People v. Paino

2021 IL App (3d) 190334-U

• Court: Appellate Court of Illinois
• Decided: November 15, 2021
• Docket: 3-19-0334
• Status: Unpublished

Opinion

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).

2021 IL App (3d) 190334-U

Order filed November 15, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-19-0334 v. ) Circuit No. 17-CF-614 ) CALVIN H. PAINO, ) ) Honorable Clark E. Erickson, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Presiding Justice McDade and Justice Wright concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in denying defendant’s motion to suppress a recording of an alleged drug transaction made pursuant to an overhear order.

¶2 Defendant, Calvin H. Paino, appeals his conviction for unlawful delivery of a controlled

substance. Defendant argues that the Kankakee County circuit court erred in denying his motion

to suppress a recording of the alleged drug transaction because the State failed to satisfy the

requirements of article 108A of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/108A-1 et seq. West 2016)). We affirm. ¶3 I. BACKGROUND

¶4 On October 25, 2017, the State charged defendant by information with four counts of

unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2), (d) (West 2016)). A grand

jury later charged defendant by superseding indictment with the same offenses. The indictment

was returned on November 13, 2017. The indictment alleged that defendant knowingly delivered

a substance containing cocaine to a confidential source on multiple occasions. These transactions

occurred on September 21, 2017; September 28, 2017; and October 3, 2017.

¶5 On April 12, 2018, the State filed a report indicating that it had turned over three DVDs

containing a video and audio recording of the purchase of a controlled substance on October 3,

2017. At a status hearing on April 18, 2018, defense counsel acknowledged that he had received

the DVDs in the mail the day before.

¶6 On March 18, 2019, the matter proceeded to a jury trial on the second count of the

indictment, which alleged that defendant delivered at least 1 but not more than 15 grams of a

substance containing cocaine to a confidential source on October 3, 2017. The parties selected a

jury.

¶7 On March 19, 2019, before the parties had made their opening statements, defense counsel

filed a motion to suppress the audio and video recording of the purchase. The motion alleged that

the recording had been edited and showed a date of May 24, 2014. The motion also alleged that

defendant was not notified about the recording within the 90-day period set forth in section 108A-

8 of the Code (725 ILCS 5/108A-8 (West 2016)). A hearing on the motion occurred that same day.

¶8 At the hearing, Dan Reedy, an assistant state’s attorney, testified that on January 31, 2018,

he tendered to defendant’s counsel the overhear order, the application for the overhear order, the

consent made by the person who would be wearing the wire, and the authorization from the state’s

2 attorney’s office. Reedy also turned over a KAMEG summary and the arrest report. Reedy

identified some notes that he made in the case file indicating that he had turned over these items

to the defense on January 31, 2018.

¶9 The record contains copies of the overhear order, the petition for an order authorizing use

of an eavesdropping device, a consent executed by Special Agent Chris Benoit, and the state’s

attorney’s authorization for a petition and order approving the use of an eavesdropping device. The

overhear order stated that KAMEG was given authorization to use an eavesdropping device for

the purpose of overhearing and recording a conversation between Benoit and defendant between

October 3, 2017, and November 1, 2017.

¶ 10 Benoit testified that on October 3, 2017, he was working for KAMEG as a special agent

and was investigating defendant. He conducted an undercover buy from defendant using a covert

audio and video recording device. He stated that three DVDs marked as State’s exhibits Nos. 1

through 3 contained the audio and video recording captured by the covert device. He had reviewed

the recording. It had not been altered or modified in any way, and it accurately captured the events

that occurred on the date of the incident. Benoit said that State’s exhibits Nos. 1 through 3 were

copies that he had made. Defense counsel asked Benoit why they were not originals. Benoit stated:

“The originals get put into an evidence thing and are placed into our vault.” Benoit believed the

recording was 47 minutes long.1 It was on three different discs in six segments. It did not fit onto

one single disc. The date and time stamp on the video recording was incorrect because every time

the battery on the device ran out, “it reset[ ] back to whatever default time [they] received the

device at.”

1 The three discs comprising State’s exhibit Nos. 1 through 3 are included in the record and contain a recording that is 57 minutes long. There are five 10-minute segments and one 7-minute segment.

3 ¶ 11 Benoit testified that he often recorded a “header” where he stated his name, the date, the

time, and that he consented to the recording. However, he did not record a header for the recording

at issue. Defense counsel noted that each of the DVDs said it had the capacity to run 120 minutes

and asked why the recording was on three discs. Benoit replied that he did not have the technical

knowledge to answer that question. He said that when he transferred the recording onto the discs,

he just inserted a new disc whenever the computer prompted him to.

