2024 IL App (5th) 230084-U NOTICE NOTICE Decision filed 08/14/24. The This order was filed under text of this decision may be NO. 5-23-0084 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Williamson County. ) v. ) No. 18-CF-667 ) DEVIN O’DANIELL, ) Honorable ) Michelle M. Schafer, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
JUSTICE SHOLAR delivered the judgment of the court. Justices Boie and McHaney concurred in the judgment.
ORDER
¶1 Held: The circuit court’s order granting defendant’s motion in limine, barring introduction of defendant’s video-recorded interview with law enforcement, is reversed where the probative value is not substantially outweighed by the danger of unfair prejudice.
¶2 Defendant was charged with first degree murder for the death of his infant son, C.O. Prior
to trial, defendant filed a motion in limine, seeking to bar the introduction of his video-recorded
police interview. The Williamson County circuit court granted the motion in limine, barring the
State from presenting the video recording in its entirety. Pursuant to Illinois Supreme Court Rule
604(a)(1) (eff. Mar. 8, 2016), the State seeks interlocutory review of the circuit court’s order. For
the following reasons, we reverse and remand for further proceedings.
1 ¶3 I. Background
¶4 On November 26, 2018, the State charged defendant by three-count information related to
the death of C.O. Count I charged defendant with aggravated battery of a child, a Class X felony,
in that on November 23, 2018, defendant committed a battery and knowingly caused bodily harm
to C.O., in that defendant dropped C.O. on the floor causing a skull fracture and bleeding. 720
ILCS 5/12-3.05(b)(1) (West 2018). Count II charged defendant with aggravated domestic battery,
a Class 2 felony, in that on November 23, 2018, defendant caused great bodily harm or permanent
disfigurement to C.O., defendant’s child, by dropping C.O. on the floor. Id. § 12-3.3(a). Count III
charged defendant with domestic battery, a Class A misdemeanor, in that defendant knowingly
made physical contact of a provoking nature with Claudia Bolivar, defendant’s girlfriend, in that
he pushed Bolivar to the ground. Id. § 12-3.2(a)(2).
¶5 On December 12, 2018, the State filed an amended information. The State amended count
I to allege that on November 23, 2018, defendant intentionally caused great bodily harm to C.O.
in that defendant applied significant force to the body of C.O., causing multiple layers of bleeding
in the brain, optical nerve hemorrhage, and other injuries associated with closed-head injuries,
resulting in C.O.’s death. The State also added count IV, first degree murder, in that defendant,
without lawful justification, by some means applied significant force to the body of C.O. knowing
such act created a strong probability of death or great bodily harm to C.O., ultimately causing
C.O.’s death. Id. § 9-1(a)(2).
¶6 Detective Maria Dwyer indicated by affidavit of probable cause and through testimony
provided at a preliminary hearing and arraignment held on December 18, 2018, that on November
23, 2018, three-month-old C.O. was taken to the hospital by his mother, Claudia Bolivar, where
hospital staff found that C.O. was examined and found to be flaccid, without a pulse, not
2 responding, cyanotic, and almost at room temperature. Hospital staff observed bruising to C.O.’s
left upper lip and left ear. A CT scan revealed a skull fracture and “fresh brain bleed.” A radiologist
expressed concern about a prior injury in the same area of C.O.’s head.
¶7 Claudia was interviewed and advised law enforcement that she was at work between 5:30
p.m. and 9:30 p.m. and C.O. was left in the sole care of his father, the defendant. When Claudia
returned to the residence, she found C.O. and defendant in the living room together with the lights
off. Claudia picked up C.O. to change his diaper but “noticed he felt very limp.” Claudia turned
the lights on and observed that C.O. had “a bloody nose, a bruise on his nose, a bruise on his eye,
and a bruise on the left side of his face.” Claudia asked defendant what happened to C.O., but
defendant continuously replied that nothing had happened.
¶8 Claudia attempted to secure C.O. in his car seat, and defendant tried to prevent her from
leaving by pushing her down to the ground several times, and raised his arm back as though he
was going to strike her with the back side of his hand. Defendant took the car seat containing C.O.
from Claudia’s possession, took C.O. out of the front door, sat on a porch chair, and began to
smoke a cigarette.
¶9 Claudia advised that she grabbed the car seat and took C.O. through the house and out the
back door. Claudia contacted a neighbor across the street and asked for help. The neighbor,
Rashawn McFadden, called the police without allowing Claudia inside of their home. During the
time that Claudia waited outside of McFadden’s home, defendant again took the car seat containing
C.O. Defendant eventually placed the car seat on the ground next to her vehicle. Claudia was able
to place C.O. inside of her vehicle and drove him directly to Heartland Regional Medical Center.
Law enforcement found defendant walking and detained him.
