People v. Bradley

Opinion

No. 3-09-0367

Opinion filed February 4, 2011 _____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2011

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) For the 9th Judicial Circuit ) McDonough County, Illinois Plaintiff-Appellee, ) ) No. 08-CF-184 v. ) ) Honorable John Clerkin, BOBBY BRADLEY, ) Judge, Presiding. ) Defendant-Appellant. ) ______________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion. Justices Schmidt and Wright concurred in the judgment and opinion. ______________________________________________________________________________

OPINION

Following a jury trial, defendant Bobby Bradley was found guilty of two counts of unlawful

delivery of a controlled substance. 720 ILCS 570/401(c)(2) (West 2006). He was sentenced to two

concurrent 12-year terms of incarceration. As part of the evidence at trial and over the repeated

foundation objections of the defense, the State introduced an audio recording of a drug transaction

involving Bradley. The recording was made pursuant to an overhear order granted to the law

enforcement officials investigating Bradley. On appeal, Bradley asserts the audio recording was

admitted in error because it did not comply with the statutory requirements governing eavesdropping

(725 ILCS 5/108A-7(a), (b), 108-8(a) (West 2006)). Giving due deference to the trial court’s findings of fact, we find that in this case sufficient procedural safeguards were taken to bring the

State’s overhear evidence into compliance with the statute. We affirm the trial court.

BACKGROUND

On September 4, 2008, prior to the commencement on January 20, 2009, of defendant Bobby

Bradley’s jury trial on two counts of the unlawful delivery of a controlled substance (720 ILCS

570/401(c)(2) (West 2006)), the State tendered to Bradley notice that “[a] court authorized recording

device was utilized during controlled purchases involving [another subject] and the Defendant.” On

January 7, 2009, the same date he filed several motions in limine, Bradley filed a motion to compel

production of discovery, including copies of any complaints and orders for overhears. In response,

on January 8, 2009, the State provided to Bradley copies of the overhear application and orders, and

disk copies of the audio transmissions of overhears conducted on July 19 and July 29, 2009.

At trial, Officer Eric Lenardt of the Macomb police department testified that on July 29, 2008,

a “controlled” drug transaction was recorded through the participation of a confidential informant

who was equipped with a microphone in her purse. Through the microphone Lenardt was able to hear

the informant transact with the defendant. The audio was simultaneously recorded on a recording

device. Lenardt identified the State’s exhibit 8A as the “original of the recording,” the compact disk,

that was made on July 29, 2008. Lenardt identified the State’s exhibit 8B, another disk recording,

as a “condensed version” of exhibit 8A. Lenardt explained that exhibit 8B was altered to eliminate

approximately 40 minutes during which “nothing [was] occurring,” the parties were “apparently

sitting and watching *** television.” Lenardt identified the State’s exhibit 8C as a timeline of the

entire recording, including the deleted portions and what the deleted portions “might have been.”

Bradley objected to the admission of the State’s exhibits 8A and 8B on the basis of foundation. The

2 trial court sustained the objection “at this point.” Exhibit 8C was admitted without objection.

In response to further questioning and further defense objections to foundation and chain of

custody, Lenardt explained how the disk of the eavesdrop recording was obtained. The

eavesdropping device consists of two components. One component, the transcorder, accompanies

the conversation participant and one component stays with a listener, in this case Lenardt. Both

components of the device record the audio data. The listening component, the one that stayed with

Lenardt, digitally records the conversation on a “compact flash disk” as a backup for any failure of

the transcorder to record. After the overhear, the transcorder is plugged into a computer that is

programmed with software related to the eavesdropping device. The recording is downloaded to a

computer file. Downloading the data to a computer is the only way the recording can be played. The

data from the computer is burned to a disk and the disk is used to make further copies. Recording the

data to a disk is the only way to provide a copy for the court proceedings. The original disk and all

of the copies are retained in evidence. The data is not maintained on the original recording device or

on the flash drive because of limited data memory. For purposes of space and security, the data is

also deleted from the computer once it is downloaded to the disk.

