Appeal from Circuit Court of Vermilion County No. 10CF647 Honorable Claudia S. Anderson Judge Presiding.
The opinion of the court was delivered by: Justice Pope
JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Turner concurred in the judgment and opinion. Justice Cook dissented, with opinion.
¶ 1 In September 2011, the trial court suppressed a video recording and related transcript from an interview of defendant, Lafayette L. Harper. The court reserved ruling on whether the police officers who questioned defendant could testify regarding his statements. The State appeals and filed a certificate of impairment.
¶ 2 We find the trial court (1) erred in interpreting section 103-2.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2008)) and (2) made insufficient findings to determine whether defendant's custodial statements are inadmissible pursuant to section 103-2.1 of the Code before it suppressed the digital video disc (DVD) recording and the transcript of the DVD recording pursuant to section 103-2.1 of the Code. We reverse the court's ruling suppressing the DVD recording and transcript pursuant to section 103-2.1 of the Code and remand for further proceedings.
¶ 4 In November 2010, the State charged defendant with four counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2008)) as a result of the death of Timothy A. Shutes, Jr. In June 2011, defendant filed a motion to suppress a statement he gave to police pursuant to section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)) because approximately 30 minutes and 12 seconds of the audio portion of the electronic recording of the interview is inaudible. The motion stated the portion of the interview containing audio is approximately 78 minutes and 21 seconds.
¶ 5 Based on our review of the electronic recording, defendant was in the interview room for over three hours. The entire three hours is recorded on video. The police officers were in the room with defendant just over 1 hour and 45 minutes. The recording is without audio for just under 29 minutes of the 105 minutes the police officers were with defendant in the interview room.
¶ 6 The trial court held a hearing on defendant's motion to suppress on September 1, 2011. At the hearing, defendant testified he was in class at the Concept College of Cosmetology on November 2, 2009, at 10 a.m. when Matt Wells, defendant's parole officer, Sergeant Campbell, and Detective Bransford came to talk to him. Wells told him to go with the two police officers. Defendant testified he did not feel as if he had a choice but to go with the officers because his parole officer told him to do so. However, defendant was not handcuffed.
¶ 7 The police officers took defendant to the public safety building in an unmarked police vehicle and then escorted him to an 8- by 10-foot interview room. After he was placed in the room, the door was locked. Defendant testified he knew the door was locked because he had to knock on the door if he needed something. He did not feel free to leave. At one point, he was escorted to and from the restroom. He was advised of his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) and signed a warning and waiver form. Defendant agreed to speak with the officers. The trial court found defendant was in custody at the time of his interrogation.
¶ 8 Officer Josh Campbell testified he activated the recording system after defendant was placed in the interrogation room and the door was closed. He testified:
"The camera in the interview room is monitored, the recording system, everything, the computer is in a separate room. We turn the computer on. We can see everything from that room as far as what's going on into the interview room. There's also a speaker system in there where you can monitor what's being said. I would have activated that, hit the record and then went into the interview room and proceeded with the interview."
The recording is saved digitally on the hard drive of the computer. The interview is then "burned" on to a compact disc (CD) or DVD.
¶ 9 Officer Campbell testified he wrote a three-page supplemental report regarding defendant's interview, which he prepared by reviewing his notes, the recorded interview, and his memory. According to Campbell, the recording was not intentionally altered in any way. Campbell stated audio of approximately 30 minutes of the actual interrogation was missing from the recorded interview, apparently due to a malfunction.
¶ 10 Detective Bransford agreed on cross-examination approximately 58 minutes of the DVD recording is missing audio. During 28 of those 58 minutes, defendant was in the interrogation room alone. During the remaining 30 minutes, the officers are interviewing defendant. According to Bransford, no one intentionally altered the recording in any way.
¶ 11 The State argued, and the trial court agreed, defendant's statement was voluntarily given. The State also argued defendant's statement was reliable.
¶ 12 In ruling on the motion, the trial court found the police officers did not purposefully or deliberately alter the recording. However, the court further found the statute did not require deliberate alteration. The court found the issue was the operation of the recording equipment. According to the court:
"In the case at bar it's very clear that the audio on this DVD was not functioning properly. *** And there's no question from what I've read and what I've heard today that this was the result of simple equipment failure, perhaps operator but not something that was purposeful.
The statute, of course, is applicable to this case, and it would seem to me based upon my discussion here this afternoon and my prior review of both the written statement and the recording, that, in fact, there is 30 minutes and about 12 seconds of inaudible-or of the interview which is inaudible and I find that that is a substantial amount of time. And what concerned me even more is that when I reviewed that statement, when you get to page 38, and I'm just using that because, of course, I don't have the DVD operating as I speak, but when you get to that portion of the transcript, after I've read up to that page it appears to the Court that that's where the meat of this really is starting. That's when Mr. Harper is really being questioned as to the investigator's conversations with other witnesses and what they had said, and at this point they begin to, it looks to the Court, as if they begin to start now questioning Mr. Harper about statements they had taken from other witnesses that might vary or be different from his. And then, of course, it just drops off the edge of the earth and we're somewhat lost. To me that renders the recording untrustworthy and unreliable as a whole.
So the Court does grant the Defendant's Motion to Suppress. But I want you to understand I'm reserving for later ruling the admissibility of evidence that might have been gathered during the interrogation or during the investigation in alternative forms, of course, subject to rules of evidence that might apply, cause I don't believe that I can do that in a vacuum today. ***
But I also want to be clear that since the statute requires the electronic recording of such a custodial interrogation, my ruling encompasses not just the DVD but the transcription of the DVD which the Court finds, to the extent I necessarily have to, has the same problem of a lack of reliability and trustworthiness.
So I am making those findings based upon the totality of the circumstances in this particular case and I fully understand and expect and perhaps it's more administratively appropriate that the State has the right certainly at this point if they wish to take an interlocutory appeal to have the Court's ruling ...