People v. Lee

2021 IL App (1st) 192109-U

Opinion

2021 IL App (1st) 192109-U No. 1-19-2109 Order filed May 24, 2021 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 10259 (01) ) ARCHIE LEE, ) Honorable ) Joan Margaret O’Brien, Defendant-Appellant. ) Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court. Justices Pierce and Coghlan concurred in the judgment.

ORDER

¶1 Held: We affirm the trial court’s judgment finding no error in rulings on Lee’s pretrial motion to dismiss, the State’s motion in limine, and the motion for a new trial reasserting those claims. We similarly find no error in the trial court’s decision not to order transcripts of the hearings over which she did not preside before ruling on the motion for a new trial.

¶2 Chicago police officers, responding to a call of a burglary in progress at a restaurant,

arrived and arrested Archie Lee inside. The first responding officer drove a marked squad car,

equipped with a camera mounted on the dashboard. The camera only activates when the officer

turns on the emergency equipment, and here the officer turned his lights and siren off before No. 1-19-2109

arriving. The camera had recorded video for a few minutes before the officer received a call about

the burglary.

¶3 Before trial, Lee’s counsel moved to dismiss the charges arguing the State had improperly

allowed the squad car video to be “purged.” A subpoena response from the Chicago Police

Department shows that a video from the relevant officer’s squad car had been purged on the

Department’s 90-day retention schedule. After a hearing at which the officer testified he pulled up

to the restaurant facing away from the building and so would not have captured video of anyone

outside the restaurant, the trial court denied Lee’s motion. The court granted the State’s motion in

limine barring Lee from putting information about the video “purge” in front of the jury.

¶4 Lee now asks us to reverse asserting error in both the trial court’s pretrial rulings regarding

the video. Considering the record in totality, we find the evidence insufficient to support the

existence of video from the officer’s squad car for the relevant time. Therefore, the trial court

properly denied Lee’s motion to dismiss and properly granted the State’s motion in limine. We

also find no error in the trial court’s conduct of proceedings on Lee’s motion for a new trial, and

affirm his conviction and sentence.

¶5 Background

¶6 Natividad Cortez owned the Rainbow Beach Sub Shop at 7520 South Exchange Avenue,

Chicago. On June 9, 2016, Cortez went to work at 8:00 a.m. and stayed until about 4:00 p.m. When

he left, some of his employees were still there. Before the shop closes at 7:00 p.m., the employees

are supposed to clean up, lock the doors, and close the gates. The back door has two parts—a large

metal door with a small window near the top and a metal mesh outer door. The shop has security

cameras.

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¶7 One of Cortez’s employees, Roland Daniels, left at 6:30 p.m. for a second job at a nearby

restaurant. Nothing inside Rainbow Beach was damaged when he left. While driving a delivery

for his second job around 12:30 a.m. on the morning of June 10, he passed Rainbow Beach and

everything looked normal. He went by again around 2:00 a.m., taking a coworker home. His

coworker heard a sound, and they turned down the music in the car. Daniels then heard “a real

loud banging noise” coming from the side of Rainbow Beach. He saw “two black males” trying to

get into the shop. Though he could not see their faces, he could tell the shorter one was “beating

and prying the door,” and the taller one was “looking and checking.”

¶8 Daniels tried to charge his phone at a nearby Metra station, but when it would not charge

fast enough, he went to a nursing home down the street and called 911. The police arrived and

“came out [of the shop] with two guys.” Daniels was, again, unable to see their faces.

¶9 Chicago Police Officer Daniel Brown received a call about a burglary in progress at

Rainbow Beach at about 2:30 a.m. When he arrived nine minutes later, he heard a loud banging

sound coming from inside the restaurant. Brown’s partner called for backup and, while they

waited, Brown noticed the rear door had been damaged. After backup arrived, Brown led the

officers inside the shop. He saw Lee crouched down next to the ATM in the dining room and

codefendant, Kevin Creed, across the dining room. Both had on gloves. Brown noticed that the

wires to the security cameras appeared to have been cut, the cash register appeared to have been

pried open, and the ATM was partially disassembled and had crowbars sticking out of the bottom.