Lenardt testified that in the instant case he had monitored the overhear and the disk produced

from the listening device was a true and accurate copy of what he heard and was an exact copy of the

data downloaded to the computer. The data on the recording device cannot be altered. The data on

the device cannot be rewound or played; the recording device is strictly for recording. The recording

device was turned on throughout the time the confidential informant met with Bradley. Everything

that was recorded in the encounter with the defendant was copied to the original disk, including

Lenardt’s preamble and postamble. All copies of the disk were subsequently sealed and kept in the

3 evidence room. The “Order of Review and Retention of Use of Eavesdropping Device” (hereinafter,

Order of Review) was also sealed. The copy of the recording that was edited for empty time was also

filtered for background noise. Lenardt trained himself to use the overhear device using the

manufacturer’s manual. Lenardt admitted the overhear order required the preservation of the

recording. Lenardt also agreed the data was deleted from the recording device and the computer

before the trial court that issued the overhear order listened to the recording from the disk. The

recording the issuing court subsequently listened to was not exhibit 8A, but rather an exact copy of

exhibit 8A. Bradley continued to object to the admission of the State’s exhibits. Bradley objected that

the evidence produced by the State was “a copy of a copy” of the original overhear and that the

original had been destroyed. Bradley also asserted that the failure of the police to preserve the flash

disk of the recording device violated the overhear order.

The trial court overruled the defense’s “best evidence” objection, finding the recorded data

was not deleted with the intention to defraud because Lenardt believed he retained a true and accurate

copy of the recording. The trial court discussed the Order of Review issued by the trial court that

issued the original overhear order. The trial court noted the Order of Review, dated January 15,

2009, stated that after reviewing the recording, the trial court found the recording was within the

boundaries of the overhear order and that the trial court directed the recording be sealed and

maintained under the custody of Lenardt until further order. The Order of Review further provided

that the recording was not to be destroyed for at least 10 years. The trial court in the instant case

found the police had substantially complied with the Order of Review.

Following further evidence, which included testimony from the confidential informant, the

State renewed its request to admit exhibits 8A and 8B and the defense continued its foundation

4 objection to the introduction of the exhibits. The defense agreed that if the trial court allowed the

introduction of the evidence, exhibit 8B, the edited version of the audio recording, would be the only

necessary version to be presented for listening to the trial court and the jury. Thereafter, the State

offered only exhibit 8B. Outside the presence of the jury, the trial court listened to the recording as

played from exhibit 8B while Lenardt identified the relevant speakers. The trial court found that any

question as to whether Lenardt correctly identified the speakers went to the weight and not the

admissibility of the recording. Bradley’s foundation objection was overruled and exhibit 8B was

admitted into evidence and played for the jury.

The jury found Bradley guilty. He filed a posttrial motion requesting a new trial, in part

because, as argued by the defense, the audio recording was admitted “without adequate foundation

and in violation of 725 ILCS 5/108 A-7.” Asserting he was not objecting to the editing of the

recording, Bradley argued the foundation offered by the State was not adequate to admit a copy of

a copy to be substituted for the original recording. Referring to “725 ILCS 5/108(a)(1) et sequitur,”

as the relevant statute, the trial court found the eavesdropping device used by the police had been

approved by another judge and it was authorized and used by the police substantially according to

law. The trial court further found substantial compliance in that the recording was done with a device

capable of taking testimony or “hearing,” that it was made at the hands of a competent operator, and

that it was authentic and correct. The trial court found there were no changes, additions or deletions

to the recording, that it had been properly preserved and the speakers, who were identified, had

spoken voluntarily and freely. The trial court also considered the destruction of the original recording

had been explained in “excruciating” detail and to the trial court’s satisfaction. The trial court denied

Bradley’s motion for a new trial and he follows with this appeal.

5 ANALYSIS

On appeal, Bradley asserts the trial court erred as a matter of law in admitting the overhear

recording into evidence where the statutory requirements of article 108A of the Code of Criminal

Procedure of 1963 (Code) were not satisfied. 725 ILCS 5/108A-7(a), (b), 108A-8(a) (West 2006).

