People v. Cole

• Decision Date: 13 November 2017
• Docket Number: NO. 4-15-0722,4-15-0722
• Citation: 2017 IL App (4th) 150722 -U
• Parties: PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY COLE, JR., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 150722-U

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY COLE, JR., Defendant-Appellant.

NO. 4-15-0722

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

November 13, 2017

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Vermilion County

No. 11CF635

Honorable Nancy S. Fahey, Judge Presiding.

PRESIDING JUSTICE TURNERdelivered the judgment of the court.

Justices Harris and Knecht concurred in the judgment.

ORDER

¶ 1Held: (1)The trial court did not abuse its discretion in denying the sanctions requested by defendant for the State's discovery violation.

(2)The trial court did not abuse its discretion by barring defendant from questioning the police officers about whether defendant's statement to the police was recorded.

(3)The trial court did not violate defendant's rights to confront witnesses against him, present a defense, or receive a fair trial.

¶ 2 In March 2015, after a jury trial, defendantRicky Cole, Jr., was convicted of burglary.The trial court sentenced defendant to 12 years in prison.Defendant appeals, arguing the trial court abused its discretion by failing to sanction the State because the State did not provide defendant with a copy of his recorded statement to the police before the statement was recorded over by the police.Defendant also argues the court abused its discretion by barring him from questioning the police officers about the electronic recording.Finally, defendant contends the trial court denied his constitutional rights to confront his accusers, present a defense, and have a fair trial.We affirm.

¶ 3 I. BACKGROUND

¶ 4 In October 2011, the State charged defendant by information with burglary (720 ILCS 5/19-1(a)(West 2010)) and armed robbery (720 ILCS 5/18-2(a)(1)(West 2010)).The burglary count alleged defendant knowingly and without authority entered Ted's Home Beverage (Ted's) in Hoopeston, Illinois, with the intent to commit a theft.

¶ 5 In November 2011, both the State and defendant filed pretrial discovery motions.Defendant asked for "[a]ll written or recorded statements and the substance of any oral statements made by the accused or by a co-defendant, and a list of witnesses to the making and acknowledgment of such statements."

¶ 6 In April 2012, defendant was released on bond, and the trial court severed the two charges.The burglary charge is at issue in this appeal.Defendant failed to appear for his scheduled jury trial in October 2012.An arrest warrant was issued for defendant's failure to appear.In November 2014, defendant was arrested and taken back into custody.

¶ 7 On March 4, 2015, defendant filed a motion for sanctions to exclude police officers from testifying about a statement defendant made to the police.At issue was defendant's statement identifying himself to police as an individual in a surveillance video from Ted's the day before the robbery but denying he was the identically dressed individual on a surveillance video from Ted's during the break-in.

¶ 8 In the motion for sanctions, defendant alleged he requested any recordings in his November 2011discovery request.The defense was not notified defendant's statement to the police had been electronically recorded until February 2015.However, by then, the recordinghad been destroyed.Ron Cade, a Hoopeston police investigator, told a defense investigator the recording would have been recorded over after nine months if not requested for court.Defendant argued in the motion:

"7.Our Supreme Court has stated that '[w]here evidence is requested by the defense in a discovery motion, the State is on notice that the evidence must be preserved, and the defense is not required to make an independent showing that the evidence has exculpatory value in order to establish a due process violation.'People v. Newberry, 166 Ill. 2d 310, 317(Ill.1995).

8.Where evidence has been destroyed following a defense request under Rule 412, 'no showing of bad faith by the State is required in order for the trial court to act.The correct sanction is a decision appropriately left to the discretion of the trial court, and its judgment is entitled to great weight.'Id. at 317-18."

Defense counsel requested the following sanctions against the State pursuant to Illinois Supreme Court Rule 415(eff. Oct. 1, 1971): (1) exclude the police officers from testifying regarding defendant's recorded statement to the police; or (2)(a) provide a jury instruction regarding the destroyed recording of defendant's statement; (b) allow defense counsel to question the Hoopeston police officers about the destruction of the electronic recording; (c) allow defense counsel to include in her closing argument information regarding the missing electronic recording; and (d) other relief the court deems just.