3 ¶ 10 Detective Dwyer of the Marion Police Department and Special Agent Rolape conducted
an interview with defendant at the Marion Police Department at approximately 1:30 a.m. on the
night of the incident. Shortly after the officers finished their interview, two officers with the Illinois
State Police conducted an interview of defendant. During the interviews, defendant stated that he
took care of C.O. while Claudia worked. Defendant indicated that he was the only person with the
baby while Claudia was at work. Defendant initially denied that anything had happened to the
baby and indicated that he never observed any type of injuries to C.O., stating that Claudia came
home and “freaked out.” Later, the video-recorded interview shows defendant becoming visibly
upset and exclaimed, “I dropped the baby!” Defendant indicated that he was feeding the baby and
tripped on a tear in the carpet in the living room and dropped C.O. onto the carpeted floor.
Defendant told law enforcement that C.O. fell approximately 3 to 4 feet. Detective Dwyer
indicated that Dr. Todd Engdahl with the Heartland Regional Medical Center and Dr. Jason
Warner with Cardinal Glennon Children’s Hospital both noted that the event described by
defendant would not have caused C.O.’s injuries. The force applied to C.O.’s body caused bleeding
in his brain, optical nerve hemorrhage, and other injuries associated with a closed-head injury. The
injuries eventually resulted in his death. Defendant’s statements were recorded at the Marion
Police Department, and the video recording included the interviews by both the Marion Police
Department and the Illinois State Police law enforcement officials.
¶ 11 On November 21, 2022, defendant filed a motion in limine alleging that the video-recorded
interview shows that “defendant became visually frustrated and angry with the interrogators.”
Defendant alleged that the “primary purpose of the State presenting the video during its case-in-
chief is to improperly admit otherwise inadmissible propensity and character evidence prior to the
defendant testifying.” Defendant also argued that: “The defendant has the right to not testify in his
4 own defense at trial, and he cannot be compelled to do so. Permitting the State to introduce the
evidence during its case-in-chief improperly permits the State to present testimonial evidence.”
Therefore, defendant asked the circuit court to “enter an [o]rder prohibiting the State from
introducing the video interrogation of the defendant during its case-in-chief.” The defendant’s
motion did not include any legal authority and did not specify any specific portion of the video
that it found objectionable, but sought exclusion of the video-recorded interview in whole.
¶ 12 On December 21, 2022, the circuit court held a hearing on defendant’s motion in limine.
The State argued that “this is basically a motion to keep out the defendant’s statement.” The State
argued that defendant was Mirandized and that:
“He became visibly agitated. When describing what had happened during the incident, he
admits that he dropped the baby. He gets agitated. Both of those detectives leave the room.
Two other detectives come in to speak to him, and those are two male detectives, Warren
and Ramage. They again Mirandize him. He again agrees that he understands his Miranda
rights, and he goes on to speak with them about the incident.”
¶ 13 The State argued that the interview was admissible as “a party-opponent statement” and
contended:
“He is very frustrated. He is screaming at detectives. He is angry. But that is what it is. It’s
his statement. It’s a party-opponent statement. There is at no point anytime where he
initiates any of his rights except for at the end when he says, I’m done talking, which they
quit talking to him. And we are entitled to play his statement.”
¶ 14 Defense counsel clarified that they were “not asking that his statement to the police or the
questions that he answered to the police be suppressed at this point.” Thus, the defendant’s motion
was not a motion to suppress statements. Rather, defense counsel asked that the “State not be
5 permitted to play the actual video recording during its case in chief, not that the witnesses be barred
from testifying as to the interrogation as it occurred.” Defense counsel argued that the video was
“a means for the State to introduce, bluntly, my client’s bad behavior, his frustration, his anger.”
Defense counsel noted that in the event defendant testified, the video could be used in rebuttal as
a prior inconsistent statement or impeachment evidence.
¶ 15 In response, the State argued that the “video-recorded statement is the best evidence, and
under the best evidence rule, we’re entitled to play that.” The State continued: “It’s his state of
mind, it’s his demeanor, and it is the best evidence for us to show the jury.”
¶ 16 After arguments of counsel, the circuit court stated as follows:
“All right. So it’s clearly hearsay. It is best evidence. There is an exception, statement by
a party-opponent. The question becomes, is it more probative than prejudicial? And
without seeing what this is or determining the gravity of the behavior, it’s difficult for the
Court to make a determination. I mean, clearly, transcribed statement of the events could
be presented. If it is the best evidence, it should be allowed. But I honestly need to see what
I’m talking about before I decide if it’s more probative or more prejudicial.”
The circuit court asked the State to “put together the portions that you would both agree that the
State may present” so the court could “examine it to make a full decision.” The circuit court further
noted that “if [defendant] does testify, the State is entitled to use those for impeachment purposes
or any part of the rebuttal in their case.”
¶ 17 The State filed a response to defendant’s motion in limine on January 18, 2023, and
indicated that it had provided the circuit court with an edited copy of the video recording which it
intended to publish to the jury in its case-in-chief. The State argued that it was entitled to play the
entirety of the edited version of the video and cited People v. Clay, 211 Ill. App. 3d 291, 302
6 (1990), for the proposition that “[a]ny statement by an accused person, unless excluded by the
privilege against self-incrimination or other inclusionary rules, may be used against him as an
admission.” The State argued that defendant’s statements were voluntary, relevant, and the
probative value was substantially outweighed by any unfair prejudice, pointing out that there was
nothing unfair about the prejudice defendant suffers from his own actions during an interview.