¶ 10 Brown acknowledged that there was no video from inside his squad car, despite his car

having a camera. He explained that the camera only records when his lights are activated. On the

way to Rainbow Beach, he turned his lights off a few blocks away because he did not want to alert

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possible offenders when he arrived. To the best of his knowledge, because he had turned his squad

car lights off, the camera was not recording.

¶ 11 Later that morning, Cortez identified several photographs of damage to the outer metal

screen door, a broken window on the inner “master door,” the broken ATM, and “cracked” or

“busted” security cameras. He also identified photographs of two crowbars and a screwdriver.

Evidence Technician Jessica Harris collected the crowbars and screwdriver. Her examination,

however, revealed no surfaces suitable for recovering fingerprints.

¶ 12 Chicago Police Detective Edmond Beazley interviewed Lee and Creed the morning of their

arrest. Lee admitted the two had broken into the restaurant because they were experiencing money

and drug problems. Lee told Beazley that the two had taken turns prying open the back door and,

after realizing there was no money in the cash register, they set to work on the ATM. They were

working on opening the bottom part of the ATM when arrested. Creed told a similar story, adding

that the two had driven from Rockford on June 9. Creed admitted taking turns with Lee to get into

the restaurant, but declined comment about anything to do with the ATM or security cameras.

¶ 13 Creed testified on Lee’s behalf, distancing himself from his statement to Beazley. Creed

testified he alone pried open the back door and broke into Rainbow Beach and Lee was nowhere

near the shop when Creed tried to break open the ATM. According to Creed’s testimony, he had

dropped Lee off at his sister’s house much earlier on June 9.

¶ 14 After hearing this evidence, a jury found Lee guilty of one count of burglary and one count

of possession of burglary tools.

¶ 15 Lee’s counsel filed a motion for a new trial alleging two pretrial errors. She had moved to

dismiss Lee’s indictment on the ground that one of the squad car videos responding to the burglary

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had been “ ‘purged’ based on the [Chicago Police] department’s retention schedule.” According

to Lee, there would have been squad car video “material to disproving the State’s version of

events.” At a pretrial hearing, Brown had testified that he parked facing away from the restaurant

when he pulled into the parking lot. The trial court denied Lee’s motion finding the purged video

would not have shown anyone inside or outside Rainbow Beach, given the angle of the squad car.

¶ 16 The State had also filed a motion in limine asking the trial court to exclude “any testimony

or reference about the lack of or destruction of in-car squad camera” video. The trial court allowed

Lee’s counsel to elicit testimony that there was no squad car video and to ask why there was no

video and barred any testimony “about something being purged.”

¶ 17 At the hearing on Lee’s motion for a new trial, his counsel argued that both decisions

prejudiced her defense because her theory had been that Lee was walking up to the scene when

police arrived, and was not inside. In her view, the purged squad car video would have been the

best evidence of that theory. The State responded that the purged video would not have shown

anything Lee believed it would have because the video had been turned off before officers arrived.

After considering these arguments, the trial court denied Lee’s motion for a new trial.

¶ 18 After a hearing, the trial court sentenced Lee to eight years in prison.

¶ 19 Analysis

¶ 20 Lee argues the trial court should have granted his motion to dismiss based on the

destruction of Brown’s squad car video and should have denied that portion of the State’s motions

in limine preventing him from eliciting testimony about the video’s destruction. Alternatively, Lee

argues that new evidence at trial rendered the trial court’s decision to deny his motion for a new

trial on either of those grounds unreasonable. Finally, Lee argues we should at least vacate the trial

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court’s denial of his motion for a new trial on the ground that the court did not consider all the

relevant evidence before ruling, namely transcripts from the hearings on the challenged motions.

We disagree with Lee’s arguments and affirm.