¶ 9 On March 5, 2015, the morning of defendant's trial, the trial court heard arguments on defendant's motion for sanctions.Defense counsel argued a lot of the evidence in this case arises from a statement defendant allegedly made in an interview with Hoopeston policeofficers.The discovery provided by the State included a summary of defendant's alleged statement, but nothing indicated an audio or videotaped record of a statement had been made.

¶ 10The State noted it charged defendant on October 24, 2011.The discovery it received from the Hoopeston police department did not include a video of any statement by defendant or a rights waiver form.The assistant state's attorney noted he first learned the statement had been recorded while speaking with the Hoopeston police officers while preparing for trial.The police officers brought up the fact the statement had been recorded.The assistant State's Attorney stated he was surprised by this revelation because "no one knew about it."The State noted the discovery in this case, going back to 2011, included a detailed summary of defendant's statement to Officers Ron Cade and Darin Tate.

¶ 11The State argued it did not see how sanctions would be appropriate because no discovery violation occurred.According to the State, it only learned of the recording on March 2, 2015, and informed defense counsel the next morning.The State argued, "I don't see how there is a discovery violation if it's something that the State didn't even know about until Monday."The State argued questions about the destroyed video are irrelevant except to make the State and police officers look bad.

¶ 12 In response, defense counsel noted the defense did request any electronic recordings early on in the case.However, she was not going to accuse the officers of destroying evidence.Defense counsel indicated she wanted to do basic cross-examination, asking the officers whether defendant's statement was recorded and what happened to the recording.The trial court asked defense counsel what purpose was served asking the police officers whether defendant's statement was recorded and what happened to the tape other than "to plant a seed of doubt?"According to defense counsel, she believed this information was relevant for the jury toknow but did not explain why.Defense counsel again noted she was not going to argue the State destroyed anything.However, she stated asking these questions was part of her job exercising defendant's right to confront witnesses against him.Counsel also told the court:

"[I]f it had never been brought to the attention of the Court that this even happened, my question would have been to the officers, 'Was there a video and audio recorded statement?'And at that point I'm assuming the officers would be like, 'Yes, there was.'And at that point maybe we would have all been surprised.But the question still would have been asked and I would have normally asked it."

¶ 13The trial court denied defendant's motion for sanctions.According to the court's reasoning, once the State found out defendant's statement had been recorded, the State inquired about the recording and was informed the recording had been destroyed in the normal course of business.The court noted, "Neither side knew it existed.It was not destroyed to hide anything or done purposefully."The court stated this was not a case where (1) actual evidence needed to convict defendant was destroyed, (2)the State failed to provide the substance of the statement to the defense, or (3)the State violated a specific court order to provide the recording to defendant.According to the court, the State provided the substance of defendant's statement to the defense pursuant to its discovery request, so the defense was not surprised by the substance of the statement.The court also denied defendant's request to provide the jury with the instructions attached to defendant's motion for sanctions.Finally, the court denied defendant's requests to question the police officers about the recording and to argue about the destroyed recording during closing arguments.

¶ 14 At defendant's trial, Investigator Ron Cade of the Hoopeston police department testified he investigated a break-in at Ted's on October 22, 2011.The business's surveillancefootage showed an individual in the store after-hours taking cigarettes from the counter.Cade's investigation led him to look for defendantat 818 East Young Street where Angela Torres, along with her children, brother, father, and father's wife lived.Defendant and Angela were present in the back yard.Defendant initially identified himself as "Johnny" to Cade.Angela identified defendant as Ricky Cole.Cade detained defendant and put him in a squad car.Defendant was taken to the Hoopeston police department.

¶ 15Angela Torres and her father gave the police consent to search the premises.Cade testified they were looking for clothing like the suspect in the break-in at Ted's was wearing, specifically tan work boots, dark multi-colored checkered pants (possibly pajama pants, sweat...