¶ 18 The State provided the circuit court with a redacted video-recorded interview, attached to
its responsive motion, which this court viewed as part of the record on appeal. The recording is
approximately 57 minutes long. Defendant was initially interviewed by Detective Dwyer, of the
Marion Police Department, and Special Agent Rolape, and defendant waived his Miranda rights.
Defendant told law enforcement that he was home that evening with C.O., and when Claudia
arrived home from work around 9 p.m., she “freaked out” and accused defendant of “dropping”
the baby. Defendant advised law enforcement that the baby was “acting good” during the day and
into the evening.
¶ 19 A detective informed defendant that the baby had a bruise on his eye, at which point
defendant became agitated. Defendant accused the detective of arguing with him. Defendant
reiterated that he did not see anything wrong with the baby while he cared for him. Defendant
asked to call Claudia, and law enforcement advised defendant that Claudia was on the way to the
hospital with the baby.
¶ 20 At this time, defendant became agitated and upset. Defendant yelled at law enforcement
that “they ain’t told me nothin.’ ” A detective told defendant that the baby had a brain bleed,
bruising on his cheek, a bruise behind the ear, and a bloody nose. Defendant yelled that he wanted
Claudia to tell him this. Defendant pounded his chest and yelled, “I’m the father!”
7 ¶ 21 Detectives indicated that they wanted defendant’s cooperation, and defendant yelled, “I
dropped the baby!” Defendant indicated that he dropped the baby in the living room. He stated
that this was an accident. Defendant said he tripped on a rug and dropped the baby. Defendant
stated there was no change in the infant’s behavior after the fall. Multiple times defendant yelled
“take me to jail.” Defendant pointed to one of the detectives and said “done talking to you” and
the detectives exited the room.
¶ 22 Approximately 25 minutes later, although the intervening time was redacted from the
video, two detectives from the Illinois State Police entered the room. Defendant reaffirmed his
Miranda rights. Defendant seemingly was calmer at this point in the interview, and he indicated
that he tripped on a piece of carpet and dropped the baby. The baby fell face-down on the living
room floor, and the baby cried. Defendant did not observe any injuries.
¶ 23 Detectives asked defendant about the blood on a wall in the living room, and defendant
again became loud and frustrated. He asked to speak with Claudia. He indicated that he wished to
go to sleep. Referring to Claudia, defendant indicated that he “told her not to call the cops.”
Defendant again stated, “I dropped him!” Defendant ultimately stated: “we’re done.” Detectives
left the room; however, the video and audio recording continued. Defendant sat alone in the room
stating, “fucking cops, fucking goddamn jokes.” Officers reentered the room, placed defendant in
handcuffs, and indicated that defendant was being charged with aggravated battery of a child and
domestic battery.
¶ 24 On February 7, 2023, the circuit court entered a final order on defendant’s motion in limine.
The circuit court’s order noted that the “portions redacted by [the State] involve periods of time
when Defendant is left alone in the interrogation room, without any substantive interaction with
the arresting officers.” According to the circuit court, “[t]he redacted portions reveal the Defendant
8 punching his hand, cursing at the officers while becoming visibly hostile.” Defendant states, “just
take me to jail.” The circuit court noted that defendant says, “this is why I told her not to call the
cops,” and the circuit court indicated that defendant made “other substantially prejudicial
comments.” The circuit court found that the “probative value is substantially outweighed by the
danger of unfair prejudice.” “The behavior, comments and overall hostile/aggressive demeanor of
Defendant could cast a negative light on Defendant which ultimately may affect the jury’s
consideration.” Therefore, the circuit court ruled that the State “shall not be allowed to present the
video interview” during its “case in chief” and granted defendant’s motion in limine.
¶ 25 On February 15, 2023, the State filed a notice of appeal. On April 24, 2023, the State filed
a certification of substantial impairment, noting that the circuit court’s order in limine excluding
evidence substantially impaired the State’s ability to further prosecute the case.
¶ 26 II. Analysis
¶ 27 On appeal, the State argues that the circuit court’s decision to wholly exclude the evidence
of defendant’s video-recorded statement, which contained inculpatory evidence, was an abuse of
judicial discretion. We agree, and for the reasons that follow, we reverse and remand for further
proceedings.
