People v. Sheppard

2021 IL App (1st) 181613

191 N.E.3d 91

455 Ill.Dec. 132

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Dywon SHEPPARD, Defendant-Appellant.

No. 1-18-1613

Appellate Court of Illinois, First District, First Division.

Opinion filed March 29, 2021

James E. Chadd, Douglas R. Hoff, and Daniel H. Regenscheit, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Joseph Alexander, and David M. Shin, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 The trial court found Dywon Sheppard guilty of two counts of aggravated domestic battery and two counts of violation of an order of protection. Sheppard received concurrent terms of five and three years in prison. Sheppard claims error in the admission of two disks containing hundreds of jail calls, six of which the State published at trial. Specifically, he challenges the relevance of the first published call and characterizes the unpublished calls as "irrelevant and prejudicial." Sheppard further contends the unpublished calls interfered with his right to present a defense, right to counsel, and right to testify.

¶ 2 We affirm. Although we agree the trial court erred in admitting the only published call Sheppard challenges, we find that error harmless, given the five published calls he does not challenge and the other evidence of his guilt. We reject his arguments about the unpublished calls—both the evidentiary error and the related fair trial claims—because nothing in the record indicates the trial court ever listened to any calls other than the six played in open court.

¶ 3 Background

¶ 4 Before trial, the State moved in limine to admit jail calls into evidence. The State noted Sheppard had made about 40 calls to the victim, Andrea Moore, and "a couple hundred" other calls. The pretrial litigation, including the State's offer of proof, was brief:

"THE COURT: She was accepting jail calls?

[STATE]: They're calls that I'd like to introduce showing the defendant's consciousness of guilt where he's discussing with his other girlfriend and family members that he plans to manipulate the victim in this case so that she won't come to court and testify and he's telling family members that he's going to have the victim send letters and things to the Public Defender.

THE COURT: What is the question you have of me?

[STATE]: Well, I'd like to use them in my case.

THE COURT: Of course you can.

[DEFENSE]: For the record, we would object. I mean, she's reporting these are calls made by the defendant to various—

THE COURT: When I say she can, she is responsible for laying the proper foundation. The rules of evidence are always in play, but the availability of the evidence, that would be admissible. If it is what she says it is, that would certainly be admissible, relevant, and probative of the search for the truth here. Defendant was demanding trial. Discovery is always an ongoing obligation. It was some late-coming discovery, but since he is demanding trial and the State is ready for trial, we're going to proceed to trial."

¶ 5 Sheppard had pled guilty in a domestic battery case involving Moore, whom he had dated for "three or four years." Moore obtained a plenary order of protection and served Sheppard in open court. After the hearing, Moore encountered Sheppard as she attempted to leave the courthouse. She "wav[ed] the Order of Protection in [her] hand" as Sheppard asked her to "take him to the neighborhood."

¶ 6 Later that day, Moore again saw Sheppard while waiting in her truck at a mechanic's shop. Sheppard "walked up, stuck his arm in the door and unlocked the door and hit [her] in [the] face," striking her "[t]wo or three" times with a closed fist. As she tried to call the police, Sheppard ran and, according to Moore, "he was like ‘f*** you, fat b*** and the Order of Protection.’ " Moore testified that Sheppard had bruised the right side of her face, but she did not go to the hospital.

¶ 7 The State directed Moore's attention to recordings she had listened to with prosecutors. She recognized her voice, Sheppard's voice, his mother's voice, and his girlfriend Kwinn's voice. She said she was familiar with various family members and friends of Sheppard's. Moore demonstrated familiarity with how detainees place calls from within the Cook County Department of Corrections. She explained that a recording at the beginning of each call states it is recorded and provides the caller's name. Often "[s]omebody else called for [Sheppard]," suggesting that Sheppard would not "us[e] his own code" to dial out. Ultimately, the parties stipulated to foundational testimony for the jail calls on the two disks.

¶ 8 The State informed the trial court of its intent to play six calls that contained "probably a half-hour of audio." When the State published a call from February 1, 2018, at 4:08 p.m., Sheppard objected to playing it in its entirety in open court. He contended that the call contained "passwords to a face book [sic] page that [Sheppard] does not want—doesn't feel it would be appropriate or required by law for his face book [sic] page to be published in open court."

