People v. Smith

• Citation: 2021 IL App (5th) 190066,184 N.E.3d 315,451 Ill.Dec. 728
• Decision Date: 01 November 2021
• Docket Number: 5-19-0066
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Carl SMITH Jr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (5th) 190066

184 N.E.3d 315

451 Ill.Dec. 728

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Carl SMITH Jr., Defendant-Appellant.

NO. 5-19-0066

Appellate Court of Illinois, Fifth District.

November 1, 2021

James E. Chadd, Douglas R. Hoff, and Adrienne E. Sloan, of State Appellate Defender's Office, of Chicago, for appellant.

Joseph A. Cervantez, State's Attorney, of Murphysboro (Patrick Delfino, Patrick D. Daly, and Max C. Miller, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE VAUGHAN delivered the judgment of the court.

¶ 1 I. BACKGROUND

¶ 2 This case arises from allegations that coins, pain medication, and jewelry were stolen from Michael Whittington's apartment on July 29, 2018. After an officer viewed surveillance footage of the apartment building, defendant was suspected as the offender. On August 1, 2018, defendant was charged with residential burglary in knowingly and without authority entering into the dwelling of Whittington, with the intent to commit therein a theft ( 720 ILCS 5/19-3(a) (West 2018)).

¶ 3 On October 29, 2018, defense counsel filed a motion in limine to preclude the introduction of the two nonconsecutive iPhone clips, which depicted defendant walking away from Whittington's apartment after touching the doorknob and then exiting Whittington's apartment about 20 minutes later. He argued that the clips were unduly prejudicial without admitting the full original surveillance video, as the jury would likely speculate as to what may or may not be on the rest of the original surveillance video. The motion also argued that the clips violated the best evidence rule pursuant to Illinois Rules of Evidence 1001 - 1003 (eff. Jan. 1, 2011) because they were not duplicates where the 20- to 30-second clips did not "accurately reproduce the original" as required in Illinois Rule of Evidence 1001(4) (eff. Jan. 1, 2011).

¶ 4 Before trial, the court heard argument on defendant's motion in limine regarding the iPhone clips. Defense counsel noted that the State did not provide the original surveillance video to the defense in discovery, and from talking with the State that morning, it was due to the State not being provided the original video by law enforcement. Counsel argued the two 20- to 30-second clips are prejudicial to defendant because there is no video of what happened in between the two clips, what happened before that time, or what happened after that time. Counsel acknowledged that edited clips of long videos are often admitted into evidence but asserted that the other side always has the original to use if necessary. Without the original, the jury is left to speculate as to what might be on the full surveillance video. Counsel further argued that the clips violated the best evidence rule because they are not the original nor are they duplicates under Illinois Rule of Evidence 1001(4) (eff. Jan. 1, 2011).

¶ 5 At that time, the State had no response but requested the court to reserve its ruling until it could have the witness who was to authenticate the video come testify the next morning, so the court could be fully informed of the foundation of the clips. Defense counsel and the court agreed.

¶ 6 The following morning—immediately before trial—the State called Pieter Schmidt to testify. Schmidt owned the apartment building in which Whittington and defendant lived. Schmidt stated that the apartment complex had a video surveillance system. He testified to his familiarity with the system, noting that he had previously reviewed surveillance video footage by pulling up the surveillance screen then selecting the appropriate icon to go forward, backwards, or to pick a specific date. He explained that there are four cameras that automatically record and save to a DVR for 48 hours. The cameras are positioned to look through the office windows into the hallway, to look down the hallway, and to look at the parking lot. Schmidt testified that the recordings are time-stamped and cannot be altered. Schmidt averred that this matter was the first time he had to retrieve surveillance video footage since installing the system the previous spring. He stated that he knew the video surveillance was functioning properly on July 29, 2018, because the footage for that date was available for review.

¶ 7 Schmidt testified that, after Whittington left him a message that someone broke into his apartment and "robbed" him, he viewed the surveillance footage for July 29, 2018, for some time earlier than 1:53 p.m. until 2:24 p.m. Once Schmidt arrived at the apartment building, Whittington gave him a police officer's card and informed him that the officer was interested in knowing if the video surveillance system worked. Schmidt verified that, based on his knowledge of how the system worked, the video displayed a fair and accurate depiction of what occurred in front of the cameras at that time. When asked if he was able to copy the footage, Schmidt stated, "I'm not competent enough apparently to do that. And we tried and we could not get it to download on a flash drive. So we recorded it on a cellphone. Basically I think they call that a screenshot."