¶ 12 Benoit testified that if the original disc was put into a computer, the computer would show

that it was created shortly after the transaction. Benoit identified a disc as the “original,” and the

prosecutor placed it in a computer. As the prosecutor placed the original disc into the computer,

he stated: “For the record, I’m breaking the seal.” Benoit stated that if one were to right-click on

the recording file and click on properties, this would show the date and time that the file was

created. Defense counsel indicated that the computer said the file was created on May 24, 2014.

Benoit maintained that the recording was actually made on October 3, 2017. It is unclear if the

“original” that Benoit identified, and the prosecutor placed in the computer was one of the discs

comprising State’s exhibits Nos. 1 through 3 or whether it was a different disc.

¶ 13 After hearing arguments, the court denied the motion to suppress. The court stated that the

items that were disclosed on January 31, 2018, satisfied the requirements of the statute. The court

stated that the purpose of the statute had been satisfied even if there was a slight discrepancy

regarding the 90-day time period. The court also found that there was no evidence that the

recording had been edited or altered.

¶ 14 The trial resumed immediately after the court ruled on the motion to suppress, and the

parties made their opening statements.

4 ¶ 15 Benoit testified that on October 3, 2017, he was in an undercover role posing as a buyer of

narcotics. He met defendant at a rural location to purchase drugs. He wore an audio-video

recording device during the encounter. Benoit gave defendant $200, and defendant revealed

multiple baggies of a substance Benoit believed was heroin. Benoit told defendant he wanted

“powder,” which meant cocaine. Defendant indicated that he could get cocaine for Benoit.

Approximately 20 minutes later, defendant provided Benoit with cocaine, and Benoit provided

defendant with the money.

¶ 16 Benoit identified State’s exhibit No. 4 as the cocaine he had purchased from defendant. A

forensic scientist testified that State’s exhibit No. 4 contained a white substance that weighed 1.5

grams, and it tested positive for the presence of cocaine.

¶ 17 Benoit testified that, after the transaction, he downloaded the content from the audio-video

recording device onto a computer and transferred it onto three DVDs. The recording was played

in court. The recording showed a man, who Benoit identified as defendant, handing a baggie

containing a white powdery substance to Benoit.

¶ 18 The jury found defendant guilty.

¶ 19 Defendant filed a motion for a new trial, which alleged that the video and audio recording

of the purchase should have been suppressed. Defendant alleged that he was not notified of the

recording within the 90-day statutory time period and that the recording was not made in such a

way to protect it from editing and alteration. Defendant alleged that it appeared that the recording

was made months before it was authorized because it looked as though it was summer rather than

fall in the video. Defendant also alleged that the State failed to comply with the statutory

requirements that the court listen to the tapes, determine whether the recording was within the

overhear order, make a record of such determination to be retained with the tapes, seal the

5 recording, and keep the recording in custody where the court ordered. The motion alleged that on

information and belief, the tapes were never sealed or in the custody of anyone other than the State

or KAMEG.

¶ 20 During the hearing on the motion for a new trial, the court asked how defense counsel knew

that the judge who issued the order had not made a determination that the recording was within

the overhear order he had issued. Defense counsel stated that he had asked the State for it. The

court asked defense counsel if he had filed a pretrial motion requesting it, and counsel said he had

not. The court denied the motion.

¶ 21 The court sentenced defendant to a term of imprisonment of seven years and six months.

¶ 22 II. ANALYSIS

¶ 23 Defendant argues that the circuit court erred in denying his motion to suppress because the

recording of the alleged drug transaction failed to satisfy the requirements of article 108A of the

Code (725 ILCS 5/108A-1 et seq. (West 2016)), which permits law enforcement officers to use

eavesdropping devices in certain circumstances after obtaining judicial authorization. We review

a circuit court’s ruling on a motion to suppress evidence using a two-part standard of review.

People v. Brooks, 2017 IL 121413, ¶ 21. The court’s factual findings are reversed if they are

against the manifest weight of the evidence, and the court’s ultimate legal ruling as to whether

suppression is warranted is subject to de novo review. Id.

