The instant case is an appeal by the wife, Lori Perry, from the entry of an order of the circuit court granting the husband, Frank Perry, temporary custody of the parties' children and possession of the home upon hearing on Lori's petition for temporary custody of the children and temporary possession of the home. Lori contends: (1) the circuit court erred in granting Frank temporary custody and exclusive possession of the home because he did not have a pleading on file; (2) the court erred in granting Frank temporary custody of the children; (3) the circuit court erred in admitting into evidence a flash drive containing photographs that were allegedly copies of photos of Lori from an escort service agency Web site; and (4) the circuit court abused its discretion in denying Lori's motion to reopen the proofs to enter Frank's cell phone as rebuttal evidence, as she contended the photos were actually photos on Frank's cell phone.
Finally, Lori argued that the court erred in admitting the flash drive into evidence because Frank did not sufficiently authenticate and establish a foundation for the photographs, and because the photographs were not produced pursuant to Supreme Court Rule 214 (Ill. S. Ct. R. 214 (eff. Jan. 1, 1996)). The standard of review is that the admissibility of evidence rests in the sound discretion of the trial court, and that determination will not be reversed on appeal absent an abuse of discretion. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 92 (1995).
However, the Court addressed Lori's failure to preserve her objections to the evidence based on foundation and Supreme Court Rule 214. At the hearing counsel for Lori objected to the photographs on the flash drive based on: (1) relevance; (2) foundation; and (3) nondisclosure in response to a Supreme Court Rule 214 request.[1] The court ruled the photos were relevant and allowed them into evidence and allowed Lori's counsel an opportunity to examine Frank regarding the photographs. At the hearing
Lori's counsel seemed to abandon the objections and indicated he would like to merely cross-examine Frank as to foundation before the court admitted the evidence. Lori's counsel then cross-examined Frank regarding the photos, asking questions regarding when he downloaded the photos from the Web site and which computer he used to download the images onto his flash drive. Frank testified he searched the Internet for the name "April" and found Lori's pictures on the Web site. Lori never renewed the foundation objection or the Rule 214 objection when the court determined to allow the photos into evidence, nor did she obtain a ruling from the court on her initial objections. Thus, Lori waived her foundation and Rule 214 objections to the admission of the photos.
Further, any error in the court viewing and admitting the photos was invited by Lori's counsel and further waived by Lori's failure to renew the objection and move to strike the evidence.
The court then proceeded to open the files identified as photos of Lori. The second photograph opened as "Chix Escorts" and was a photo of a woman seminude in a tub, captioned "Sweet Little April." Frank identified "Sweet Little April" as Lori. Lori cannot complain that the court's viewing of the photographs was error when her counsel specifically requested the court to view them. "A party cannot complain of evidence which he himself has introduced or brought out." Tokar v. Crestwood Imports, Inc., 177 Ill. App. 3d 422, 428 (1988) (citing Romanek-Golub & Co. v. Anvan Hotel Corp., 168 Ill. App. 3d 1031, 1040 (1988)).
Lori did not renew her foundation objection, nor did she move to strike the evidence. After her counsel finished questioning Frank regarding foundation, the following exchange occurred between Lori's counsel and the circuit court:
"MR. MIRABELLI: I have no further questions on foundation.
THE COURT: Anything else?
MS. TAMELING: Not on foundation, Judge.
THE COURT: And your objection is? I've already ruled on relevance.
MR. MIRABELLI: Judge, you keep ruling on relevance, but I don't know why it's relevant and you never let me make my argument.
THE COURT: Relevance is defined by the four corners of your petition. The petition was filed on March 15th. Count I is for temporary custody, Count II is for temporary support, Count III is for exclusive possession. I can see how this evidence could connect to Count [I] and Count II and Count III. So I told you before — I already told you that it's relevant. Do you have any other objection now that you cross-examined on foundation?
MR. MIRABELLI: No, not at this time.