¶ 28 A. Jurisdiction
¶ 29 Defendant initially argues that this court lacks jurisdiction to consider the circuit court’s
order, because the circuit court did not suppress evidence. Defendant argues that the circuit court’s
order only limited the State’s use of defendant’s video-recorded statement because the circuit court
left open the possibility that the State could introduce the video for purposes of impeachment and
in rebuttal, via other means such as a transcript or testifying witness, as impeachment or rebuttal
evidence or via a different redacted version. The State disagrees, arguing jurisdiction lies under
9 Illinois Supreme Court Rule 604(a), because the circuit court’s order has “the substantive effect”
of suppressing evidence. The State argues that its ability to admit the video-recorded interview as
direct evidence is suppression of that evidence, as other means, such as transcript or testimony of
a witness, would not convey the same information as the video. Further, the State disagrees that
the circuit court’s order invited it to submit further attempts at editing the video-recorded evidence
for the circuit court’s consideration.
¶ 30 Whether the appellate court has jurisdiction to consider an appeal presents a question of
law that we review de novo. People v. Salem, 2016 IL 118693, ¶ 11. Whether the circuit court’s
order is appealable depends on the construction of Illinois Supreme Court Rule 604(a)(1) (eff.
Mar. 8, 2016). People v. Young, 82 Ill. 2d 234, 239 (1980). The interpretation of a supreme court
rule is a question of law reviewable under the de novo standard of review. People v. Drum, 194
Ill. 2d 485, 488 (2000).
¶ 31 Illinois Supreme Court Rule 604(a)(1) gives reviewing courts jurisdiction to consider the
State’s appeal from orders suppressing evidence in a criminal case. People v. Brindley, 2017 IL
App (5th) 160189, ¶ 16. “The supreme court has emphasized that whether an order is appealable
under Rule 604(a)(1) is determined by the substantive effect of the order, not its label or the
underlying motion.” (Emphasis added.) Id. When an order prevents information from being
presented to the fact finder, evidence is suppressed, and the State may appeal that order. Drum,
194 Ill. 2d at 492. When the circuit court’s order solely impacts how the State can present evidence,
however, then the evidence has not been suppressed within the meaning of the rule. In re K.E.F.,
235 Ill. 2d 530, 540 (2009).
¶ 32 First, we note that the circuit court’s final order on defendant’s motion in limine video
interview did not invite the State to submit further edited versions of the video-recorded interview
10 for its consideration. To the extent that defendant argues that the video was not suppressed for this
reason, we disagree. Defendant’s motion is in the nature of a motion in limine and sought to
exclude evidence on the basis of admissibility rather than to suppress evidence that was illegally
obtained. The burden of going forward on the motion in limine was initially on defendant—the
proponent or party seeking to bar the evidence—to show why the evidence should not be admitted
(see People v. Smith, 248 Ill. App. 3d 351, 359 (1993)). As the circuit court ruled that the video
the State intended to present was inadmissible in its entirety, further attempts at edits would be
unwarranted.
¶ 33 In People v. Drum, the State sought to admit the prior testimony of two codefendants who
indicated that they would not testify at defendant’s trial. Drum, 194 Ill. 2d at 491. The circuit court
barred the use of the prior testimony, and the State appealed. Id. The supreme court considered
whether it had jurisdiction under Rule 604(a)(1), ultimately concluding that evidence was
“suppressed” within the meaning of the rule when the circuit court’s order “prevents [the]
information from being presented to the fact finder.” Id. at 492.
¶ 34 The Drum court distinguished its decision in People v. Truitt, 175 Ill. 2d 148 (1997),
abrogated in part by People v. Miller, 202 Ill. 2d 328 (2002). In Truitt, the State intended to use
laboratory reports to prove the content, identity, and weight of a controlled substance pursuant to
section 115-15 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-15 (West 1994)),
which allowed the State, with certain procedural requisites, to establish lab results solely by means
of a lab report, without live testimony from the analyst. Truitt, 175 Ill. 2d at 149-50. The circuit
court held that section 115-15 was unconstitutional, and this ruling required the State to present
testimony from the person who analyzed the substance in question and prepared the lab report. Id.
at 150. The State appealed, and in construing Rule 604(a)(1), the Truitt court concluded that it had
11 no jurisdiction over the matter because the circuit court’s order did not have the effect of
suppressing evidence. Id. at 152-53. The court noted that the order would not prevent any facts or
opinions from being presented to the jury. Id. at 152. Instead, the sole impact of the order would
be on the way those facts and opinions were presented. Id. Instead of merely introducing a lab
report into evidence, the order simply required the State to present testimony from an actual
witness who could testify about the laboratory tests and results. Id.
¶ 35 Similarly, in In re K.E.F., the State sought to admit a recording of the victim’s out-of-court
statement pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/115-10 (West 2006)), and the circuit court indicated it would admit the recording if the State
called the victim to the stand and asked her some questions about her statement pursuant to the
hearing required by section 115-10 of the Code. In re K.E.F., 235 Ill. 2d at 539. For reasons that
the supreme court stated “defy comprehension,” the State chose not to ask the victim the necessary
questions for the admission of the recording. Id. The circuit court, therefore, denied the State’s
motion to admit the recorded statement, and the State filed an interlocutory appeal pursuant to
Rule 604(a)(1). Id. at 535, 537. The appellate court dismissed the State’s appeal for lack of
jurisdiction (id. at 537), and the Illinois Supreme Court affirmed (id. at 541). The supreme court
held that, as in Truitt, “admissibility of the evidence in question was a matter entirely within the
State’s control.” Id. at 540. The court noted that “the prosecution had the option of presenting live
testimony to secure admission of the information it sought to introduce, an option that it declined
to pursue.” Id. The court concluded that, because the minor could still testify to the events relevant
to the charge, “the sole impact of the circuit court’s order [was] on the means by which the
information [was] to be presented” and, thus, it was “not suppression of evidence.” (Emphasis in
original.) Id.
