People v. Collins, 1-18-1746

CourtUnited States Appellate Court of Illinois
Writing for the CourtJUSTICE HYMAN delivered the judgment of the court, with opinion.
Citation2020 IL App (1st) 181746,190 N.E.3d 287,454 Ill.Dec. 687
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jodon COLLINS, Defendant-Appellant.
Docket Number1-18-1746
Decision Date21 December 2020

2020 IL App (1st) 181746
190 N.E.3d 287
454 Ill.Dec.

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
Jodon COLLINS, Defendant-Appellant.

No. 1-18-1746

Appellate Court of Illinois, First District, First Division.

Filed December 21, 2020
Modified upon Denial of rehearing July 26, 2021

James E. Chadd, Patricia Mysza, and Samuel B. Steinberg, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, Joseph Alexander, and Mikah Soliunas, Assistant State's Attorneys, of counsel), for the People.

JUSTICE HYMAN delivered the judgment of the court, with opinion.

454 Ill.Dec. 690

¶ 1 A jury found Jodon Collins guilty of unlawful possession of a weapon by a felon and of being an armed habitual criminal. Officers arrested Collins after a foot chase partially caught on body camera video. The trial court admitted the video over repeated objections by Collins's counsel that the audio included inadmissible hearsay statements from Chicago police officer Martin Hernandez. We agree with Collins. Officer Hernandez's statements captured on the video served no nonhearsay purpose and were inadmissible. The State's evidence almost exclusively consisted of Hernandez's testimony, further leading us to conclude the error not to be harmless beyond a reasonable doubt. We reverse and remand for a new trial.


¶ 3 Chicago police officers Martin Hernandez and Joel Lopez were on patrol shortly after 1 a.m. on December 16, 2017. As they turned onto Walnut Street, they saw a group of three people standing near 3300 West Walnut Street. The group looked in the officers’ direction and started walking away from them. As the officers got closer to 3300 West Walnut Street, Hernandez got out of the car to "conduct an investigation."

¶ 4 Hernandez saw one member of the group, who he identified as Jodon Collins, "turn around, look at us and immediately start running west and then northbound." Before Collins ran, Hernandez did not observe anything illegal. Specifically, he did not see anyone in the group engage in a hand-to-hand transaction, did not see Collins holding a gun, and did not see a bulge in Collins's pants. Collins ran through a vacant lot, "holding his left side," with Hernandez five-to-eight feet behind. From that distance, Hernandez saw Collins "drop a black handgun" on the ground.

¶ 5 Hernandez, after hesitating on seeing the gun, kept chase. To get to Fulton Street, Collins had to jump two fences. Hernandez also cleared the fences, but it slowed him down. From about 40 feet away, Hernandez saw Collins jump another fence into the yard of a house on Fulton Street. Once Collins hopped that fence, Hernandez lost sight of him. Hernandez went into the backyard and found Collins "crouched down" against the wall of a house. Hernandez arrested Collins and handed him off to other officers before going back to the vacant lot, where he recovered a black handgun in the spot where he saw Collins drop it.

¶ 6 Hernandez wore a body camera. To activate his body camera, he had to twice push a button on the front of it. Once activated, the camera captures "a 15-second

454 Ill.Dec. 691
190 N.E.3d 291

period that it goes back and records." Over an objection from Collins's counsel, the court allowed the State to play video footage with the audio. The video starts as Hernandez runs "towards the third fence area" because, as Hernandez explained it, when the chase began, his "focus was on the person that's fleeing." Hernandez agreed that a Chicago Police Department special order required him to start the camera at the beginning of an incident and "leave it recording till the scene is safe."

¶ 7 During the video, Hernandez made the following statements on his radio, after putting Collins in custody:

"Get to that lot, dude. Hurry up. He dropped it there."

"Go back to the lot where he ran through, dude. It's right in the middle of the lot. It's black."

"It's a pistol, squad. He dropped a pistol right there in the middle of the lot over there where it started."

Before trial, Collins's counsel had moved in limine to bar the video, arguing that the statements it contained constituted hearsay and improper prior consistent statements. The trial court denied the motion, overruled counsel's objection to the video, and overruled counsel's objection to the video when the court formally admitted it into evidence.