THE COURT: All right. The objections [sic] having been overruled, Respondent's Exhibit 18 being a flash drive, black in nature from Staples named Relay, R-e-l-a-y, will be admitted and received into evidence over objection."
Thus, Lori waived her foundation objection as well as her Supreme Court Rule 214 objection.
"However, the rule of waiver is a limitation on the parties, and not on the reviewing court." In re Marriage of Kostusik, 361 Ill. App. 3d 103, 114 (2005) (citing In re Madison H., 215 Ill. 2d 364, 371 (2005)). We may decline to apply the rule of waiver and consider the issue on the merits where the case is a matter affecting child custody and the issue is an issue of first impression. See In re Marriage of Kostusik, 361 Ill. App. 3d at 114 (declining to apply the waiver doctrine to an argument despite the party's failure to object regarding an emergency motion for a change in temporary custody).
The Court believed Frank laid a sufficient foundation that the photographs were photographs of Lori. "`In general, photographs are admissible into evidence if they are identified by a witness who has personal knowledge of the subject matter depicted in the photographs and the witness testifies that the photographs are a fair and accurate representation of the subject matter at the relevant time.'" Lambert v. Coonrod, 2012 IL App (4th) 110518, ¶ 29 (quoting People v. Martinez, 371 Ill. App. 3d 363, 380 (2007)). "A photograph `may be excluded if it is irrelevant or immaterial or if its prejudicial nature clearly outweighs its probative value.'" Lambert, 2012 IL App (4th) 110518, ¶ 29(quoting Boren v. BOC Group, Inc., 385 Ill. App. 3d 248, 255 (2008)). "Photographs, like any evidence, may be admitted into evidence when authenticated and relevant either to illustrate or corroborate the testimony of a witness, or to act as probative or real evidence of what the photograph depicts." People v. Smith, 152 Ill. 2d 229, 263 (1992). "A sufficient foundation is laid for a still photograph, a motion picture, or a videotape by testimony of any person with personal knowledge of the photographed object at a time relevant to the issues that the photograph is a fair and accurate representation of the object at that time ***." (Emphasis omitted.) (Internal quotation marks omitted.) People v. Flores, 406 Ill. App. 3d 566, 572 (2010) (quoting Michael H. Graham, Cleary & Graham's Handbook of Illinois Evidence § 401.8, at 135 (8th ed. 2004)).
The photographs of Lori depicted Lori in suggestive poses, and Frank identified that the photographs were of Lori because he recognized her, even though her face was blurred. Contrary to Lori's assertions that Frank did not authenticate the relevant time of the photographs, the record reveals that Frank testified that the photographs are a fair and accurate representation of Lori at the relevant time he downloaded them prior to the hearing on temporary custody because of the length of her hair. Frank specifically testified that at one time it was shorter and then she had added extensions to her hair, and the photographs were an accurate representation of the current length of Lori's hair.
However, whether Frank laid a sufficient foundation to establish that the photographs were copies of photographs from the "Chix Escorts" Web site is a closer question. Lori cites cases from other jurisdictions analyzing the authentication of screen shot images from social network Web sites such as MySpace and determining there was inadequate authentication because anyone can create such an account. See, e.g., Griffin v. State, 19 A.3d 415 (Md. 2011). Lori also cites to United States Equal Employment Opportunity Comm'n v. E.I. Du Pont de Nemours & Co., 2004 WL 2347559 (E.D. La. 2004), as an example of proper authentication where the court found the printout was authenticated where the printout contained the Internet domain address and the date it was printed and the court accessed the Web site and verified the Web page.