12 ¶ 36 Unlike Truitt and In re K.E.F., here, the contents of the video-recorded interview were not
admissible under any other alternative means. There is a fundamental distinction between a
properly Mirandized video-recorded interview of defendant, closely following the events at
dispute, and the lab reports the State sought to admit in Truitt. Moreover, here, the suppressed
evidence is an actual video recording, which captures defendant’s words and demeanor closely
following the time that the alleged crime was committed. While the defendant argues that the State
could present defendant’s statements by other means, such as testimony of the detectives who were
present during the interviews, testimony, which may or may not be presented, is not a means of
presenting the same evidence contained on the recording. See Brindley, 2017 IL App (5th) 160189,
¶ 23. Therefore, Truitt is not applicable.
¶ 37 Defendant’s reliance upon In re K.E.F. is misplaced. Pursuant to K.E.F., where an order
solely impacts how the State can present the evidence, the evidence has not been suppressed within
the meaning of Rule 604(a)(1), and consequently appellate jurisdiction is lacking. In re K.E.F.,
235 Ill. 2d at 540. Here, under the circuit court’s order, the State did not have the means to secure
the admission of the recording by alternate means. See In re K.E.F., 235 Ill. 2d at 540. As correctly
noted by the State, the State could not compel defendant to testify, reiterate his statements, or
facilitate a means for the jury to see him following the discovery of the injuries to C.O. We agree
with the State that “it is a false equivalence to claim that impeachment and rebuttal provide an
alternate means of presenting the video-recorded statement, when the admission of such evidence
in those circumstances is wholly contingent upon the occurrence of an event over which the State
has no control.” For these reasons, In re K.E.F is distinguishable.
¶ 38 We find People v. Brindley, 2017 IL App (5th) 160189, instructive. In Brindley, the circuit
court granted defendant’s motion to suppress an audio-video recording of a drug transaction. Id.
13 ¶ 23. The State appealed that ruling to this court under Rule 604(a)(1). Id. ¶ 1. Prior to considering
the merits of the appeal, we addressed our jurisdiction. Id. ¶ 14. We rejected defendant’s contention
that the circuit court’s order “simply impacted the means by which the State could present the facts
depicted in the recording” because it could instead present the testimony of the confidential
informant about the transaction. Id. ¶ 22. We explained that “the suppressed evidence [was] actual
audio-video recording of relevant events as they occurred, capturing the defendant’s exact words,
demeanor, and visual manifestations at the time he is alleged to have committed the crimes
charged.” Id. ¶ 23. As such, we found that testimony describing these events was “not the same
evidence” as the recording itself. Id. For this reason, we concluded that the order excluding the
recording had the substantive effect of suppressing evidence and that we, therefore, had
jurisdiction over the appeal. Id. ¶ 24.
¶ 39 Unlike the cases defendant relies upon, here, there is no live witness that can be compelled
to testify to mirror the evidence barred by the circuit court’s ruling. Defendant seems to suggest
that an officer could testify about defendant’s interview, including his reactions and nonverbal
conduct. However, as properly noted by the State, such testimony would merely convey the
officer’s subjective interpretation of the interview and his recollection of defendant’s responses.
A victim’s demeanor when making a statement is very important in determining the weight to be
given that statement. People v. Hubbard, 264 Ill. App. 3d 188, 194 (1994). Where, as here, a video-
recorded interview is available and lawfully obtained, it serves as the most accurate and reliable
evidence of the interview.
¶ 40 In the case before us, the suppressed evidence is the video-recorded interview of defendant
recording relevant events immediately following the death of the infant. The video captured
defendant’s words and demeanor shortly after the time he was alleged to have committed the
14 crimes charged. The State could not compel defendant to testify, reiterate his statements, or
facilitate a means for the jury to see him following the incident at dispute. Therefore, the circuit
court’s order suppressing the recording has the substantive effect of suppressing evidence.
Accordingly, we find that we have jurisdiction to consider the merits of this appeal.
¶ 41 B. Defendant’s Motion in Limine
¶ 42 Turning to the merits, the State argues that the circuit court erred by suppressing the
redacted video-recorded interview of defendant. A circuit court’s decision whether to admit
evidence is reviewed for an abuse of discretion. People v. King, 2020 IL 123926, ¶ 35. “An abuse
of discretion occurs only where the trial court’s decision is arbitrary, fanciful, or unreasonable to
the degree that no reasonable person would agree with it.” People v. Rivera, 2013 IL 112467, ¶ 37.
