Does admission of a cell phone include admission of its call history logs?

This week, the Third Department decided People v. Francis (3d Dept. 1/22/2009), a drug case out of Rensselaer County.  The issue was the propriety of the prosecutor's summation, in which he or she referenced various "call history" logs in a cell phone.  The cell phone had been admitted into evidence, but not its call history logs.  The Third Department concluded that the prosecutor's summation was improper, not responsive to the defense summation, not harmless, and ordered a new trial.

This was a dropsy case.  The defendant was approached by police officers on the grounds of a public housing project.  The defendant fled, dropping drugs, cash, and a cell phone along the way.  The issue at trial was the defendant's identity as the perpetrator.  He claimed that it was another person who ran from the police and dropped the drugs, cash, and phone.

At trial, the People moved the cell phone into evidence "for the purpose of displaying pictures of defendant contained therein, apparently to prove that the telephone belonged to him."  No witness testified as to the contents of the phone—specifically, the log of incoming and outgoing calls.  Nevertheless, during summation, the prosecutor "point[ed] out to the jury the specific dates and times of certain calls
logged on the telephone, and … invite[d] the jury to view the contents of
the telephone during deliberations."  During  deliberations, the jury inquired whether it could consider, as evidence, the call logs.  The Third Department's opinion does not indicate how the trial court responded to that request.

This is an incredibly interesting issue.  Essentially it raises the question of whether the admission of a "container" also includes, ipso facto, the admission of its contents, electronic or otherwise.  I did some quick research and have not found many authorities on point.  There is an unpublished decision in Washington State that seems to suggest that, once admitted into evidence, the whole exhibit comes into evidence and the jury has full access to it, including its contents.  However, there are New York cases that directly state otherwise.  For example, in People v. Givans (4th Dept. 11/23/2007), the court held that it was error to permit the jury to access text messages in a cell phone when there was no testimony authenticating the texts. 

If a proper foundation has been laid for the admission of the "container" (here, the officers presumably identified the cell phone as the one dropped by the defendant), why is there prohibition on examining its contents?  I suppose a concern is that the logs themselves are subject to tampering and, therefore, a chain of custody has to be established.

Lesson learned?  If you want a jury to consider the electronic contents of a cell phone or other electronic device, it is best to have the logs, texts, etc., separately admitted.  Merely admitting the container itself will not suffice. In addition, it seems that whenever a cell phone is admitted—but no foundation has been laid as to its contents—the trial court must issue an instruction to the jury not to power on the cell phone.  In this case, the trial court would have had to go further and instruct the jury that, while it may view the photos, it may not access the call history logs, text messages, and other contents.  (LC)

Defendant’s Right to Testify Before the Grand Jury Violated

A defendant has a right to testify before the Grand Jury.  In People v. Maddox (Sup. Ct. Monroe Co. 12/1/2008), Justice Egan concluded that the defendant's right was violated because the prosecutor directed the examination, never permitting the defendant to tell his side in narrative form.

The court summarized the Grand Jury testimony:

After the oath and acknowledgment of the waiver of immunity,
Defendant's testimony began. The prosecutor began the questioning by
stating to Defendant: "I'll give you the floor so you can explain
what you were doing and where you were on a particular date, time and
location, okay?" (Tr. p. 47, lines 6-9). After drawing Defendant's
attention to the date in question, the prosecutor told Defendant: "I'm
going to bring your attention now to – – it's going to be Wednesday,
September 17, at approximately 11:08 p.m.. I'm simply going to ask you
if you know where you were on that night, and if you were with anyone,
explain who you were with, where you were at; and if you were in a
motor vehicle, explain how it is you got there, and what happened that
night shortly after 11 o' clock . Okay?". (Tr.p. 47, lines 11-19).

After this introductory matter, the prosecutor, rather than
permit the Defendant to offer a narrative of events in the day in
question, proceeded to question the Defendant on certain pedigree
matters and his putative associations with co-defendants in the case.
Nine pages of transcript later the questioning finally turned to the
events in question. All the while, the prosecutor was directing the
manner of questioning and the topics. At page 56 of the transcript the
prosecutor finally began to direct the testimony of the Defendant
concerning the transaction at issue. The questioning was interspersed
with imperatives and questions such as: "[s]o describe what happened
next? [Tr. p. 56 , l. 9] and "[a]re you familiar with the area?". The
questioning continued until page 75 of the transcript. Most of the mode
of questioning during the balance of Defendant's testimony was a hybrid
of direct and cross examination. There were two attempts at impeachment
of Defendant's testimony with prior criminal convictions. The
prosecutor's general tone of questioning was vigorous and at times
confrontational all in the absence of Defendant first having an
opportunity to deliver a narrative in his own words.