¶ 8 Chicago police evidence technician Robert Franks analyzed the gun for fingerprints but found none. The State admitted certified copies of two convictions for possession of a controlled substance with intent to deliver.

¶ 9 Collins did not testify. His counsel called Sergeant Joel Lopez, who laid the foundation for the admission of his body camera video. He explained that his video starts after Hernandez had already gotten out of the car. The video shows Lopez driving for a while, eventually getting out of his car and searching unsuccessfully for the gun. Collins's counsel played the video for the jury, without objection by the State.

¶ 10 During closing argument, the State discussed Hernandez's body camera video, rhetorically asking the jury how Hernandez could have directed his fellow officers back to the lot where they found the gun if he had not seen Collins drop it there. The State then played the entire video for the jury. Collins's counsel played Lopez's body camera video for the jury, arguing that Hernandez's instructions to go back to the lot (audible in both officers’ body camera videos) were confusing because it took Lopez so long to get to the right area.

¶ 11 The jury found Collins guilty of unlawful use of a weapon by a felon and being an armed habitual criminal. Collins filed a motion for a new trial, repeating the argument that the audio from Hernandez's body camera video to have been improperly admitted. The State responded that Collins's counsel had used the officers’ videos for her own benefit, to which Collins's counsel replied that she had used the videos because "the court ruled that the audio portions *** would be admissible." The trial court reiterated its view that the videos were "obviously admissible" and denied the motion for a new trial.

¶ 12 The trial court merged the unlawful use of a weapon by a felon count into the armed habitual criminal count and sentenced Collins to 7½ years in the Illinois Department of Corrections.


¶ 14 Collins argues the trial court erred in admitting the audio from Hernandez's body camera because it exposed the jury to "inadmissible hearsay." Collins takes issue with several statements Hernandez made throughout the audio, telling other officers that Collins dropped a "black pistol"

454 Ill.Dec. 692
190 N.E.3d 292

as he ran from Hernandez. The State responds that Collins has waived the issue by using the body camera video to his advantage in closing arguments and by introducing Lopez's body camera video. On the merits, the State argues that Hernandez's statements were not hearsay because they were only offered to explain the officers’ course of conduct, not for the truth of the matter asserted. See Ill. R. Evid. 802 (eff. Jan. 1, 2011).

¶ 15 Waiver Argument

¶ 16 We start by considering, and rejecting, the State's waiver argument. The State contends Collins either invited or acquiesced to the admission of Hernandez's body camera video because he later "used the ‘error’ " by incorporating the video into his arguments about the unreliability of Hernandez's testimony. The doctrine of invited error prevents a defendant from raising a claim on appeal where he or she "procures, invites, or acquiesces in the admission" of otherwise improperly admitted evidence. People v. Bush , 214 Ill. 2d 318, 332, 292 Ill.Dec. 926, 827 N.E.2d 455 (2005). The doctrine rests on "notions of fair play" ( People v. Villarreal , 198 Ill. 2d 209, 227, 260 Ill.Dec. 619, 761 N.E.2d 1175 (2001) ), and we apply it where a defendant " ‘sit[s] by’ " and deprives the State of the opportunity to cure any alleged error (see Bush , 214 Ill. 2d at 332-33, 292 Ill.Dec. 926, 827 N.E.2d 455 (quoting People v. Trefonas , 9 Ill. 2d 92, 98, 136 N.E.2d 817 (1956) ).

¶ 17 Both cases the State relies on, Bush and Villarreal , involve a defendant whose counsel behaved far differently than Collins's counsel. In Bush , the defendant's counsel stipulated to admission of evidence that he possessed cocaine. Id. at 333, 292 Ill.Dec. 926, 827 N.E.2d 455. In Villarreal , the defendant on appeal attempted to attack verdict forms that his own counsel submitted at trial. Villarreal , 198 Ill. 2d at 227, 260 Ill.Dec. 619, 761 N.E.2d 1175. Here, Collins's counsel (i) filed a motion in limine objecting to the admission of Hernandez's body camera video, (ii) objected at the time the video was offered as a trial exhibit, (iii) objected again when the trial court formally admitted the State's exhibits at the close of evidence, and (iv) preserved her objection in a motion for a new trial by expressly arguing that Lopez's video was offered only in response to the admission of Hernandez's video.


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