Appeal from the Circuit Court of Cook County No. 04 CR 20966. Honorable John J. Moran, Judge Presiding.
The opinion of the court was delivered by: Justice Cahill
Defendant Larry Johnson was convicted after a bench trial of indecent solicitation of a child and sentenced to 30 months' probation. He appeals. We reverse and remand for a new trial.
On August 5, 2004, the police arrested defendant at a Chicago train station where he allegedly was waiting to meet 14-year-old "Starlightgirl" for a sexual encounter. Starlightgirl was in fact Kane County police investigator Alexjandro Gomez, who had been posing as a minor in an online chat room. Defendant was 20 years old. He used the screen name "Sexyblkman4u1126." After defendant was arrested, he was taken to a Chicago police station where Gomez interviewed him. When defendant denied knowing why he was at the station, Gomez confronted him with transcripts of the online conversations between Starlightgirl and Sexyblkman4u1126. Defendant said he recognized the conversations. Gomez had defendant initial each page of the transcripts. Defendant then made an inculpatory statement to an assistant State's Attorney that was memorialized in writing. Gomez appeared before a grand jury, testifying that "defendant believed he was talking to a 14-year-old girl when [defendant] solicited the sexual acts." The grand jury returned a two-count indictment against defendant for indecent solicitation of a child (720 ILCS 5/11-6(a) (West 2002)).
Defendant filed a pretrial motion to suppress the statements he made on August 5, 2004, to Gomez and the assistant State's Attorney. He claimed he made the statements after he asserted his rights under Miranda and was subjected to physical, emotional and mental coercion.
The trial court held a combined suppression hearing and trial. Gomez testified that his job was to go undercover on the internet, pose as a minor boy or girl and actively seek adults who want to have sex with minors. He said he maintains an undercover screen name in an America Online (AOL) chat room. He said his chat conversations with Sexyblkman4u1126 were recorded and a transcript was generated by a "Power Tools" software program on his undercover computer. Gomez said that he could not recall "word for word" his online conversations with Sexyblkman4u1126. The State showed Gomez the transcripts, but he said his memory was not "entirely" refreshed. Defendant objected to the use of the transcripts to assist Gomez on the grounds that the State had not laid a foundation for a "past recollection recorded." The trial court sustained the objection and directed the State to proceed with questions to establish a foundation.
Gomez testified that the transcripts "truly and accurately" reflected his conversations with Sexyblkman4u1126 as recorded by his Power Tools software. Gomez also stated that the Power Tools software locked up on one occasion and failed to record a conversation. Over defendant's objection on foundational grounds, the trial court allowed Gomez to testify to the conversation that was not recorded. Defendant later objected to the State's use of the transcripts, arguing it was not relevant to his motion to suppress his statements. The court concluded, "It may be relevant at the trial, so we will get into it. Obviously, if the motion [to suppress the statements] prevails, it will all be stricken."
The State then moved to admit as evidence the original transcripts that defendant had initialed at the police station. Defendant objected on hearsay grounds, arguing that the documents were not admissible under the exception for business records. The court allowed the transcript, saying: "Defendant reviewed them and said that he remembered *** each of the conversations, and he in effect adopts it." Gomez read the transcripts into the record, including Sexyblkman4u1126's expressed desire to have oral and anal sex with Starlightgirl.
Before calling the next witness, the State moved to amend the indictment. The State asked to add-after the allegation in the indictment that defendant solicited "a child under the age of 17 years"-the phrase: "or one who he or she believes to be a child." Defendant objected, arguing that the State was trying to correct a "substantive defect" in the indictment. The trial court granted the State's motion, finding the correction to be "formal," not "substantive."
Defendant testified in his own behalf. He said Gomez handcuffed him to a pole at the police station and tightened the handcuffs when he refused to confess. Defendant said another police officer showed him a sledge hammer and threatened to break into defendant's mother's and grandmother's apartments unless he signed an inculpatory statement. Defendant said that officer also grabbed his mouth when he refused to talk. Defendant said he was not allowed to call his mother despite promises from the police.
The trial court granted defendant's motion to suppress statements. The court did not order the recorded internet conversations stricken despite an earlier statement that it would strike the conversations if the statements were suppressed. The court then heard closing arguments for the trial and found defendant guilty.
Defendant argued in his motion for a new trial that the court erred in allowing the State to introduce the transcripts without an adequate foundation, noting that no AOL representative testified to their accuracy. He claimed prejudice because the trial court "relied heavily" on the transcripts. The trial court denied the motion.
In imposing the sentence, the trial court said to defendant: "The transcripts of what you wrote are disgusting."
Defendant presents five arguments on appeal. His dispositive argument is that the trial court erred by: (1) admitting the transcripts despite the State's failure to lay foundations for past recollection recorded, business records or computer-generated documents; and (2) failing to strike the ...