Of course, these decisions have no precedential value in our state. However, even in considering decisions from other jurisdictions, we note there is a growing trend nationally to allow similar Web site screenshot evidence, based either on some distinctive evidence that the photo or screenshot had some distinctive characteristic of the Web site or based on authentication by a witness's testimony or affidavit. SeeHaines v. Home Depot U.S.A., Inc., 2012 U.S. Dist. LEXIS 47967, at *23 (E.D. Cal. 2012) (acknowledging that in considering Internet printouts, courts have considered the "`distinctive characteristics'" of the Web site in determining whether a document is sufficiently authenticated); Giggle, Inc. v. netFocal Inc., 2012 U.S. Dist. LEXIS 29622, at *16-17 (S.D.N.Y. 2012) (holding that over 40 screenshots of Web sites showing that third parties have been using a trademark were authenticated by an affidavit from counsel for the defendant).
The trial court denied Lori's motion to reopen the proofs to present Frank's cellular telephone as rebuttal evidence because there was a "chain of custody problem." "To determine whether to permit a party to reopen a case, we consider: `(1) whether the failure to introduce the evidence occurred because of inadvertence or calculated risk; (2) whether the adverse party will be surprised or unfairly prejudiced by the new evidence; (3) whether the new evidence is of the utmost importance to the movant's case; and (4) whether any cogent reason exists to justify denying the request.'" In re Marriage of Carrillo, 372 Ill. App. 3d 803, 814 (2007) (quoting Polk v. Cao, 279 Ill. App. 3d 101, 104 (1996)). "The denial of a motion to reopen proofs is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion." In re Marriage of Sawicki, 346 Ill. App. 3d 1107, 1120 (2004)(citing In re Marriage of Davis, 215 Ill. App. 3d 763 (1991)).
The Court found the trial court properly denied Lori's motion to reopen the proofs because there was no need for further rebuttal evidence. Frank concedes that, in fairness to Lori, there would not have been any surprise or prejudice. However, Lori had already testified in rebuttal that the photographs were on Frank's cell phone, and thus Lori's position on the issue was before the court. Whether the photos were also on Frank's cell phone was not of the utmost importance to Lori's case. There was additional evidence that Lori could not manage the children and was ignoring them and that their schoolwork was suffering.
Additionally, the circuit court identified a cogent reason in denying the request — a chain of custody problem. Here Lori encounters her own evidentiary foundation problem. "[I]f the offered evidence is not readily identifiable or is susceptible to alteration by tampering or contamination, a chain of custody must be proved." Van Hattem v. K mart Corp., 308 Ill. App. 3d 121, 134 (1999) (citing People v. Winters, 97 Ill. App. 3d 288, 289-90 (1981)). "This chain of custody must be of sufficient completeness to render it improbable that the object has either been exchanged with another or subjected to contamination or tampering." Van Hattem, 308 Ill. App. 3d at 134-35 (citing Winters, 97 Ill. App. 3d at 290). The fact that Lori had Frank's cell phone meant that the cell phone was subject to tampering by Lori, especially after the hearing. There was no abuse of discretion in the circuit court's denial of Lori's motion to reopen the proofs.
The Court concluded the following: (1) The circuit court did not err in granting Frank temporary custody and exclusive possession of the home even though he did not have a pleading on file because Lori's motion raised the justiciable issue and she failed to object to Frank seeking custody during the hearing. (2) The trial court's order awarding temporary custody of the minor children to Frank was not against the manifest weight of the evidence or an abuse of discretion where the court considered the statutory factors and the best interest of the children under section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/602(a) (West 2008)). (3) The circuit court did not abuse its discretion in admitting the photographs on Frank's flash drive as photographs of Lori where Frank established a proper foundation and authenticated that the photographs are photographs of Lori, but there was insufficient foundation that the photographs were specifically from the Web site "Chix Escorts." Nevertheless, any error in admission of the photographs on this basis was harmless because the circuit court had other evidence before it that Lori was working as an escort and did not base its decision on the fact that she was working for this particular escort agency, and it had other evidence before it that granting temporary custody to Lori was not in the children's best interest. (4) The circuit court did not abuse its discretion in denying Lori's motion to reopen the proofs to admit Frank's cell phone where there was no need for cumulative rebuttal evidence, the evidence was not of the utmost importance to her case, and the circuit court articulated a cogent reason for denying the request, in that there was a chain of custody problem with the cell phone.