¶ 21 Missing Squad Car Video

¶ 22 Lee primarily argues that the trial court should have dismissed the indictment against him

because the Chicago Police Department “purged” squad car video in violation of People v. Kladis,

2011 IL 110920. Lee also argues that the destruction of Brown’s squad car video violated his due

process right to present a defense. See generally People v. Newberry, 166 Ill. 2d 310 (1995). The

State responds that both arguments fail because no evidence indicates that the video from Brown’s

squad car ever existed and, if it did exist, it would not have been materially exculpatory. As to

Lee’s due process claim, the State argues that it did not act in bad faith (assuming a purge) and so

no due process violation occurred. We agree with the State that there is insufficient evidence that

squad car video of the incident existed, and so do not determine whether the State acted in a manner

implicating Lee’s due process rights. See In re E.H., 224 Ill. 2d 172, 178 (2006) (“cases should be

decided on nonconstitutional grounds whenever possible”).

¶ 23 Video recordings made during police interactions with civilians are generally discoverable

in criminal proceedings. See Kladis, 2011 IL 110920, ¶29. These recordings “assist in the truth-

seeking process” as they provide objective evidence confirming or refuting witness testimony. Id.,

¶ 34. The State, accordingly, must preserve relevant video recordings when requested before the

video’s scheduled destruction. Id., ¶¶ 38-39. Sanctions for discovery violations fall within the

discretion of the trial court. We will not overturn a decision to impose or abstain from imposing

sanctions absent an abuse of the court’s discretion. Id., ¶ 42.

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¶ 24 Lee first argues the trial court erred in denying his motion to dismiss because the State’s

failure to ensure the preservation of Brown’s squad car video violated the retention requirements

of the criminal eavesdropping statute. The statute allows for exceptions to liability for

eavesdropping when, potentially relevant here, “recordings [are] made simultaneously with the

use of an in-car video camera recording of an oral conversation between a uniformed peace officer,

who has identified his or her office, and a person in the presence of the peace officer whenever (i)

an officer assigned a patrol vehicle is conducting an enforcement stop; or (ii) patrol vehicle

emergency lights are activated or would otherwise be activated if not for the need to conceal the

presence of law enforcement.” 720 ILCS 5/14-3(h) (West 2020). These recordings “shall be

retained by the law enforcement agency *** for a storage period of 90 days” or until the final

disposition of any proceeding in which they are sought to be used. Id. § 14-3(h-15).

¶ 25 Assuming, without deciding, the eavesdropping statute applies to the disputed recording,

Lee failed to meet his burden to establish facts warranting dismissal of the charges against him.

People v. Young, 220 Ill. App. 3d 488, 492 (1991) (defendant seeking dismissal “bears a heavy

burden of showing actual and substantial prejudice”). Lee cannot make that showing because he

did not produce evidence at the hearing on the motion to dismiss that Brown’s squad car camera

video had been activated during the relevant time or, if it was, that it showed anything relevant to

the charges against him.

¶ 26 Indeed, Lee only argues that the video would have captured images of him outside the

Rainbow Beach, contradicting the officers’ trial narrative that they arrested Lee inside. But the

trial court resolved that factual question against him. Brown testified at the hearing on the motion

to dismiss that he parked in the Rainbow Beach lot facing the street, not the shop. Lee argues

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Brown was equivocal, saying things like “I believe” and “I think so.” The trial court’s ruling on

the motion to dismiss acknowledged that Brown’s testimony was “to the best of [his] knowledge,”

and Brown’s minor qualifications do not convince us that the trial court’s resolution constituted

an abuse of discretion.

¶ 27 Had we any doubt that the trial court’s ruling on Lee’s motion to dismiss was correct, we

resolve it in the State’s favor based on Brown’s trial testimony. See, e.g., People v. Strong, 316 Ill.

App. 3d 807, 814 (2000) (where defendant reasserts issue raised in pretrial motion in motion for

new trial, court can consider motion hearing testimony and trial testimony). Brown explained as

he had at the motion to dismiss hearing, that his squad car only recorded video when he activated

his “emergency equipment.” But he turned off his lights and sirens as he approached Rainbow

Beach, and so the camera would not have been recording. At the hearing on the motion to dismiss,

Lee’s counsel did not ask questions concerning whether Brown’s lights or siren (or both) remained

on when he arrived. Nothing in the record contradicts Brown’s trial testimony.