¶ 8 Schmidt testified that he and his wife recorded a couple of clips that they thought were important on his wife's iPhone that were subsequently e-mailed to his iPhone. He then took his iPhone to an IT person at his law firm who put the clips onto a compact disc (CD), which he delivered to the Carbondale Police Department.

¶ 9 Schmidt averred that Whittington's apartment was right outside the office where one camera is located. Schmidt testified that, in the footage, defendant went down the hallway and touched the doorknob of Whittington's apartment. However, defendant just touched the doorknob and continued to walk further down the hallway. He then disappeared until roughly 20 minutes later when he walked out of Whittington's apartment. Schmidt verified that before he had his wife record the video footage on her iPhone, Schmidt viewed the entire footage and did not observe anything but an empty hallway during the period between the two recorded clips. Defendant never walked into Whittington's apartment during that time. Schmidt also testified that he did not alter the recording at all. Schmidt clarified that the two clips showed the time to be about 1:53 p.m. and 2:14 p.m., respectively. He testified that the CD admitted to the court fairly and accurately depicted what occurred on the cameras near Whittington's apartment.

¶ 10 On cross-examination, defense counsel asked if Schmidt could be considered a competent operator of the security system where he did not know how to export the footage. Schmidt responded that he could not download the footage to a flash drive but could operate the other functions of the system. He acknowledged that he had no formal training on the system. He read the instruction manual to try to see how to export a video but could not figure it out. Schmidt stated that he did not ask anyone from the police department or an IT person from his office to help him export the video. Schmidt also testified that no one from the police department attempted to retrieve and export the footage themselves. The footage would have been available from July 29, 2018, to July 31, 2018. Schmidt averred that while he observed the 20-minute period between the iPhone clips, he did not have any personal knowledge of what the cameras were recording.

¶ 11 Schmidt conceded that he could have recorded the entire original footage but did not because it would take too long. When asked if there were other people in the hallway, he averred that when defendant came out of Whittington's apartment, a woman appeared from the stairwell around the corner. Schmidt clarified that no one else was around or in front of Whittington's apartment that day, except defendant and his wife, who were in front of the apartment earlier in the day.

¶ 12 Defense counsel argued that the iPhone clips violated the completeness doctrine and the best evidence rules ( Ill. R. Evid. 1001 - 1004 (eff. Jan. 1, 2011)) and were unduly prejudicial. Counsel contended that the State was allowed to cherry-pick two parts of the full video and precluded the defense's fair shot to look at the whole original to decide if any portion would be beneficial to defendant. Counsel further argued that the police knew that the original would be deleted after 48 hours and had plenty of time—and the authority—to try to obtain the original. With respect to the best evidence rules, counsel claimed the iPhone clips were not originals or duplicates under the Illinois Rules of Evidence because they did not accurately reflect or reproduce the original's data. A comparable situation would be admitting "two or three words of a multiple page contract," which would also be objectionable. Counsel noted that while Illinois Rule of Evidence 1004 (eff. Jan. 1, 2011) allows other evidence of the contents of a recording if the original is lost or destroyed, the original here was destroyed with the knowledge of the State's witness and the failure of law enforcement to obtain the original in time. By allowing the State to pick two nonconsecutive clips, defendant was denied the chance to obtain any exculpatory evidence.

¶ 13 Defense counsel also objected to the iPhone clips for insufficient foundation under silent witness theory. He argued that Schmidt conceded he was incompetent to export the surveillance footage. Counsel also contended that there was insufficient chain of custody where Schmidt's wife was not present to testify to her part in transferring the recordings to Schmidt, and the IT person did not testify to how he burned the recordings from Schmidt's e-mail to a CD.

¶ 14 In response, the State relied on People v. Taylor , 2011 IL 110067, 353 Ill.Dec. 569, 956 N.E.2d 431, to argue that the iPhone clips were originals and therefore not subject to the best evidence rule. It contended that the...