Appeal from the Circuit Court of Kendall County. No. 07--CF--151 Honorable Thomas E. Mueller Judge, Presiding.
The opinion of the court was delivered by: Justice Zenoff
JUSTICE ZENOFF delivered the opinion of the court: Defendant, Sirenio Flores, appeals from his ninth conviction of driving with a revoked or suspended license (625 ILCS 5/11--501.1 (West 2006)). He asserts that the trial court improperly admitted as self-authenticating a videotape produced by a neighbor with admitted animus toward him. We agree with defendant, although we conclude that a more accurate characterization of the error is that the court treated the videotape as substantive evidence when the foundation would allow only its demonstrative use. We therefore reverse defendant's conviction and remand the matter for a new trial.
Defendant was charged by indictment with the traffic offense we have described. According to the indictment, the offense took place on September 22, 2006.
Salvatore Morici was the State's first witness at defendant's bench trial. He testified that he lived on the same block as defendant. They did not like each other. On September 22, 2006, he was driving down a road when a vehicle swerved into his lane, so that it was heading straight toward him, forcing him onto the unpaved shoulder. The driver "flipped the finger" at him. He recognized the driver, who was alone in the vehicle, as defendant.
When traffic cleared, Morici turned his vehicle around and tried to follow defendant's vehicle, a white minivan. The next time he saw the van, it was again coming toward him. Morici had a "camcorder" in his vehicle because he had been making a recording of his grandmother's property as an insurance record. When he saw the van coming toward him again, he got out the camcorder and started taping. He taped defendant as defendant pulled to the side of the road and got out of the van. At trial the State showed Morici a tape, which he said was a copy of the tape from his camcorder. He agreed that he had reviewed that copy and that it accurately depicted what he had seen after he turned on the camcorder.
Morici said that, when he saw defendant for the second time, he called the police. He spoke to them at the house at which defendant had stopped and later that day he took his camcorder to the police department, where an officer watched the tape through the camcorder's viewfinder. Because he did not want the police to have the part of the tape with "personal information," he did not give them the tape then.
The State asked to show the tape, and the court allowed it over defendant's objection that the foundation was insufficient. Watching the tape, Morici said that a person on the tape in white pants and a blue sweatshirt was defendant. He agreed that the tape contained a skip; this was because he had set the recorder down and shut it off after defendant had left the van and gone into the house.
We reviewed the tape. It starts with a brief section of static, momentarily flashes to something colorful, and then starts with a very shaky view of a white van. The whole tape is perhaps five minutes long. In the lower right corner is a date (but not time) stamp.
At trial, Morici admitted to a history of bad blood between himself and defendant. Sometime in 2005, Morici hired defendant, a painter, to paint the upstairs of his house, and Morici believed that defendant did not complete the job. In March 2006, the police were called to the scene of a physical altercation between Morici and defendant when the two had a confrontation over checks that Morici had cashed for defendant. After the events of September 22, 2006, there had been other incidents with defendant--"so many" that Morici could not recall them all. These included an incident in which defendant told the police that Morici had attacked defendant at an Oswego school.
Morici testified that, to the best of his recollection, the date stamp was visible on the tape when he showed it to the officer on the 22nd. He said that he did not own video editing equipment, but had made a copy of the tape by connecting the camcorder to his VCR. He gave the following responses when cross-examined about how he made the copy and whether he retained the original:
"Q. [Defense counsel:] When you got home [from taking the tape to the police station], you went through a process by which you made either a copy or erased some other material to give to the officer; is that correct?
A. [Morici:] No. I did not erase some of the material. I made a copy of the physical tape.
Q. You have video editing equipment at home, do you not?
Q. So you have two VCRs one to the other, is that how you did it?
A. No. You plug in a cord from your camcorder to a VCR. * *
Q. If we were to play the rest of the tape, we would see the footage of the grandmother's possessions?
A. No, no longer you wouldn't.
Q. Why wouldn't that be if you're making a straight copy?
A. Because I erased that information because it's on that tape because it had personal information. We continued video recording because it had to go to the insurance ...