¶ 9 Sheppard asked for an offer of proof on relevance grounds. The State responded that the call captured a conversation between Sheppard and "who [the State] believe[s] is his brother" in which Sheppard "walk[s] him through—it sounds like he's having his brother get his phone, sign into his phone and go into his face book [sic] so that his brother can message somebody by the name of Michela Harrison and gave [sic] a phone number in order to make communication."

¶ 10 The trial court overruled Sheppard's objection, reasoning "[w]hen you're in jail, and you talk on the phones there, you know you're recorded so there is no privacy expectation anymore." The trial court acknowledged Sheppard's objection: "[I]f you're going to say something incriminating, that's going to be published in open court" and "[i]t may be published in open court if you do something that may be against your penal interest."

¶ 11 The State played the published call, in which an audibly upset Sheppard mentions he had appeared in court that day. He says "they a*** trying to book [him] *** for some bulls***." For most of the call, Sheppard attempts to coordinate collecting money from another woman so he can hire a private attorney. Sheppard, at one point, complains that Moore "wants to go forward" and that "she telling the State and the judge and them all type of other goof a*** s***, you feel me, so I'm finna just go to trial." Confronted by the individual, he claims he "ain't been f***ing with [Moore]" and "she's just mad [he] started back f***ing with Kwinn." The individual on the phone later asks if Sheppard's talked to "mommy," and he responds, "Momma? Yeah, I just got off the phone with her. She said she had a customer. She told me call her back when she get off of work."

¶ 12 The State published four additional calls from February 1, 2018, at 6:50 p.m., 7:28 p.m., 7:55 p.m., and 8:25 p.m. Before resting its case-in-chief, the State introduced a certified copy of the plenary order of protection issued on September 28, 2017, certified copies of three previous convictions for domestic battery, and the two disks containing the published calls and hundreds of unpublished calls.

¶ 13 Sheppard testified in his defense. He largely disputed Moore's testimony and denied he struck her. On cross-examination, Sheppard admitted he called Moore about 40 times from the jail. But he did not recall telling Moore what she should say when she came to court. In response, the State published a sixth call, from April 4, 2018, at 8:42 p.m. On the call, Sheppard suggests that Moore stop cooperating with "them"—telling her, if she appears in court, she should "bust that s*** down" by saying, among other things, that she was "in [her] feelings," she loves him, and he loves her.

¶ 14 In finding Sheppard guilty, the trial court said that "[i]n looking at all of it, with the phone calls, especially, and crucially corroborating, I find Miss Moore to be credible and compelling beyond a reasonable doubt." The trial court also said Sheppard's "rendition about the reason he's calling [Moore], and the dynamics about how they happen to meet right when the Order of Protection got issued, to be fantastic and incredible, not believable." The trial court found Sheppard guilty and sentenced him to concurrent terms of five and three years in prison.

¶ 15 Analysis

¶ 16 Sheppard argues that the trial court erred in admitting the first published call, characterizing it as "irrelevant." He also takes issue with the trial court admitting the two disks containing the six published calls, as the disks contained "hundreds of irrelevant and prejudicial phone calls." Sheppard claims these evidentiary errors deprived him of due process by interfering with his right to present a defense, right to counsel, and right to testify.

¶ 17 The State asserts the first published call was relevant and, in the alternative, harmless. Further, the record lacks evidence that the trial court heard, let alone considered, the unpublished calls.

¶ 18 We review the trial court's decision to admit evidence for an abuse of discretion. People v. Ruback , 2013 IL App (3d) 110256, ¶ 24, 370 Ill.Dec. 547, 988 N.E.2d 745. An abuse of discretion occurs where the trial court's decision to admit evidence is arbitrary, fanciful, or unreasonable to the degree no reasonable person would agree with it. Id.

¶ 19 First Published Call

¶ 20 A threshold requirement for admissibility that every item of evidence must meet is relevance. People v. Dabbs , 239 Ill. 2d 277, 289, 346 Ill.Dec. 484, 940 N.E.2d 1088 (2010). Relevance means "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ill. R....