison (20 to 60 years with a 25-years-to-life sentencing enhancement added on) for

first degree murder and 6 to 30 years in prison for aggravated battery and that defendant would

have to serve the sentences for the two offenses consecutively. At the conclusion of the

sentencing hearing, the trial court sentenced defendant to consecutive prison terms of 55 years

for first degree murder and 8 years for aggravated battery.

¶ 27 Defendant filed a motion to reconsider sentence, which the trial court denied. Defendant

appealed.

¶ 28 II. ANALYSIS

¶ 29 A. Admission of Officer Ray’s Testimony
Regarding the Content of Defendant’s Cell Phone Records
11
¶ 30 On appeal, defendant argues first that the trial court erred in allowing the State to present

testimony at defendant’s jury trial regarding the contents of defendant’s cell phone records.

Defendant asserts that such testimony should not have been allowed because the State failed to

present a sufficient foundation for the admission of the phone records into evidence as a business

record. In making that assertion, defendant notes that (1) neither the actual phone records nor the

custodian of the record’s certificate was admitted into evidence in this case and (2) even if the

custodian’s certificate had been admitted, the foundation for admission was still insufficient

because the custodian’s certificate was missing the second set of foundational elements that was

required under the law for a computer-generated record to be admitted into evidence as a

business record (see People v. Nixon, 2015 IL App (1st) 130132, ¶¶ 110-11; People v. Kent,

2017 IL App (2d) 140917, ¶ 129). Furthermore, defendant contends, he was substantially

prejudiced by the erroneous admission of the evidence because it established that he and Wilson

were in phone contact with each other shortly before and after the shooting, which was contrary

to their testimony and served to destroy their credibility at trial. For all of the reasons stated,

defendant asks that we reverse his convictions and that we remand this case for a new trial.

¶ 31 The State argues that the trial court’s ruling was proper and should be upheld. In support

of that argument, the State asserts first that no error occurred in the admission of the phone

records testimony in this case because the State presented the proper foundation for the

admission of the phone records as provided for in the amended version of Illinois Rule of

Evidence 902, which, according to the State, eliminated the second set of foundational

requirements for a computer-generated record (see Ill. R. Evid. 902(12) (eff. Sept. 28, 2018)).

While making that assertion, the State acknowledges that Rule 902 was not amended until after

the trial in this case but asserts, nevertheless, that the amendment applies retroactively here

12
 because Rule 902 is a procedural rule. Second, and in the alternative, the State asserts that, even

if the phone records testimony was erroneously admitted in this case, any error that occurred was

harmless because the evidence of defendant’s guilt was overwhelming. For both of the reasons

set forth, therefore, the State asks that we affirm defendant’s convictions.

¶ 32 In reply to the State’s assertions, defendant contends first that the later amendment to

Rule 902 has no bearing on this issue because the amendment was made after the trial in this

case had already taken place. In the alternative, defendant contends that, even if the amendment

applies retroactively to the trial in this case, the testimony regarding the phone records was still

improperly admitted because the foundation presented by the State did not comply with the

amended rule, which, according to defendant, was consistent with the rule that had been

established by the case law. For those reasons and the reasons initially stated, defendant asks that

we reverse his convictions and that we remand this case for a new trial.

¶ 33 A trial court’s ruling on the admissibility of evidence will not be reversed on appeal

absent an abuse of discretion. People v. Pikes, 2013 IL 115171, ¶ 12; People v. Illgen, 145 Ill. 2d

353, 364 (1991). The threshold for finding an abuse of discretion is a high one and will not be

overcome unless it can be said that the trial court’s ruling was arbitrary, fanciful, or unreasonable

or that no reasonable person would have taken the view adopted by the trial court. See In re

Leona W., 228 Ill. 2d 439, 460 (2008); People v. Donoho, 204 Ill. 2d 159, 182 (2003).

Furthermore, even if the trial court has committed an abuse of discretion in the admission of

evidence, it will not warrant a reversal of the trial court’s judgment unless the record indicates

the existence of substantial prejudice affecting the outcome of the trial. See People v. Jackson,

232 Ill. 2d 246, 265 (2009); Leona W., 228 Ill. 2d at 460; Nixon, 2015 IL App (1st) 130132,

¶ 101.