¶ 24 Defendant argues that article 108A of the Code was violated in that (1) he was not given

notice of the recording within 90 days of the termination of the overhear order; (2) the State failed

to have the judge who issued the overhear order listen to the recording, make a determination that

it was within the overhear order, seal the recording, and retain custody of the recording; and (3) the

State failed to disclose the recording prior to the grand jury proceedings. Defendant contends that

6 these violations of the statute individually and cumulatively require suppression. Defendant

alternatively argues that, in the event we find that any of the foregoing grounds for suppression

were not preserved for appellate review, his trial counsel was ineffective for failing to properly

preserve them. We address each argument in turn.

¶ 25 A. Notice

¶ 26 Defendant contends that the State failed to give timely notice of the overhear pursuant to

section 108A-8(a) of the Code (725 ILCS 5/108A-8(a) (West 2016)). Section 108A-8(a) provides:

“Within a reasonable time, but not later than 90 days after *** the

termination of the period of an order or extension thereof, the issuing or

denying judge shall cause to be served on the persons named in the order or

application ***, a notice of the transaction involving any requested or

completed use of an eavesdropping device which shall include:

(1) notice of the entry of an order ***;

(2) the date of the entry ***;

(3) the period of the authorized use of any eavesdropping

device; and

(4) notice of whether during the period of eavesdropping

devices were or were not used to overhear and record various

conversations and whether or not such conversations are recorded.”

Id.

¶ 27 In the instant case, defendant received the information set forth in section 108A-8(a) on

January 31, 2018—91 days after the termination of the overhear order on November 1, 2017. Thus,

the State failed to strictly comply with the requirements of the statute.

7 ¶ 28 However, not all violations of article 108A require suppression. People v. Cunningham,

2012 IL App (3d) 100013, ¶ 22. “Suppression is only required where there is a failure to satisfy

any of the statutory requirements that directly and substantially implement the legislative intent to

limit the use of overhears.” Id.

“The test is whether (1) the particular safeguard is a central safeguard in the

legislative scheme to prevent abuses; (2) the purpose the particular

procedure was designed to accomplish has been satisfied in spite of the

error; and (3) the statutory requirement was deliberately ignored and, if so,

whether the government gained a tactical advantage.” Id.

¶ 29 Here, the State’s failure to comply with the 90-day notice period did not mandate

suppression. The notice was given only one day beyond the statutory 90-day period. There was no

evidence that the State deliberately ignored the deadline or gained a tactical advantage through the

one-day delay. The purpose of the procedure was “to make the defendant aware of the

conversations overheard and enable him to make any appropriate motions to suppress the

contents.” People v. Ellis, 122 Ill. App. 3d 900, 904 (1984). See also People v. Bradley, 406 Ill.

App. 3d 1030, 1039 (2011). This purpose was satisfied despite the brief delay. Although defense

counsel did not file his motion to suppress until the day the trial was set to begin, he had ample

time to review the recording and file a motion to suppress prior to trial. Defendant was notified of

the overhear order over one year before the trial, and he was provided with the actual recording

approximately 11 months before the trial.

¶ 30 Defendant contends that another purpose of the notice requirement in section 108A-8(a) of

the Code was to prevent tampering and to preserve the integrity of the recording and asserts that

there was evidence of tampering in this case. Specifically, defendant argues that there was evidence

8 that the recording was edited or altered in that: (1) the time stamp of the recording was not

consistent with the purported date of the recording; (2) Benoit failed to include a header stating

the date and time of the recording; (3) the disc stated that it was created on May 24, 2014, when

the parties checked the date in the computer; (4) the recording was split into six different files on

three different discs; (5) much of the recording was a black screen with audio, which would make

it easier for audio to be edited, inserted, or removed; and (6) the weather and foliage in the

recording were not typical of October, when the recording was purported to be made.

¶ 31 The case law cited by defendant in support of his position that a purpose of the notice

requirement of section 108A-8(a) was to prevent tampering concerned a different section of article

108A—namely, the immediacy requirement of section 108A-7(b). See Cunningham, 2012 IL App

(3d) 100013, ¶ 26; People v. Seehausen, 193 Ill. App. 3d 754, 764 (1990). This authority does not

stand for the proposition that a purpose of all sections of article 108A is to prevent editing or

tampering.