Therefore, the Court affirmed the order of the circuit court.
In re MARRIAGE OF LORI M. PERRY, Petitioner-Appellant, and
FRANK M. PERRY, Respondent-Appellee.
Finally, Lori argued that the court erred in admitting the flash drive into evidence because Frank did not sufficiently authenticate and establish a foundation for the photographs, and because the photographs were not produced pursuant to Supreme Court Rule 214 (Ill. S. Ct. R. 214 (eff. Jan. 1, 1996)). The standard of review is that the admissibility of evidence rests in the sound discretion of the trial court, and that determination will not be reversed on appeal absent an abuse of discretion. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 92 (1995).
However, the Court addressed Lori's failure to preserve her objections to the evidence based on foundation and Supreme Court Rule 214. At the hearing counsel for Lori objected to the photographs on the flash drive based on: (1) relevance; (2) foundation; and (3) nondisclosure in response to a Supreme Court Rule 214 request.[1] The court ruled the photos were relevant and allowed them into evidence and allowed Lori's counsel an opportunity to examine Frank regarding the photographs. At the hearing
Lori's counsel seemed to abandon the objections and indicated he would like to merely cross-examine Frank as to foundation before the court admitted the evidence. Lori's counsel then cross-examined Frank regarding the photos, asking questions regarding when he downloaded the photos from the Web site and which computer he used to download the images onto his flash drive. Frank testified he searched the Internet for the name "April" and found Lori's pictures on the Web site. Lori never renewed the foundation objection or the Rule 214 objection when the court determined to allow the photos into evidence, nor did she obtain a ruling from the court on her initial objections. Thus, Lori waived her foundation and Rule 214 objections to the admission of the photos.
Further, any error in the court viewing and admitting the photos was invited by Lori's counsel and further waived by Lori's failure to renew the objection and move to strike the evidence.
The court then proceeded to open the files identified as photos of Lori. The second photograph opened as "Chix Escorts" and was a photo of a woman seminude in a tub, captioned "Sweet Little April." Frank identified "Sweet Little April" as Lori. Lori cannot complain that the court's viewing of the photographs was error when her counsel specifically requested the court to view them. "A party cannot complain of evidence which he himself has introduced or brought out." Tokar v. Crestwood Imports, Inc., 177 Ill. App. 3d 422, 428 (1988) (citing Romanek-Golub & Co. v. Anvan Hotel Corp., 168 Ill. App. 3d 1031, 1040 (1988)).
Lori did not renew her foundation objection, nor did she move to strike the evidence. After her counsel finished questioning Frank regarding foundation, the following exchange occurred between Lori's counsel and the circuit court:
"MR. MIRABELLI: I have no further questions on foundation.
THE COURT: Anything else?
MS. TAMELING: Not on foundation, Judge.
THE COURT: And your objection is? I've already ruled on relevance.
MR. MIRABELLI: Judge, you keep ruling on relevance, but I don't know why it's relevant and you never let me make my argument.
THE COURT: Relevance is defined by the four corners of your petition. The petition was filed on March 15th. Count I is for temporary custody, Count II is for temporary support, Count III is for exclusive possession. I can see how this evidence could connect to Count [I] and Count II and Count III. So I told you before — I already told you that it's relevant. Do you have any other objection now that you cross-examined on foundation?
MR. MIRABELLI: No, not at this time.
THE COURT: All right. The objections [sic] having been overruled, Respondent's Exhibit 18 being a flash drive, black in nature from Staples named Relay, R-e-l-a-y, will be admitted and received into evidence over objection."
Thus, Lori waived her foundation objection as well as her Supreme Court Rule 214 objection.