13
¶ 34 Although not quite clear from the record before us, it appears that the majority of the

information contained in defendant’s cell phone records and testified to by Officer Ray was

computer-generated information—information that was generated instantaneously by a computer

when telephone calls were made to or from defendant’s cell phone. See Kent, 2017 IL App (2d)

140917, ¶ 128 (indicating that the billing data generated instantaneously by a computer when a

telephone call is made is an example of a computer-generated record, the spontaneously created

tangible result of the internal electrical and mechanical operations of the computer itself, which

is not dependent upon the observations and reporting of a human declarant); see also People v.

Holowko, 109 Ill. 2d 187, 191-93 (1985) (distinguishing between computer-generated records

and computer-stored records). For such a record to be admitted into evidence under the business-

records exception to the hearsay rule, the proponent of the evidence must establish two sets of

foundational requirements. See Nixon, 2015 IL App (1st) 130132, ¶¶ 110-11; Kent, 2017 IL App

(2d) 140917, ¶ 129. First, the proponent must establish the three foundational elements

commonly associated with the admission of a business record: (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. See Ill. R. Evid. 803(6) (eff. Apr. 26, 2012); 725 ILCS

5/115-5(a) (West 2014); Nixon, 2015 IL App (1st) 130132, ¶ 110; Kent, 2017 IL App (2d)

140917, ¶ 129. Second, the proponent must establish four additional foundational elements that

are specific to computer-generated records: (1) that standard equipment was used; (2) that the

particular computer generates accurate records when used appropriately; (3) that the computer

was used appropriately; and (4) that the sources of the information, the method of recording, and

the time of preparation indicate that the record is trustworthy and should be admitted into

14
 evidence. Nixon, 2015 IL App (1st) 130132, ¶ 111; Kent, 2017 IL App (2d) 140917, ¶ 129.

Unless the proponent of the evidence makes both of the required showings, the computer-

generated business record will not be admitted into evidence. See Nixon, 2015 IL App (1st)

130132, ¶¶ 105, 110-11; Kent, 2017 IL App (2d) 140917, ¶¶ 129-30.

¶ 35 In the present case, after having reviewed the trial court proceedings and the certification

of the custodian of the records for the phone company, we find that the State failed to satisfy the

second set of foundational elements that are required for the admission of a computer-generated

record into evidence under the business-records exception to the hearsay rule. See Nixon, 2015

IL App (1st) 130132, ¶¶ 110-11; Kent, 2017 IL App (2d) 140917, ¶ 129. Indeed, the State failed

to present any evidence, by certification or otherwise, to establish the four foundational elements

that are specific to a computer-generated record. See Nixon, 2015 IL App (1st) 130132, ¶ 111;

Kent, 2017 IL App (2d) 140917, ¶ 129. Thus, even if we were to excuse the State’s failure to

move the phone records into evidence, we would still have to find that the trial court committed

an abuse of discretion by allowing the State to present the testimony of Officer Ray regarding the

content of the phone records because the State failed to establish a sufficient foundation for the

admission of the phone records into evidence. 3 See Leona W., 228 Ill. 2d at 460; Donoho, 204

Ill. 2d at 182.

3
The parties have not specifically addressed whether the State’s failure to formally move the
phone records and the certification into evidence would require a reversal in this case. Defendant merely
suggests that it would not have been proper for the jurors to take the phone records into the jury room
with them and that it was not proper for the State to refer to the certification in closing argument. The
State acknowledges that it inadvertently forget to formally admit the phone records and the certification
into evidence during defendant’s jury trial but, nevertheless, maintains that there is no indication in the
record that the jurors took the phone records with them into the jury room, that defense counsel did not
object to that procedure, and that any error that occurred in that regard was harmless. Because the parties
have not specifically addressed what effect the State’s failure to move the phone records into evidence has
on this on case, if any, we decline to rule upon that matter.
We take no position on whether it would be permissible for Officer Ray to testify about the
contents of the phone records, even if the phone records had been properly admitted into evidence as a
15
¶ 36 Furthermore, contrary to the assertion of the State, the admission of the phone records

testimony was not harmless in this case. See Leona W., 228 Ill. 2d at 460; Nixon, 2015 IL App