¶ 32 However, even if we were to accept defendant’s position that a purpose of the notice

requirement of section 108A-8(a) was to prevent editing or tampering, the circuit court expressly

found that there was no evidence that the recording was altered or edited. This finding was

supported by the evidence at the suppression hearing. Benoit testified that the recording was

created on October 3, 2017, and that it had not been altered or modified in any way. Benoit

acknowledged that the screen went black several times on the recording. He explained that he

placed the recording device in his pocket several times during the transaction, and the screen went

black during the times the device was in his pocket. The time stamp showed a different date than

the date of the transaction because every time the battery on the device ran out, it reset to a default

9 date and time. The recording was contained on multiple discs because when Benoit transferred the

recording onto the DVDs, he inserted a new disc whenever the computer prompted him to.

¶ 33 In finding that there was no evidence that the recording had been altered or edited, the court

implicitly found Benoit’s testimony to be credible, and we defer to the court’s credibility

determination. See People v. Veal, 2017 IL App (1st) 150500, ¶ 10 (“The trial court’s factual

findings are entitled to deference, given that the trial court is in a superior position to weigh the

credibility of witnesses ***.”).

¶ 34 B. Judicial Determination

¶ 35 Defendant argues that the State failed to comply with section 108A-7(b) of the Code (725

ILCS 5/108A-7(b) (West 2016)), which provides:

“Immediately after the expiration of the period of the order, *** all

such recordings shall be made available to the judge issuing the order ***.

The judge shall listen to the tapes, determine if the conversations

thereon are within his order ***, and make a record of such determination

to be retained with the tapes.

The recordings shall be sealed under the instructions of the judge

and custody shall be where he orders. ***

Duplicate recordings may be made for any use or disclosure

authorized by this Article. The presence of the seal provided for in this

Section or a satisfactory explanation for the absence thereof shall be a

prerequisite for the use or disclosure of the contents of the recordings or any

evidence derived therefrom.”

10 ¶ 36 Defendant argues that the State failed to comply with section 108A-7(b) by failing to have

the judge who issued the overhear order listen to the recording, determine if the conversation was

within his order, make a record of his determination to be retained with the recording, seal the

recording, and hold the recording in the custody of the court.

¶ 37 While defendant raised this ground for suppression in his motion for a new trial, he failed

to raise it in his motion to suppress. Accordingly, defendant has forfeited this claim. People v.

Blankenship, 353 Ill. App. 3d 322, 324 (2004) (“A defendant may not argue on appeal that a motion

to suppress should have been granted for reasons not specified in the motion and not argued in the

trial court.”).

¶ 38 Defendant argues that, in the event we find his claim to be forfeited, we may consider it as

a claim that his trial counsel provided ineffective assistance in failing to preserve the issue for

appellate review. “To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate that counsel’s performance was deficient and that the deficient performance

prejudiced the defendant.” People v. Domagala, 2013 IL 113688, ¶ 36. That is, “a defendant must

show that counsel’s performance was objectively unreasonable under prevailing professional

norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’ ” Id. (quoting Strickland v. Washington, 466

U.S. 668, 694 (1984)).

¶ 39 The record in the instant case is not sufficiently developed to determine whether

defendant’s trial counsel provided ineffective assistance in failing to preserve this issue. Because

defendant did not raise this issue in his motion to suppress or object to the admission of the

recording at trial on this basis, the record on appeal contains no evidence as to whether the State

complied with section 108A-7.

11 ¶ 40 For example, defendant asserts that the fact that the record does not contain a judicial

determination that the recording was within the court’s order along with State’s exhibits Nos. 1

through 3 shows that no judicial determination was made. However, it is unclear whether State’s

exhibits Nos. 1 through 3 were the original discs kept in KAMEG’s evidence vault or whether they

were copies made for the trial. See supra ¶ 12. Because the issue was not properly raised and

developed in the circuit court, we cannot infer from the lack of evidence of a judicial determination

in the appellate record that no such determination was made.

¶ 41 Also, defendant correctly notes that neither Benoit nor Reedy testified at the suppression

hearing that the recording of the overhear was presented to the court after it was made. However,

this was not at issue at the suppression hearing and neither party questioned Benoit or Reedy about

presenting the recording to the court. Accordingly, we cannot infer from the lack of testimony on

this matter that the recording was not presented to the court for a judicial determination.

¶ 42 Defendant also asserts that no court order to seal the recording was ever filed. However,

such an order may have been entered prior to the filing of charges in the instant case, in which case

it would not have necessarily been filed in the court file for the instant case. Because defendant

did not properly raise this ground for suppression in the circuit court, we cannot infer from the

absence of an order to seal the recording in the appellate record that the recording was not sealed.