"However, the rule of waiver is a limitation on the parties, and not on the reviewing court." In re Marriage of Kostusik, 361 Ill. App. 3d 103, 114 (2005) (citing In re Madison H., 215 Ill. 2d 364, 371 (2005)). We may decline to apply the rule of waiver and consider the issue on the merits where the case is a matter affecting child custody and the issue is an issue of first impression. See In re Marriage of Kostusik, 361 Ill. App. 3d at 114 (declining to apply the waiver doctrine to an argument despite the party's failure to object regarding an emergency motion for a change in temporary custody).
The Court believed Frank laid a sufficient foundation that the photographs were photographs of Lori. "`In general, photographs are admissible into evidence if they are identified by a witness who has personal knowledge of the subject matter depicted in the photographs and the witness testifies that the photographs are a fair and accurate representation of the subject matter at the relevant time.'" Lambert v. Coonrod, 2012 IL App (4th) 110518, ¶ 29 (quoting People v. Martinez, 371 Ill. App. 3d 363, 380 (2007)). "A photograph `may be excluded if it is irrelevant or immaterial or if its prejudicial nature clearly outweighs its probative value.'" Lambert, 2012 IL App (4th) 110518, ¶ 29(quoting Boren v. BOC Group, Inc., 385 Ill. App. 3d 248, 255 (2008)). "Photographs, like any evidence, may be admitted into evidence when authenticated and relevant either to illustrate or corroborate the testimony of a witness, or to act as probative or real evidence of what the photograph depicts." People v. Smith, 152 Ill. 2d 229, 263 (1992). "A sufficient foundation is laid for a still photograph, a motion picture, or a videotape by testimony of any person with personal knowledge of the photographed object at a time relevant to the issues that the photograph is a fair and accurate representation of the object at that time ***." (Emphasis omitted.) (Internal quotation marks omitted.) People v. Flores, 406 Ill. App. 3d 566, 572 (2010) (quoting Michael H. Graham, Cleary & Graham's Handbook of Illinois Evidence § 401.8, at 135 (8th ed. 2004)).
The photographs of Lori depicted Lori in suggestive poses, and Frank identified that the photographs were of Lori because he recognized her, even though her face was blurred. Contrary to Lori's assertions that Frank did not authenticate the relevant time of the photographs, the record reveals that Frank testified that the photographs are a fair and accurate representation of Lori at the relevant time he downloaded them prior to the hearing on temporary custody because of the length of her hair. Frank specifically testified that at one time it was shorter and then she had added extensions to her hair, and the photographs were an accurate representation of the current length of Lori's hair.
However, whether Frank laid a sufficient foundation to establish that the photographs were copies of photographs from the "Chix Escorts" Web site is a closer question. Lori cites cases from other jurisdictions analyzing the authentication of screen shot images from social network Web sites such as MySpace and determining there was inadequate authentication because anyone can create such an account. See, e.g., Griffin v. State, 19 A.3d 415 (Md. 2011). Lori also cites to United States Equal Employment Opportunity Comm'n v. E.I. Du Pont de Nemours & Co., 2004 WL 2347559 (E.D. La. 2004), as an example of proper authentication where the court found the printout was authenticated where the printout contained the Internet domain address and the date it was printed and the court accessed the Web site and verified the Web page.
Of course, these decisions have no precedential value in our state. However, even in considering decisions from other jurisdictions, we note there is a growing trend nationally to allow similar Web site screenshot evidence, based either on some distinctive evidence that the photo or screenshot had some distinctive characteristic of the Web site or based on authentication by a witness's testimony or affidavit. SeeHaines v. Home Depot U.S.A., Inc., 2012 U.S. Dist. LEXIS 47967, at *23 (E.D. Cal. 2012) (acknowledging that in considering Internet printouts, courts have considered the "`distinctive characteristics'" of the Web site in determining whether a document is sufficiently authenticated); Giggle, Inc. v. netFocal Inc., 2012 U.S. Dist. LEXIS 29622, at *16-17 (S.D.N.Y. 2012) (holding that over 40 screenshots of Web sites showing that third parties have been using a trademark were authenticated by an affidavit from counsel for the defendant).
