Appeal from the Circuit Court For the 9th Judicial Circuit McDonough County, Illinois No. 08-CF-184 Honorable John Clerkin, Judge, Presiding
The opinion of the court was delivered by: Justice O'brien
JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
Justices Schmidt and Wright concurred in the judgment and opinion.
Following a jury trial, defendant Bobby Bradley was found guilty of two counts of unlawful delivery of a controlled substance. 720 ILCS 570/401(c)(2) (West 2006). He was sentenced to two concurrent 12-year terms of incarceration. As part of the evidence at trial and over the repeated foundation objections of the defense, the State introduced an audio recording of a drug transaction involving Bradley. The recording was made pursuant to an overhear order granted to the law enforcement officials investigating Bradley. On appeal, Bradley asserts the audio recording was admitted in error because it did not comply with the statutory requirements governing eavesdropping (725 ILCS 5/108A-7(a), (b), 108-8(a) (West 2006)). Giving due deference to the trial court's findings of fact, we find that in this case sufficient procedural safeguards were taken to bring the State's overhear evidence into compliance with the statute. We affirm the trial court.
On September 4, 2008, prior to the commencement on January 20, 2009, of defendant Bobby Bradley's jury trial on two counts of the unlawful delivery of a controlled substance (720 ILCS 570/401(c)(2) (West 2006)), the State tendered to Bradley notice that "[a] court authorized recording device was utilized during controlled purchases involving [another subject] and the Defendant." On January 7, 2009, the same date he filed several motions in limine, Bradley filed a motion to compel production of discovery, including copies of any complaints and orders for overhears. In response, on January 8, 2009, the State provided to Bradley copies of the overhear application and orders, and disk copies of the audio transmissions of overhears conducted on July 19 and July 29, 2009.
At trial, Officer Eric Lenardt of the Macomb police department testified that on July 29, 2008, a "controlled" drug transaction was recorded through the participation of a confidential informant who was equipped with a microphone in her purse. Through the microphone Lenardt was able to hear the informant transact with the defendant. The audio was simultaneously recorded on a recording device. Lenardt identified the State's exhibit 8A as the "original of the recording," the compact disk, that was made on July 29, 2008. Lenardt identified the State's exhibit 8B, another disk recording, as a "condensed version" of exhibit 8A. Lenardt explained that exhibit 8B was altered to eliminate approximately 40 minutes during which "nothing [was] occurring," the parties were "apparently sitting and watching *** television." Lenardt identified the State's exhibit 8C as a timeline of the entire recording, including the deleted portions and what the deleted portions "might have been." Bradley objected to the admission of the State's exhibits 8A and 8B on the basis of foundation. The trial court sustained the objection "at this point." Exhibit 8C was admitted without objection.
In response to further questioning and further defense objections to foundation and chain of custody, Lenardt explained how the disk of the eavesdrop recording was obtained. The eavesdropping device consists of two components. One component, the transcorder, accompanies the conversation participant and one component stays with a listener, in this case Lenardt. Both components of the device record the audio data. The listening component, the one that stayed with Lenardt, digitally records the conversation on a "compact flash disk" as a backup for any failure of the transcorder to record. After the overhear, the transcorder is plugged into a computer that is programmed with software related to the eavesdropping device. The recording is downloaded to a computer file. Downloading the data to a computer is the only way the recording can be played. The data from the computer is burned to a disk and the disk is used to make further copies. Recording the data to a disk is the only way to provide a copy for the court proceedings. The original disk and all of the copies are retained in evidence. The data is not maintained on the original recording device or on the flash drive because of limited data memory. For purposes of space and security, the data is also deleted from the computer once it is downloaded to the disk.
Lenardt testified that in the instant case he had monitored the overhear and the disk produced from the listening device was a true and accurate copy of what he heard and was an exact copy of the data downloaded to the computer. The data on the recording device cannot be altered. The data on the device cannot be rewound or played; the recording device is strictly for recording. The recording device was turned on throughout the time the confidential informant met with Bradley. Everything that was recorded in the encounter with the defendant was copied to the original disk, including Lenardt's preamble and postamble. All copies of the disk were subsequently sealed and kept in the evidence room. The "Order of Review and Retention of Use of Eavesdropping Device" (hereinafter, Order of Review) was also sealed. The copy of the recording that was edited for empty time was also filtered for background noise. Lenardt trained himself to use the overhear device using the manufacturer's manual. Lenardt admitted the overhear order required the preservation of the recording. Lenardt also agreed the data was deleted from the recording device and the computer before the trial court that issued the overhear order listened to the recording from the disk. The recording the issuing court subsequently listened to was not exhibit 8A, but rather an exact copy of exhibit 8A. Bradley continued to object to the admission of the State's exhibits. Bradley objected that the evidence produced by the State was "a copy of a copy" of the original overhear and that the original had been destroyed. Bradley also asserted that the failure of the police to preserve the flash disk of the recording device violated the overhear order.
The trial court overruled the defense's "best evidence" objection, finding the recorded data was not deleted with the intention to defraud because Lenardt believed he retained a true and accurate copy of the recording. The trial court discussed the Order of Review issued by the trial court that issued the original overhear order. The trial court noted the Order of Review, dated January 15, 2009, stated that after reviewing the recording, the trial court found the recording was within the boundaries of the overhear order and that the trial court directed the recording be sealed and maintained under the custody of Lenardt until further order. The Order of Review further provided that the recording was not to be destroyed for at least 10 years. The trial court in the instant case found the police had substantially complied with the Order of Review.
Following further evidence, which included testimony from the confidential informant, the State renewed its request to admit exhibits 8A and 8B and the defense continued its foundation objection to the introduction of the exhibits. The defense agreed that if the trial court allowed the introduction of the evidence, exhibit 8B, the edited version of the audio recording, would be the only necessary version to be presented for listening to the trial court and the jury. Thereafter, the State offered only exhibit 8B. Outside the presence of the jury, the trial court listened to the recording as played from exhibit 8B while Lenardt identified the relevant speakers. The trial court found that any question as to whether Lenardt correctly identified the speakers went to the weight and not the admissibility of the recording. Bradley's foundation objection was overruled and exhibit 8B was admitted into evidence and played for the jury.
The jury found Bradley guilty. He filed a posttrial motion requesting a new trial, in part because, as argued by the defense, the audio recording was admitted "without adequate foundation and in violation of 725 ILCS 5/108 A-7." Asserting he was not objecting to the editing of the recording, Bradley argued the foundation offered by the State was not adequate to admit a copy of a copy to be substituted for the original recording. Referring to "725 ILCS 5/108(a)(1) et sequitur," as the relevant statute, the trial court found the eavesdropping device used by the police had been approved by another judge and it was authorized and used by the police substantially according to law. The trial court further found substantial compliance in that the recording was done with a device capable of taking testimony or "hearing," that it was made at the hands of a competent operator, and that it was authentic and correct. The trial court found there were no changes, additions or deletions to the recording, that it had been properly preserved and the speakers, who were identified, had ...