The court found that this violated CPL § 190.50:

Criminal Procedure Law (hereinafter, "CPL") §190.50(5)(b) requires that
where a person has executed a waiver of immunity, "such person must be
permitted to testify before the grand jury and to give any relevant and
competent evidence concerning the case under consideration." See
CPL §190.50(5)(b). A defendant testifying before a grand jury must be
given an opportunity to give his own version of the events before being examined by the prosecutor. People v. Smith,
84 NY2d 998, 1000 (1994). Not only must a defendant be accorded an
opportunity to give his own version of events first in narrative
fashion, but he must also be given that same opportunity without being interrupted. People v. Lerman, 116 AD2d 665, 666 (2nd Dept. 1986).

Lesson learned for prosecutors?  When a defendant testifies, provide him with an opportunity to tell his side of the story before asking questions.  It might be helpful to conclude a defendant's Grand Jury testimony with a question like, "Is there anything else about the incident in question that you would like to say?"  Although such a question might invite a rambling plea for mercy, it nevertheless helps to avoid the type of problem discussion in this case.  (LC)

Preservation

Chief Judge Kaye, in what will be one of her last opinions as a Judge of the Court of Appeals, wrote for a unanimous court in People v. Hawkins (Ct. App. 11/25/2008), a consolidated case dealing with preservation.  It is an important case for both trial and appellate attorneys.

The Court of Appeals is limited to hearing questions of law.  In contrast, the Appellate Division can decide questions of law, fact, or issues in the interest of justice.  Legal sufficiency is a question of law … but only if it has been properly preserved.  What constitutes adequate preservation?

To preserve for this Court’s review a challenge to the legal
sufficiency of a conviction, a defendant must move for a trial order of
dismissal, and the argument must be "specifically directed" at the
error being urged (People v Gray, 86 NY2d 10, 19 [1995]; People v Hines,
97 NY2d 56, 62 [2001]). As we have repeatedly made clear — and
underscore again — general motions simply do not create questions of
law for this Court’s review (see People v Finger, 95 NY2d 894,
894 [2000] [legal sufficiency issue was unpreserved by a motion for
trial order of dismissal claiming that every element had not been
proven]; People v Bynum, 70 NY2d 858, 859 [1987]; People v Stahl, 53 NY2d 1048 [1981]; People v Cona, 49 NY2d 26, 33 n 2 [1979]).

Unfortunately, many motions for trial order of dismissal are general and perfunctory.  The Court explained why specificity is required:

Sound reasons underlie this preservation requirement. As we stated in Gray,
a specific motion brings the claim to the trial court’s attention,
alerting all parties in a timely fashion to any alleged deficiency in
the evidence, thereby advancing both the truth-seeking purpose of the
trial and the goal of swift and final determination of guilt or
nonguilt of a defendant (86 NY2d at 19-20). A defendant’s motion for a
trial order of dismissal that specifies the alleged infirmity helps to
assure that legally insufficient charges will not be submitted for the
jury’s consideration, and serves the overall interest in an efficient,
effective justice system.

Viewing the preservation
requirement in the context of the individual trial, it is defense
counsel who is charged with the single-minded, zealous representation
of the client and thus, of all the trial participants, it is defense
counsel who best knows the argument to be advanced on the client’s
behalf. Viewing the preservation requirement systemically, intermediate
appellate court review is potentially comprehensive, including not only
law questions but also fact issues and the interest of justice. This
Court’s second level of review — "to authoritatively declare and settle
the law uniformly throughout the state" — is best accomplished when the Court determines legal issues of
statewide significance that have first been considered by both the
trial and the intermediate appellate court.

Given this strong reaffirmance of the principles in Gray, it is incumbent upon trial defense counsel to make a strong record of legal insufficiency.  Otherwise, appellate counsel will have to fallback on an "interest of justice" attack before the Appellate Division.  These claims are difficult to win. 

Lessons learned?

• Counsel should prepare for the motion for trial order of dismissal as they would for any other important stage of a trial: voir dire, cross-examination of  witnesses for the People, summations, etc.  It is tough to come up with specific legal sufficiency arguments in the middle of trial.
• A motion for trial order of dismissal should carefully and slowly lay out the arguments why each particular count of the indictment should be dismissed.  While citation to case law is not necessary, it is always helpful.
• A catch-all or general motion ("I move to dismiss Count X of the Indictment because the People have failed to adduce legally sufficient evidence. Thank you, Your Honor.") is as good as making no motion at all.  Specificity is the key. 
• Judges should allow defense counsel sufficient time to prepare and make their arguments.  If the People rest their case at 12:55 p.m., perhaps hearing the motion after a lunch recess would be preferable to "getting it out of the way" before the break.
• Remember that if the defense presents evidence, the motion must be renewed at the close of the evidence.  See People v. Hines, 97 N.Y.2d 56 (2001). Here, too, the argument must be specific.

(LC)

Ineffective assistance and the “Dog Pound”

People v. Ennis is a fascinating Brady and ineffective assistance of counsel case that was decided today by the Court of Appeals.  Basically, two brothers — Sheldon and Aaron Ennis — were charged with running a drug-selling conspiracy in Manhattan.  They ran their operation out of a hotel that they dubbed the "Dog Pound."  At trial, the People attempted to show that the brothers, and a third co-conspirator, used violence to protect their drug turf.  One of the incidents involved a shooting.  The victim testified that both Aaron and Sheldon shot at him.