(1st) 130132, ¶ 101. The only element of the offenses that was in dispute at defendant’s jury trial

was the identity of the offender (whether defendant was the person who had committed the two

offenses). The State presented the testimony of Shelton, who identified defendant as the person

who had committed the crimes, and the DNA results, which showed that defendant’s hair was

found at the crime scene after the offenses had been committed. The defendant countered with

the testimony of Wilson, who indicated through his nonidentification of defendant that defendant

was not the person who had committed the crimes, and the testimony of defendant himself that

he did not commit the offenses and that his hair (DNA) may have been at the crime scene

because he had purchased drugs at that location earlier. The phone records testimony, which

showed that defendant and Wilson had been in contact with each other, destroyed Wilson’s and

defendant’s credibility, as both had testified that they did not know each other and had not been

in contact with each other. The phone records testimony, therefore, was a crucial piece of

evidence in this case. Thus, we must conclude that the erroneous admission of that testimony

substantially prejudiced defendant and affected the outcome of the trial such that a reversal and

remand for new trial in this case is warranted. See Leona W., 228 Ill. 2d at 460; Nixon, 2015 IL

App (1st) 130132, ¶ 101.

business record. We note, however, that the business-records exception to the hearsay rule allows for
records to be admitted into evidence but does not generally allow for a witness to testify about the
contents of those records. See PennyMac Corp. v. Colley, 2015 IL App (3d) 140964, ¶ 17 (indicating that
with the business-records exception, it is the business record itself that is admissible, not the witness’s
testimony); Smith v. Williams, 34 Ill. App. 3d 677, 680 (1975) (indicating that it would be improper for
the custodian of the records to summarize the contents of the records in his or her testimony).

16
¶ 37 In reaching that conclusion, we have considered the State’s other assertion—that the

subsequent amendment to Rule 902 eliminated the second set of foundational elements required

for the admission of a computer-generated record into evidence as a business record (see Ill. R.

Evid. 902(12) (eff. Sept. 28, 2018)). The amendment to which the State refers took place after

the trial in this case had already occurred. See id. Thus, even if we assume for argument’s sake

that the amendment made the change in the foundational requirements that the State suggests, we

would still have to reject the State’s argument here because the amendment cannot be applied

retroactively in this case. See People v. Hunter, 2017 IL 121306, ¶¶ 36-37 (recognizing that a

new procedural rule would not apply retroactively to proceedings that had already taken place

before the new rule was enacted).

¶ 38 B. Constitutionality of Statutory Sentencing Scheme

¶ 39 As his second point of contention on appeal, defendant argues that the statutory

sentencing scheme that required the trial court to sentence the 22-year-old defendant (at the time

of the offense) to a de facto life without parole sentence for first degree murder was

unconstitutional, either on its face or as applied to defendant. Because we have already

determined that a reversal and remand for new trial is required in this case, we decline to rule

upon defendant’s second point of contention.

¶ 40 III. CONCLUSION

¶ 41 For the foregoing reasons, we reverse defendant’s convictions and remand this case for a

new trial.

¶ 42 Reversed and remanded.

¶ 43 JUSTICE WRIGHT, dissenting:

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¶ 44 I respectfully dissent on two grounds. First, I observe that reversible judicial error is not

present in this record. Alternatively, the evidentiary error, if any, was harmless. For purposes of

this separate offering, a brief review of the trial evidence is necessary.

¶ 45 During the early investigation of this murder, an eyewitness to the intrusion, Shelton,

viewed a pretrial photo lineup put together by law enforcement. As a result of that photo lineup,

Shelton identified defendant as the intruder that shot Shelton and then shot and killed the victim.

¶ 46 Also, during the early investigation of this murder, another eyewitness, Kendrick Wilson,

spoke to the investigators. Wilson stated that he was present in the apartment when an intruder

held the victim at gunpoint. Wilson said that he was able to get a good look at the intruder and

would be able to make an identification. However, after viewing a photo lineup put together by

law enforcement, Wilson did not identify any person in the photo array as the intruder. Defendant’s

photo was included in that array.

¶ 47 Both eyewitnesses testified before the jury. Shelton testified for the State. Wilson testified

for the defense. Thus, the jury was called upon to evaluate the credibility of each eyewitness’s

account. The jury learned that DNA evidence confirmed Shelton’s pretrial identification of

defendant by linking defendant to a dreadlock the intruder lost during a struggle with the victim.