Bradley also asserts a lack of compliance with the overhear order. The State’s first response to

Bradley’s argument is that he has waived any argument regarding a violation of the Code because he

did not file a pretrial motion to suppress as required by section 108A-9 of the Code. 725 ILCS

5/108A-9 (West 2006). Under section 108A-9(a) of the Code, “[a]ny aggrieved person in any judicial

or administrative proceeding may move to suppress the contents of any recorded conversation or

evidence derived therefrom [on specified grounds].” 725 ILCS 5/108A-9(a) (West 2006). Section

108A-9 further states that “[s]uch a motion shall be made before the proceeding unless there was no

previous opportunity for such motion.” 725 ILCS 5/108A-9(b) (West 2006). To support its waiver

argument, the State relies on People v. O’Dell, 84 Ill. App. 3d 359, 365 (1980), a case in which the

court relied on section 108A-9 of the Code to find the defendant had waived the issue of the

suppression of the petition for an overhear order because the defendant had known of defects in the

petition for seven months prior to trial and yet did not raise the issue until the trial was in progress.

O’Dell, 84 Ill. App. 3d at 365. The O’Dell court characterized the defendant’s delay as

“unnecessary.” O’Dell, 84 Ill. App. 3d at 365.

Under the circumstances in the instant case, we agree with Bradley that the holding in O’Dell

does not dictate that we find he has waived the issue of the suppression of the eavesdropping

evidence. In the instant case, with respect to the eavesdropping evidence, the State responded to the

trial court’s discovery order with a notice on September 4, 2008, indicating “[a] court authorized

6 recording device was utilized during controlled purchases involving [another subject] and the

Defendant.” It was not until Bradley filed a motion to compel discovery on January 7, 2009, that the

State turned over any documents related to and the contents of the eavesdropping recordings. The

completion of this discovery occurred twelve days prior to trial and after Bradley had filed his

motions in limine related to this case. Under these circumstances we consider Bradley did not waive

his right to raise the issue of the eavesdropping evidence by failing to file a motion to suppress prior

to trial.

The State also argues that Bradley has forfeited the issue of the violation of the Code because

he did not both object on the basis of the statute at trial and include the error in a posttrial motion.

The presence of both a trial objection and a written posttrial motion raising the issue are necessary

to preserve an issue for review. People v. Enoch, 122 Ill. 2d 176, 186-87 (1988). In this case, the

State specifically argues Bradley failed to object to the overhear evidence at trial on the basis of a

violation of the Code. The rationale underlying the need for a trial objection to preserve an issue for

review is based upon the need for timely resolution at trial of evidentiary questions. People v. Linus,

48 Ill. 2d 349, 355 (1971). “The salutary consequence of the waiver rule is that [a] party cannot sit

by and permit evidence to be introduced without objection and upon appeal urge an objection which

might have been obviated if made at the trial.” (Internal quotation marks omitted.) Linus, 48 Ill.2d

at 355 (quoting People v. Trefonas, 9 Ill. 2d 92, 98 (1956)); see also People v. Hillier, 237 Ill. 2d

539, 548 (2010) (defendant’s failure to adequately preserve the issue leaves the court with a record

completely barren of any indication of whether defendant’s rights were violated).

In the instant case, we consider Bradley has sufficiently preserved the issue of any violation

of the Code by raising it in a posttrial motion and objecting at trial. The record indicates that at trial

7 Bradley objected to the overhear evidence on the basis of foundation, the best evidence rule, chain

of custody, and violation of a trial court overhear order, which, we note, was issued pursuant to

article108A of the Code. Furthermore, Bradley also elicited testimony from Lenardt that the audio

data was deleted from the device and the computer before the trial court that issued the overhear

order listened to the recording from the disk, as required by the Code. As a result of Bradley’s

concerns, the trial court discussed the Order of Review, which was issued pursuant to section 108A-7

of the Code. The trial court found the police had substantially complied with the Order of Review.

For these reasons, we consider that it was clear at trial that compliance with the Code was a part of

Bradley’s objection to the overhear evidence. As noted by the trial court during the posttrial hearing,

“[the trial court] has spent quite a bit of time on this issue *** [and] commented that [the]

eavesdropping device had been approved by a Judge [and] it was authorized, and it was used by the

police substantially according to law.” Bradley sufficiently objected to the evidence such that a

timely resolution could be made at the trial court level and a sufficient record for review documented.