¶ 28 The record, when considered in its entirety, shows no video of the incident. The State

cannot have committed a discovery violation for failing to ensure preservation of a video that did

not exist. People v. Strobel, 2014 IL App (1st) 130300, ¶ 11. The trial court did not abuse its

discretion in denying Lee’s motion to dismiss and did not err in denying his motion for a new trial

raising the same claim.

¶ 29 Motion in Limine

¶ 30 Lee also argues the trial court erred in granting the State’s motion in limine precluding him

from eliciting testimony about the destruction of Brown’s squad camera video. The State responds

that no video of the officers’ actions at the Rainbow Beach ever existed, and the trial court properly

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granted its motion. As with Lee’s motion to dismiss, we review the trial court’s decision for an

abuse of discretion. E.g. People v. Gliniewicz, 2018 IL App (2d)170490, ¶ 32.

¶ 31 In its motion in limine, the State explained that Brown’s squad car camera recorded from

2:25:55 a.m. to 2:28:49 a.m. Brown did not receive the call to go to the Rainbow Beach until 2:31

a.m. and did not arrive until 2:39 a.m. The State argued, based on the video log, the squad car’s

camera could not have captured video of Lee’s arrest or the officers’ approach to the restaurant.

Lee argues we cannot account for this information because the State never substantiated its claims.

But motions in limine often depend on “counsel’s representations or offers of proof.” Id. As long

as the motion is “as specific as possible” and “set[s] out all relevant facts,” the court can rule on

it. Id. The State’s motion contained the specific information the trial court needed to make a

preliminary evidentiary ruling.

¶ 32 The information in the State’s motion showed that Brown’s squad car camera was not

recording and would not have shown the circumstances of Lee’s arrest. Testimony about the

purging of the video would have been irrelevant to Lee’s guilt or innocence; it did not show any

of the events at Rainbow Beach. So the trial court did not abuse its discretion in granting the State’s

motion in limine.

¶ 33 Of significance, rulings on motions in limine are preliminary, and the trial court can always

alter them if or when more information comes out at trial. Id. And, as we have discussed, the

testimony at trial confirmed the State’s representations in its motion in limine. Brown said that his

squad camera was not recording because he had deactivated his emergency lights before arriving.

Trial testimony confirmed the correctness of the trial court’s in limine evidentiary ruling, and we

find no error in denying Lee’s motion for a new trial.

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¶ 34 Failure to Consider Record

¶ 35 As a final alternative argument, Lee claims the trial judge who ruled on his motion for a

new trial failed to consider the whole record in deciding. Because a different judge ruled on the

motion to dismiss, Lee argues, the trial judge should have ordered transcripts and considered the

record of those proceedings. The State responds that nothing contradicted the information elicited

at the hearing on the motion to dismiss and the motion for a new trial. Thus, the transcripts from

the hearing on the motion to dismiss were unnecessary. We see nothing in this record showing the

trial judge had a particular need to order the transcripts and find no error.

¶ 36 The judge presiding over a motion for a new trial need not be the same judge who presided

at earlier proceedings. Somora v. Ahstrom, 6 Ill. App. 3d 1034, 1035 (1972). In Somora, the sole

case on which Lee relies, the judge presiding over the motion for a new trial had not presided over

the trial itself, and counsels’ representations about what happened at trial differed. Id. at 1036.

Here, the motion judge was the trial judge. She heard all the trial evidence. She found the evidence

“overwhelming.” And, even if her review of the claims about the motion to dismiss and motions

in limine were truncated, error would be harmless. As we explained, the trial testimony did nothing

but confirm the soundness of the pretrial rulings, and the judge who ruled on the motion for a new

trial heard all that evidence.

¶ 37 We find no error in the conduct of the proceedings on the motion for a new trial.

¶ 38 Affirmed.

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