¶ 48 Contrary to Shelton’s testimony for the prosecution, Wilson testified that he did not get a

good look at the intruder. Then, at defense counsel’s request, Wilson scanned the courtroom and

testified that the intruder was not present in the courtroom that day.

¶ 49 During Wilson’s cross-examination, the State attempted to weaken Wilson’s credibility by

demonstrating Wilson and defendant knew each other before the murder. Wilson denied that his

cell phone records would show any calls between Wilson’s cell phone and defendant’s cell phone

close in time to the murder.

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¶ 50 Consequently, during the rebuttal portion of the trial, the State completed the impeachment

of Wilson by calling a rebuttal witness, Officer Ray. The purpose of Officer Ray’s rebuttal

testimony was to summarize certified cell phone records, obtained by a search warrant, that

contradicted Wilson’s trial testimony. The computer-generated business records documented

multiple cell phone calls between Wilson’s cell phone and defendant’s cell phone that took place

shortly before and after the murder. Using abbreviated language, defense counsel stated his

objection to Officer Ray’s testimony as follows: “Foundation and authentication. I don’t think the

State can enter this type of record without a representative of the company.”

¶ 51 Using similar shorthand language in the jury’s presence, the State made a counterargument

to the defense’s objection by asserting the records, present in the courtroom at that time, were

“self-authenticating.” When the trial court asked defense counsel for a response to the State’s self-

authentication argument, defense counsel did not refine his objection. Significantly, defense

counsel did not argue that the self-authenticating certification language on the face of the business

records was incomplete. Instead, defense counsel stood on his original objection claiming live

testimony from a representative of the cell phone company was required for a proper foundation .

¶ 52 On appeal, defendant criticizes the trial court by pointing out that the word “certification”

was not mentioned by the trial court. Defendant’s observation is accurate. Defense counsel did not

request the trial court to examine the language of the certification by claiming the language was

incomplete. Hence, the court’s silence with respect to certification is solely attributable to defense

counsel’s silence and results in waiver.

¶ 53 Respectfully, without a defense objection to the sufficiency of the certification on the face

of the records, the trial court did not have an obligation to evaluate the certification sua sponte. In

my view, the trial court made the correct ruling during a rapid-paced trial, based on the objection

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 that the prosecution was required to present testimony from a representative of the cell phone

company before Officer Ray could summarize the contents of the computer-generated business

records. Therefore, I would affirm defendant’s convictions in the absence of judicial error.

¶ 54 That said, I recognize the posttrial motion filed by defense counsel skillfully and subtly

refined the basis for defense counsel’s trial objection. However, referencing the incomplete

certification language for the first time in a posttrial motion, without a corresponding trial objection

on the same grounds, did not properly preserve the issue concerning the sufficiency of the

certification language for our review. Based on this record, I respectfully submit that defendant’s

convictions should not be overturned on an evidentiary issue the trial court did not have an

opportunity to consider during trial. See People v. Sanchez, 2013 IL App (2d) 120445, ¶ 27.

¶ 55 Regardless of waiver, I am persuaded by the State’s argument that the foundational error,

if any, constitutes harmless error. In this case, the summary of the cell phone records is not alleged

to contain misinformation causing prejudice. Importantly, the information discredited Wilson’s

testimony that denied any previous acquaintance with defendant. The jury received other evidence

weakening Wilson’s credibility such as his prior inconsistent statements to law enforcement and

his prior felony conviction. For this reason, the cell phone call history presented to the jury in

rebuttal was cumulative impeachment.

¶ 56 For the reasons discussed in this separate offering, I would affirm defendant’s convictions

without expressing any opinion on the retroactive application of the Illinois Rule of Evidence 902,

as amended effective September 28, 2018, or the propriety of the sentences imposed by the court.

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 No. 3-17-0621

Cite as: People v. Brown, 2021 IL App (3d) 170621

Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 15-CF-
484; the Hon. John P. Vespa, Judge, presiding.

Attorneys James E. Chadd, Peter A. Carusona, and Dimitri Golfis, of
for State Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:

Attorneys Jodi Hoos, State’s Attorney, of Peoria (Patrick Delfino,
for Thomas D. Arado, and Nicholas A. Atwood, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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