Bradley’s first substantive argument is that the “copy of a copy” of the eavesdropped

conversation introduced at trial was not “done in such a way as will protect the recording from

editing or alterations.” See 725 ILCS 5/108A-7(a) (West 2006). To the extent that Bradley’s claim

is based on the argument that a condensed version of the overhear was introduced at trial in error,

we find the argument waived. See United States v. Phillips, 596 F.3d 414, 417 (7th Cir. 2010)

(finding admission into evidence of redacted audio recording was not in error where defendant’s only

basis for exclusion was that the recording was redacted). It is clear from the record that Bradley

assented to the redacted version as the version that should be introduced if his objections were not

sustained. At the posttrial proceedings, Bradley reiterated he was not objecting to the introduction

8 of the evidence based on the fact that the audio recording had been condensed. The record also

indicates the trial court that issued the overhear order listened to an intact version of the recording

before issuing the Order of Review.

We consider the essential element of Bradley’s argument is that the “original” recording was

not preserved in that the overhear was deleted from the transcorder, the backup “flash disk” and the

computer onto which the recording was initially downloaded. Bradley asserts, in part, that the original

recording was never turned over to the reviewing judge in violation of the Code’s requirement that

“[i]mmediately after the expiration of the period of the order or extension *** all such recordings

shall be made available to the judge issuing the order.” 725 ILCS 5/108A-7(b) (West 2006). Bradley

maintains that the Code requires the reviewing judge to immediately review the original recording in

order to determine whether the recorded conversation came within the scope of his overhear order.

Bradley also argues that that portion of the Order of Review that requires the recording be maintained

for 10 years is rendered meaningless, in contravention of section 108A-7(b)of the Code, because the

original recording was destroyed on the date it was made. Bradley also argues there is no satisfactory

explanation for why the original recordings were never placed under judicial seal as required by

section 108A-7(b)of the Code. Thus, Bradley’s arguments are predicated in large part upon his

assertion that the destruction of the “original” recordings rendered the evidence introduced at trial

improper.

Bradley asserts that the applicable standard of review in this case is de novo. Statutory

construction is a matter of law that we review de novo. People v. Johnson, 334 Ill. App. 3d 666, 672

(2002). The State, on the other hand, urges an abuse of discretion review. The admission of evidence

is within the sound discretion of the trial court and will not be reversed absent an abuse of that

9 discretion. People v. Tenney, 205 Ill. 2d 411, 436 (2002). We find that to reach a resolution in this

case, we must employ both standards of review.

In answer to Bradley’s assertions that the “original” recording was not preserved, our analysis

of the relevant sections of section 108A-7 of the Code, lead us to conclude that the word “original”

is never used with respect to the requirements of the statute. 725 ILCS 5/108A-7 (West 2006); see

United States v. McLee, 436 F. 3d 751, 764 (7th Cir. 2006) (construing a similarly worded statute,

the court stated, “[d]espite the strenuous efforts of [the defendants] to convince us otherwise, the

word “original” appears nowhere in the statute”). We do recognize that unlike the sophisticated

“capture and preservation system” used by the government in McLee, the system used by the State

in this case was more akin to a commonly used home computer, the use of which, the court in McLee

suggested, would run counter to the intent of the statute that intercepted recordings be protected

from editing or alteration. See McLee, 436 F.3d at 765 (“In the complete absence of any

countervailing evidence, we must accept the accuracy of the government’s description of the

attributes of its computer system, including the absence of any editing or alteration function.”). In

the instant case, as in McLee, the original recording device was not a medium from which data could

be replayed to a listener. McLee, 436 F.3d at 765 (“even if it were possible for the hard drive buffer

to be removed *** and sealed by the court *** it is not apparent that the object being sealed would

be capable of reproducing any recognizable human voices without transfer to another medium”).

However, it is apparent in this case that once the data was downloaded to the police computer using

the appropriate software it was subject to editing and alteration. A copy of the disk was in fact

altered or redacted for presentation at trial. It would seem to us that preservation of the

simultaneously recording “flash disk” that the police consider a “backup” would be a more

10 appropriate medium to protect.