¶ 43 Defendant’s motion in limine sought to exclude the video recording of defendant’s
statements to police in the hours after defendant’s infant child was found with significant injuries
after being in the sole care of defendant. Defendant argued in the circuit court that the State’s
primary purpose of presenting the video during its case-in-chief would be to improperly admit
otherwise inadmissible propensity and character evidence prior to defendant testifying at trial.
Defendant also argued at the hearing on his motion that the video is “simply a means for the State
to introduce, bluntly, my client’s bad behavior, his frustration, his anger as a means to introduce
those issues to the jury.” Defendant did acknowledge that the statements were admissible and that
the State’s witnesses would not be barred from testifying to the contents of the interrogation. Thus,
the only evidence that defendant sought to exclude was the actual recording, not testimony about
the events depicted on the recording. The motion in limine additionally argued that permitting the
State to play the video-recorded interview impermissibly compelled defendant to testify in his own
defense at trial; however, this argument was abandoned in defendant’s appellate brief.
15 ¶ 44 In the circuit court, the State argued that, pursuant to Illinois Rule of Evidence 403 (eff.
Jan. 1, 2011), the video-recorded interview’s probative value was not substantially outweighed by
its prejudicial effect. The circuit court’s orders recite the balancing test from Rule 403, while also
mentioning propensity evidence consistent with an analysis under Illinois Rule of Evidence 404
(eff. Jan. 1, 2011).
¶ 45 On appeal, the State argues that the circuit court abused its discretion in granting
defendant’s motion in limine, where the probative value of the evidence was not substantially
outweighed by any unfair prejudice to defendant. Defendant maintains that the primary reason the
State sought to introduce the video recording of his police interrogation was to highlight
defendant’s demeanor during the interview, which showed him upset, cursing, and at times
aggressive. Defendant argues that such evidence constitutes evidence of other crimes, wrongs, or
acts which are generally inadmissible if the purpose of such evidence is merely to show that the
person has a bad character and to suggest that the person must have therefore behaved badly
relative to the charged offense. See Ill. R. Evid. 404(b) (eff. Jan. 1, 2011) (“Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action
in conformity therewith” on a particular occasion.). Such evidence includes not just acts which
constitute criminal offenses but any bad or wrongful acts. People v. Davis, 248 Ill. App. 3d 886,
891 (1993).
¶ 46 A motion in limine is addressed to a circuit court’s power to admit or exclude evidence.
People v. Williams, 188 Ill. 2d 365, 369 (1999). Motions in limine are used to bring the circuit
court’s attention to potentially inadmissible evidence and obtain a pretrial order from the circuit
court excluding or permitting the evidence. People v. Owen, 299 Ill. App. 3d 818, 822 (1998).
Because a ruling on a motion in limine can restrict evidence, the motion must be specific and allow
16 the circuit court and the parties to understand what evidence is at issue. People v. Stevenson, 2014
IL App (4th) 130313, ¶ 27. This allows the movant to carefully identify the evidence sought to be
excluded and articulate his or her argument in support. Id. A written motion eliminates confusion
and misunderstanding by defining the evidence at issue and capturing the movant’s arguments. Id.
We mention this importance where, in the present case, neither defendant nor the circuit court cite
the rules of evidence or other legal authority relied upon in the lower court. This lack of authority
clearly caused confusion, where, in this court, defendant’s brief focuses on character evidence
contemplated by Illinois Rule of Evidence 404 (eff. Jan. 1, 2011), while the State’s briefs focus on
the balancing test contemplated by Illinois Rule of Evidence 403 (eff. Jan. 1, 2011).
¶ 47 In resolving the evidentiary issue presented in a motion in limine, a circuit court considers
the movant’s offer of proof. Stevenson, 2014 IL App (4th) 130313, ¶ 28. An offer of proof may be
formal or informal, but an informal offer of proof must identify the complained-of evidence with
“particularity.” Id. Here, because defendant sought the exclusion of the video recording in its
entirety, the offer of proof was an unredacted copy of the recording. The State also submitted a
proposed redacted copy of the recording that it intended to present to the jury in its case-in-chief.
¶ 48 C. Rule 404
¶ 49 Due to the apparent confusion regarding the arguments below and the difference in
understanding of the circuit court’s ruling made apparent by the parties’ briefs to this court, we
will briefly address Illinois Rule of Evidence 404 (eff. Jan. 1, 2011). The law distrusts the inference
that, because a person committed other crimes or bad conduct, he is more likely to have committed
the crime charged. People v. Brown, 319 Ill. App. 3d 89, 99 (2001). Thus, where the other-acts
evidence has no value beyond that inference, it is excluded. People v. Manning, 182 Ill. 2d 193,
214 (1998). Even other-acts evidence that is relevant for a proper purpose will be excluded if its
17 probative value is substantially outweighed by the danger of unfair prejudice. People v. Pikes,
2013 IL 115171, ¶ 11.
¶ 50 First, we note that the video-recorded interview went directly to an element of the crime
charged and, thus, it defies logic that it would be introduced merely to establish defendant’s general
propensity to commit the crime charged. The evidence is directly relevant to whether or not
defendant committed the crime charged. Defendant was the sole caretaker for C.O. during the time
that he was fatally injured. Defendant’s description of the events of the evening go directly to the
elements of the charged offenses. Further, as previously mentioned, an individual’s demeanor
when making a statement is very important in determining the weight to be given that statement.