The trial court denied Lori's motion to reopen the proofs to present Frank's cellular telephone as rebuttal evidence because there was a "chain of custody problem." "To determine whether to permit a party to reopen a case, we consider: `(1) whether the failure to introduce the evidence occurred because of inadvertence or calculated risk; (2) whether the adverse party will be surprised or unfairly prejudiced by the new evidence; (3) whether the new evidence is of the utmost importance to the movant's case; and (4) whether any cogent reason exists to justify denying the request.'" In re Marriage of Carrillo, 372 Ill. App. 3d 803, 814 (2007) (quoting Polk v. Cao, 279 Ill. App. 3d 101, 104 (1996)). "The denial of a motion to reopen proofs is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion." In re Marriage of Sawicki, 346 Ill. App. 3d 1107, 1120 (2004)(citing In re Marriage of Davis, 215 Ill. App. 3d 763 (1991)).
The Court found the trial court properly denied Lori's motion to reopen the proofs because there was no need for further rebuttal evidence. Frank concedes that, in fairness to Lori, there would not have been any surprise or prejudice. However, Lori had already testified in rebuttal that the photographs were on Frank's cell phone, and thus Lori's position on the issue was before the court. Whether the photos were also on Frank's cell phone was not of the utmost importance to Lori's case. There was additional evidence that Lori could not manage the children and was ignoring them and that their schoolwork was suffering.
Additionally, the circuit court identified a cogent reason in denying the request — a chain of custody problem. Here Lori encounters her own evidentiary foundation problem. "[I]f the offered evidence is not readily identifiable or is susceptible to alteration by tampering or contamination, a chain of custody must be proved." Van Hattem v. K mart Corp., 308 Ill. App. 3d 121, 134 (1999) (citing People v. Winters, 97 Ill. App. 3d 288, 289-90 (1981)). "This chain of custody must be of sufficient completeness to render it improbable that the object has either been exchanged with another or subjected to contamination or tampering." Van Hattem, 308 Ill. App. 3d at 134-35 (citing Winters, 97 Ill. App. 3d at 290). The fact that Lori had Frank's cell phone meant that the cell phone was subject to tampering by Lori, especially after the hearing. There was no abuse of discretion in the circuit court's denial of Lori's motion to reopen the proofs.
The Court concluded the following: (1) The circuit court did not err in granting Frank temporary custody and exclusive possession of the home even though he did not have a pleading on file because Lori's motion raised the justiciable issue and she failed to object to Frank seeking custody during the hearing. (2) The trial court's order awarding temporary custody of the minor children to Frank was not against the manifest weight of the evidence or an abuse of discretion where the court considered the statutory factors and the best interest of the children under section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/602(a) (West 2008)). (3) The circuit court did not abuse its discretion in admitting the photographs on Frank's flash drive as photographs of Lori where Frank established a proper foundation and authenticated that the photographs are photographs of Lori, but there was insufficient foundation that the photographs were specifically from the Web site "Chix Escorts." Nevertheless, any error in admission of the photographs on this basis was harmless because the circuit court had other evidence before it that Lori was working as an escort and did not base its decision on the fact that she was working for this particular escort agency, and it had other evidence before it that granting temporary custody to Lori was not in the children's best interest. (4) The circuit court did not abuse its discretion in denying Lori's motion to reopen the proofs to admit Frank's cell phone where there was no need for cumulative rebuttal evidence, the evidence was not of the utmost importance to her case, and the circuit court articulated a cogent reason for denying the request, in that there was a chain of custody problem with the cell phone.
Therefore, the Court affirmed the order of the circuit court.
Therefore, the Court affirmed the order of the circuit court.
Appellate Court of Illinois, First District, Fourth Division.