Nevertheless, in the instant case, the defendant has not asserted the audio recording was

substantively altered in any meaningful way by the State. The trial court, after an exhaustive review,

concluded there had been no changes, additions or deletions to the recording that was made available

for trial, that it had been properly preserved, that the police had substantially complied with the

overhear order and the Order of Review, and that there was no intention on the part of the State to

defraud the defendant. The trial court also considered the “destruction” of the original recording had

been explained in “excruciating” detail and to the trial court’s satisfaction. Lenardt testified the

recording was an exact copy of the overhear to which he was privy, that the reviewing judge had

reviewed the overhear in its entirety, and that the recording had been protected under seal and kept

in evidence until the time of trial. Furthermore, the confidential informant, who participated in the

eavesdropping, also testified at trial. Giving the trial court’s findings of fact their due deference, we

consider that under the circumstances of this case, the audio evidence disk introduced as evidence

at trial, although not the “original,” was handled “in such a way as [to] protect the recording from

editing or alterations,” as required under section 108A-7(a) of the Code. 725 ILCS 5/108A-7(a)

(West 2006); People v. Mason, 403 Ill. App. 3d 1048, 1053 (2010) (trial court’s findings of fact

entitled to great deference).

We turn now to Bradley’s other arguments, which are based on the postinterception

requirements of sections 108A-7(b) and 108A-8(a) of the Code. 725 ILCS 5/108A-7(b), 108-8(a)

(West 2006). Bradley’s further arguments are that the recording was not immediately turned over to

the reviewing judge, there is no indication the reviewing judge listened to the recording or that it was

within the scope of the previously entered overhear order, a record of the Order of Review was not

11 maintained with the recording, and the defendant did not receive notice of the overhear as required

by section 108A-8(a) of the Code. 725 ILCS 5/108A-7(b), 108-8 (a) (West 2006).

Where post-interception failures to comply with the statutory requirements of section 108A-7

of the Code are alleged, the test is whether the particular safeguard is a central or functional

safeguard in the scheme to prevent abuses, the purpose that the particular procedure was designed

to accomplish has been satisfied in spite of the error, and the statutory requirement was deliberately

ignored and, if so, whether there was any tactical advantage to be gained by the government. People

v. Nieves, 92 Ill. 2d 452, 458-62 (1982). Thus, in a case where the State stipulated to its failure by

16 days to immediately make available to a reviewing judge recordings made through eavesdropping,

the defendant did not allege the tapes admitted at trial were edited, altered, or constituted an

inaccurate representation of the conversations, there was no evidence of a bad faith attempt by the

State to gain advantage over the defendant, and the defendant was not prejudiced in any way by the

sealing delay, the trial court did not err in admitting the tapes into evidence. Nieves, 92 Ill. 2d at 462-

63.

We consider that Bradley’s post-interception claims are largely refuted by the Order of

Review entered by the judge who approved the original overhear order. As did the trial court, we

must give due deference to the determinations of the issuing judge (People v. Ellis, 122 Ill. App. 3d

900, 903-04 (1984)), who, in this case, stated in the Order of Review, signed on January 15, 2009,

that “after the expiration of the period of the order authorizing use of eavesdropping device, *** [all

recordings made pursuant to the order were] made available to the Judge issuing [the] order.” The

Order of Review further states the reviewing judge listened to “all tapes made as a result of the

[overhear] order and determined that the conversations thereon are within said order.” Furthermore,

12 the reviewing judge ordered the recording sealed and custody maintained by Lenardt. The order

specified the recording not be destroyed for at least ten years and that a copy of the Order of Review

be maintained with the recording. The trial court found the State had substantially complied with the

Order or Review and we find no reason to overturn that finding. As to the notice requirement of

section 108A-8(a)of the Code (725 ILCS 5/108A-8(a) (West 2006)), it has been determined that the

purpose of the notice provision, to make the defendant aware of conversations overheard and enable

him to make appropriate motions to suppress the contents, is satisfied when the State gives notice

pursuant to discovery procedures. People v. Ellis, 122 Ill. App. 3d 900, 904-05 (1984). In this case,

the State notified Bradley on September 4, 2008, that “[a] court authorized recording device was

utilized during controlled purchases involving [another subject] and the Defendant.” Thus, we

consider the requirement of section 108A-8(a) of the Code has been satisfied. 725 ILCS 5/108A-8(a)

(West 2006).

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of McDonough County is

affirmed.