Hubbard, 264 Ill. App. 3d at 194. Thus, defendant’s demeanor is probative to the jury’s
determination of the credibility of his statements.
¶ 51 Even if we agreed that defendant’s demeanor during his custodial interview constituted
other bad acts as contemplated by Rule 404, such evidence may be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Id. Defendant’s statement to the officers was that he did not see anything
wrong with C.O. while he cared for him, and that nothing out of the ordinary occurred on that
evening. Eventually, defendant stated that the injuries were inflicted by accident, when the
defendant tripped and dropped C.O. Defendant is charged with a specific intent crime and has, at
least prior to trial, indicated his likely defense of accident. Thus, intent is expected to be at issue
in this particular trial.
¶ 52 While defense counsel further argued that propensity was the sole purpose for introducing
the evidence at trial, counsel did not argue that the video-recorded interview was not relevant to
show modus operandi, motive, intent, or any other proper fact, consistent with Rule 404. Counsel,
18 in fact, argued that the evidence of defendant’s statements and demeanor was admissible in another
form, such as by witness testimony or transcript, which would not be the case were the evidence
offered solely to show defendant’s character for hostility, anger, or violence for the sole purpose
of indicating his propensity to commit the present offense. Further, the circuit court’s order did not
indicate that it considered whether the orders were relevant for any purpose other than propensity,
and then conduct a balancing test. The circuit court seemingly conducted the balancing test
consistent with Rule 403.
¶ 53 D. Rule 403
¶ 54 We will now turn to the circuit court’s ruling that defendant’s video-recorded interview
was more prejudicial than probative. We begin with the basic principles governing the
admissibility of a defendant’s custodial statements to police officers. Generally, evidence is
admissible if it is relevant. Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant evidence is defined as
evidence having 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.
Id. To establish the relevance of a piece of evidence the proponent must (1) identify the fact that
it is seeking to prove with the evidence, (2) explain how that fact is of consequence, and (3) show
how the evidence tends to make the existence of this fact more or less probable than it would be
without the evidence. People v. Maldonado, 402 Ill. App. 3d 411, 418 (2010).
¶ 55 Pursuant to Illinois Rule of Evidence 801(d)(2) (eff. Jan. 1, 2011), a defendant’s out-of-
court statements generally are not covered by the rules against hearsay and thus are admissible at
his trial. Harper, 2013 IL App (4th) 130146, ¶ 13. If a defendant receives his Miranda warnings
and chooses to speak with police officers, his statements are admissible as evidence against him
19 so long as the statements given are voluntary. People v. Harris, 2012 IL App (1st) 100678, ¶ 52.
Here, the circuit court found that defendant’s statements were voluntary.
¶ 56 Further, statements made by police officers when questioning a defendant, including
opinions and observations regarding the defendant’s guilt or credibility, are generally relevant and
admissible to demonstrate the statements’ effects on the defendant, to provide context to the
defendant’s responses, or to explain the logic and course of the officers’ interview or investigation.
People v. McCallum, 2019 IL App (5th) 160279, ¶ 56. Such is the case even if the statements
themselves would not be admissible as direct testimony. Id.
¶ 57 Relevant evidence may, however, be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ill.
R. Evid. 403 (eff. Jan. 1, 2011). “Evidence is unduly prejudicial only if it ‘cast[s] a negative light
upon the defendant for reasons that have nothing to do with the case on trial’ [citation], or invites
the jury to decide the case ‘on an improper basis, commonly an emotional one, such as sympathy,
hatred, contempt, or horror’ [citation].” (Emphases in original.) People v. Romanowski, 2016 IL
App (1st) 142360, ¶ 30. A confession is like no other evidence. People v. Rebollar-Vergara, 2019
IL App (2d) 140871, ¶ 119. It is probably the most probative and damaging evidence that can be
admitted against a defendant. Arizona v. Fulminante, 499 U.S. 279, 296 (1991). Here, the
recording is the strongest evidence of defendant’s statements during his interview, as well as
defendant’s demeanor in the hours after the commission of the alleged offense. Defendant recounts
the events that occurred earlier that evening, indicating that nothing occurred that would injure
C.O. Then, defendant changed his version of events, indicating that he dropped the baby, exposing
inconsistencies between defendant’s initial statement and his later statement. The video evidence
20 is undoubtedly relevant, as it contains defendant’s accounting of the events within hours of the
alleged incident. Here, defendant’s child was injured—and ultimately perished—while in
defendant’s exclusive care. Significantly, the circuit court noted that defendant’s “statements are
relevant to the issues in this case, as they go directly to Defendant’s recollection of the events of
November 23, 2018, which gave rise to the Information filed against him on November 26, 2018.”