During the trial, Aaron Ennis’ attorney confided to Sheldon Ennis’ attorney that Aaron had made a proffer to the People, during plea negotiations, that he alone had shot at the victim and that Sheldon was not present.  According to Sheldon’s attorney, this information was communicated to him in confidence, with the understanding that it would not be disclosed until after trial.  The People never disclosed the contents of the proffer to Sheldon’s lawyer.

The question on appeal was whether Sheldon’s attorney provided effective assistance of counsel.  The defendant argued that he did not, due to a conflict of interest and the attorney’s failure to take action on the disclosed information as well as the People’s failure to turn over the information.  The Court of Appeals, in a unanimous decision authored by Judge Graffeo, rejected defendant’s claims and affirmed his conviction.

The court first held that there was not a conflict of interest:

To date, our conflict of interest cases have generally fallen into one
of two categories: cases where a potential conflict of interest was
identified based on defense counsel’s previous or concurrent
representation of a client whose interests conflicted with those of
defendant (see e.g. People v Abar, 99 NY2d 134 [2002]; People v McDonald, 68 NY2d 1 [1986]) and cases where defense counsel became a witness against defendant (see e.g. People v Lewis, 2 NY3d 224 [2004]; Berroa,
99 NY2d 134). Regardless of the circumstances, in our prior cases the
potential conflicts of interest were discernible based on objective
facts that were not easily subject to manipulation by the conflicted
attorney. 

…

In this case, the purported conflict of interest does not arise from
objective facts or circumstances external to defense counsel. Rather,
it is alleged that defense counsel was torn between keeping a promise
to Aaron’s counsel not to reveal the exculpatory information and
fulfilling his professional obligation to act in defendant’s best
interests. In the affidavit submitted in connection with the CPL 440.10
motion, Cooper stated that he did not tell the trial court about the
alleged Brady violation or otherwise attempt to use the
exculpatory information at trial because he felt constrained to remain
silent, apparently based on his personal (as opposed to professional)
ethical values.

The personal dilemma defense counsel describes is markedly
different from the types of conflicts that we have previously
recognized as triggering our conflict of interest analysis because it
is entirely subjective. Many (perhaps most) attorneys would not have
perceived any conflict; having learned information that they deemed
useful to their client, they presumably would have pursued one of
several available courses of action, including advising the trial
court, ex parte and without necessarily divulging their source,
that they had reason to believe there had been a proffer session in
which exculpatory statements were made. For these lawyers, any personal
concern stemming from the assurance of confidentiality would have been
outweighed by the professional obligation to pursue the interests of a
client who was on trial for serious offenses, including attempted
murder. We are therefore hard-pressed to place the internal struggle
cited by defense counsel in the same category as the conflicts of
interest discussed in our precedents.

The court also noted that the question under the second prong is a mixed one of law and fact.  The court could not find that the inference drawn by the courts below lacked support in the record.

Turning to the question of whether counsel was ineffective for failing to make proper use of the information, the court first summarized counsel’s "effective" advocacy throughout the trial.  This is an important point that many appellate attorneys overlook: Under New York’s standard for ineffective assistance of counsel, the entirety of counsel’s work must be examined to determine whether he or she provided "meaningful representation."  Therefore, any error must be placed in the context of the entire representation.  Here, the court found that the defendant had the assistance of an able advocate:

In this case, defense counsel performed as an effective advocate in
many significant respects. He vigorously cross-examined the People’s
witnesses, gave a strong closing argument, and succeeded in obtaining
acquittals on the most serious charges facing defendant — the three
attempted murder counts (one relating to the Moody shooting and the
others stemming from the stabbings of Calwell and Sherman).

The court also found that, in any event, counsel’s lack of use of the information from Aaron’s attorney did not deprived the defendant of effective assistance of counsel.  Importantly, the court noted that the defendant would not have been able to do anything meaningful with the information.  He could not have called Aaron to the stand (since he would have asserted the privilege against self-incrimination).  Other witnesses to the proffer could not have testified about its substance because the statement that the defendant did not shoot the victim and was not present was not against Aaron’s penal interests.  Likewise, raising a Brady claim during the trial would not have resulted in a sanction against the People because:

had the statement been turned over, there would have been no avenue for
defense counsel to admit it into evidence, either in the joint trial of
the Ennis brothers or in a separate trial of defendant had severance
been granted.

The court noted, however, that the People’s failure to disclose the proffer "cannot be condoned."

So what are the key points to be learned from this case?

• An ineffective assistance of counsel claim will not succeed without a showing that the trial attorney did not offer meaningful representation.  A single or even series of judgment calls, which in retrospect were not wise moves, will not suffice to garner a new trial unless really severe.
• Proffer sessions of one co-defendant are difficult for other co-defendants to introduce into evidence.
• As always, the best practice of a prosecutor is to disclose everything that is even remotely exculpatory even if the information is not, itself, admissible in evidence. 

(LC)