We note that, at one point during the suppression hearing, the State indicated that it was breaking

a seal on one of the original discs. However, the record does not show whether the discs were

sealed by the court, KAMEG, or some other entity.

¶ 43 Defendant also contends that section 108A-7 required the court to retain the original

recording in its custody. Defendant argues that the State failed to comply with this requirement

because Benoit testified that the original recording was kept in KAMEG’s evidence vault, and the

12 State was in possession of the original recording at the hearing on the motion to suppress. However,

Benoit’s testimony did not necessarily demonstrate lack of compliance with the statute. Section

108A-7 required that the recording be kept in custody where the circuit court orders, not

necessarily in the circuit court’s own custody. The record is not sufficiently developed to determine

where the court ordered custody of the recording to be held or if the court even made an order

concerning the custody of the recording.

¶ 44 Thus, we find that the record is not sufficiently developed to determine whether the State

complied with section 108A-7(b) of the Code. As such, we can make no determination as to

whether counsel performed deficiently in failing to raise this issue or whether defendant was

prejudiced by counsel’s failure to preserve the issue. We do not foreclose defendant from later

raising this claim of ineffective assistance of counsel in a postconviction petition, where defendant

would have the opportunity to present additional evidence.

¶ 45 C. Failure to Disclose Prior to Grand Jury Proceedings

¶ 46 Defendant argues that the State failed to comply with section 108A-8(c) of the Code, which

provides:

“The contents of any recorded conversation or evidence derived

therefrom shall not be received in evidence or otherwise disclosed in any

trial, hearing, or other judicial or administrative proceeding unless each

party not less than 10 days before such a proceeding has been furnished with

a copy of the court order and accompanying application under which the

recording was authorized or approved and has had an opportunity to

examine the portion of the tapes to be introduced or relied upon.” 725 ILCS

5/108A-8(c) (West 2016).

13 ¶ 47 Defendant argues that the State failed to comply with section 108A-8(c) because it failed

to turn over the overhear order, application, and recording prior to the grand jury proceeding on

November 13, 2017. Defendant asserts that the grand jury proceeding was a judicial proceeding

such that the requirements of section 108A-8(c) applied. Defendant contends that it would have

been necessary for the State to disclose the contents of the recorded conversation at the grand jury

proceeding because the entirety of the alleged offense was contained on the recording. Defendant

alternatively argues that his trial counsel was ineffective for failing to raise this issue.

¶ 48 Defendant has forfeited his argument that the State failed to comply with section 108A-

8(c), as he did not raise it in his motion to suppress, a trial objection, or his posttrial motion. See

People v. Woods, 214 Ill. 2d 455, 470 (2005).

¶ 49 Defendant has also forfeited his argument that his trial counsel was ineffective for failing

to raise this argument, as he has cited no authority for the proposition that a grand jury proceeding

is a “judicial proceeding” within the meaning of section 108A-8(c). See Ill. S. Ct. R. 341(h)(7)

(eff. May 25, 2018). “This court is not a repository into which the parties may foist the burden of

argument and research.” People v. Thomas, 2020 IL App (1st) 170310, ¶ 28.

¶ 50 D. Cumulative Error

¶ 51 We reject defendant’s argument that the cumulative effect of the asserted errors warranted

suppression. We have found that defendant’s claim that the State failed to comply with the notice

requirement of section 108A-8(a) of the Code did not individually warrant suppression, and

defendant has not shown any further violations of article 108A. The alleged violations of sections

108A-7(b) and 108A-8(c) were forfeited. The record is not sufficiently developed whether error

occurred regarding the alleged violation of section 108A-7(b). Defendant has not shown that the

State was required to comply with section 108A-8(c) prior to the grand jury proceeding, as he

14 failed to cite authority to support the proposition that a grand jury proceeding is a “judicial

proceeding” within the meaning of the statute.

¶ 52 Finally, we note that defendant asserts on appeal that his trial counsel made “several

veritable challenges to the integrity of the recording.” Defendant argues that the provisions of

article 108A were meant to prevent tampering and that this purpose was not accomplished despite

the multiple alleged violations of article 108A he raised on appeal. It is unclear if defendant is also

arguing on appeal, as he did in the circuit court, that the alleged altering or editing of the recording

was an independent basis for suppression. To the extent that defendant is arguing that the recording

should have been suppressed because it was edited or altered, we reject this argument for the

reasons previously discussed. See supra ¶¶ 32-33.

¶ 53 III. CONCLUSION

¶ 54 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee County.

¶ 55 Affirmed.