Further, “[i]t is well settled that testimony regarding a defendant’s silence or nonverbal conduct
during questioning subsequent to a valid waiver of rights is admissible.” People v. Theis, 2011 IL
App (2d) 091080, ¶ 48. It is well within the province of the jury to make inferences from the
defendant’s nonverbal conduct and demeanor. People v. Vaughan, 2015 IL App (3d) 120996-U,
¶ 54.
¶ 58 Because we find the evidence relevant, we next consider whether its probative value is
outweighed by the risk of unfair prejudice. “Under Rule 403, relevant evidence may be excluded
if its probative value is substantially outweighed by the risk of unfair prejudice or confusion of the
issues or the potential for misleading the jury.” People v. Epstein, 2022 IL 127824, ¶ 10. “Of
course, all evidence is prejudicial in that it is intended to impact the fact finder’s decision.” People
v. Gordon, 2017 IL App (3d) 140770, ¶ 25. “ ‘[U]nfair[ ] prejudice’ means that the evidence in
question will somehow cast a negative light upon a defendant for reasons that have nothing to do
with the case on trial.” (Internal quotation marks omitted.) People v. Prather, 2012 IL App (2d)
111104, ¶ 23.
¶ 59 In the case before us, the circuit court determined that the video-recorded interrogation of
defendant unfairly prejudiced him. The circuit court’s order noted that the video “reveal[s] the
Defendant punching his hand, cursing at the officers while becoming visibly hostile.” Defendant
states, “just take me to jail.” The circuit court noted that defendant says, “this is why I told her not
21 to call the cops,” and the circuit court indicates that defendant made “other substantially prejudicial
comments.” The circuit court found that the “probative value is substantially outweighed by the
danger of unfair prejudice.” “The behavior, comments and overall hostile/aggressive demeanor of
Defendant could cast a negative light on Defendant which ultimately may affect the jury’s
consideration.” Therefore, the circuit court ruled that the State “shall not be allowed to present the
video interview” during its “case in chief” and granted defendant’s motion in limine.
¶ 60 While defendant’s demeanor during his custodial interview has the potential to cast him in
a negative light, this was a risk defendant chose when he voluntarily waived his Miranda rights
and agreed to talk to the police. A fact finder should not be prevented from considering defendant’s
demeanor merely because that risk did not work out in his favor.
¶ 61 We cannot reasonably find that the probative value of defendant’s video-recorded
interview, showing him provide a statement that nothing unusual occurred that would have injured
his infant son, and then, exclaiming that he dropped the baby, is substantially outweighed by any
potential for unfair prejudice. Nor can we reasonably find that the video-recorded interview as a
whole unfairly prejudices defendant. Defendant was aware that he was being audio and video
recorded, and he waived his Miranda rights accordingly. Defendant cannot now complain that
there were times that he shouted, yelled, and acted out during his statement. Although defendant
frequently had emotional outbursts during his interrogation, he ultimately stated that he “dropped
the baby.” These outbursts are not “likely to arouse feelings of sympathy, horror, or disgust beyond
those that might arise from the nature of the criminal charges against the defendant.” Prather, 2012
IL App (2d) 111104, ¶ 23. Moreover, as noted by the State, some jurors may view the video
sympathetically to defendant, who frequently inquired about the status of his injured son.
However, both of defendant’s explanation for the events of the evening contained in his video-
22 recorded interview were inconsistent with law enforcement’s findings of blood on a wall of the
home, further bolstering the significant probative value of the evidence. Defendant’s statements
also served to corroborate the testimony of other witnesses regarding the events that occurred
before and after he was alone with C.O. Despite the deferential standard of review, here, we find
the circuit court’s decision to be an abuse of discretion.
¶ 62 Accordingly, we reverse the circuit court’s ruling on defendant’s motion in limine that the
video-recorded interview, as a whole, should be excluded from the State’s case-in-chief on the
basis that its probative value was substantially outweighed by any unfair prejudice as an abuse of
discretion. On remand, the circuit court may (1) reconsider defendant’s motion in limine in
accordance with the views expressed herein, carefully considering specific portions of the video-
recorded interview, and issue an order which gives the parties an accurate understanding of its
reasoning and limitations; (2) require defendant to amend his motion in limine to be more specific
and identify, with particularity, the evidence sought to be excluded and the reasons therefor; or
(3) decline to entertain the motion, or portions thereof, until they are ripe for consideration.
¶ 63 III. Conclusion
¶ 64 For the foregoing reasons, we reverse the order of the circuit court of Williamson County
granting defendant’s motion in limine that suppressed the video recording of defendant’s interview
with law enforcement, and remand for further proceedings consistent with this decision.
¶ 65 Reversed and remanded.