Appeal from the Circuit Court of Cook County. No. 10 CR 2830 Honorable Stanley Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice Connors
JUSTICE CONNORS delivered the judgment of the court, with opinion. Justice Harris concurred in the judgment and opinion.
Presiding Justice Quinn dissented, with opinion.
¶ 1 This is an appeal from defendant's conviction for the offense of escape under section 5-8A-4.1 of the Unified Code of Corrections (730 ILCS 5/5-8A-4.1 (West 2008)), also known as the Electronic Home Detention Law. Defendant was indicted on that charge after he failed to appear at the Cook County Sheriff's Day Reporting Center program (Day Reporting program). He argues that the circuit court erroneously instructed the jury that a failure to appear at the Day Reporting program constituted escape under section 5-8A-4.1. He contends that the State introduced no evidence to establish that a failure to participate in the Day Reporting program was a violation of the Electronic Home Detention Law. For the following reasons, we reverse and vacate defendant's conviction.
¶ 4 In January of 2010, defendant Devon Rogers (also appearing in the record as "Rodgers") pled guilty to aggravated battery in a public place (720 ILCS 5/12-4(b)(8) (West 2008)) and attempted robbery (720 ILCS 5/18-1(a), 8-4(a) (West 2008)) in the Fourth Municipal District of the circuit court of Cook County. He was sentenced by the court to 24 months' probation and, as a condition of his probation, was ordered to participate in "120 days Cook County Day Reporting," an alternative incarceration program run by the Cook County sheriff's office.
¶ 5 On January 28, 2010, defendant failed to report to the Day Reporting program. He was subsequently apprehended and charged with escape under section 5-8A-4.1 of the Electronic Home Detention Law (730 ILCS 5/5-8A-4.1 (West 2008)). The indictment specifically stated that defendant "knowingly violated a condition of the Electronic Home Monitoring Detention Program [(Electronic Monitoring program)]" by "remov[ing] his external monitoring transmitter, and fail[ing] to report to day reporting as required."
¶ 6 Defendant was tried by a jury. The following evidence was adduced. The State's first witness was Willie Walker, who had been an investigator for the Cook County sheriff's police in its Electronic Monitoring program. Walker testified that the Electronic Monitoring program is "a program that's set up through the Sheriff's Department to place certain individuals that qualify for the program on house arrest, house confinement." He testified that some of the participants are assigned to the program as part of a sentence. Walker was responsible for interviewing the participants in the program and processing their paperwork.
¶ 7 Walker was specifically assigned to defendant's case. On January 12, 2010, he presented defendant with a "Cook County Sheriff's Office participant contract." Walker described it as a contract containing written guidelines and instructions about the Electronic Monitoring program. He stated that every participant in the program has to sign this contract. He also testified that there is "a day reporting program that may be a condition of electronic home monitoring." Walker identified People's Exhibit 1 as a "participant's contract for the Cook County Sheriff's Home Confinement Program, known as the electronic monitoring [sic]," signed by him and defendant.
¶ 8 The relevant portions of the contract state:
"You have been court ordered to participate in the Cook County Sheriff's Electronic Monitoring Program in lieu of being detained in the Cook County Department of Corrections, and do hereby agree to abide by the conditions of the Monitoring Program. By affixing your initials to each program condition and your signature at the end of this contract you do hereby agree to the fact that you fully understand this contract and agree to the conditions set forth herein.
You agree to remain within the interior premises of your residence twenty-four hours per day unless the Sheriff's Office Personnel have granted prior approval of an absence.
You agree to maintain a working telephone in your residence, a monitoring device in your residence, and on your person, or a monitoring device in your residence and on your person in the absence of a telephone.
You agree not to commit another crime while on Electronic Monitoring.
You understand that violation of the program conditions may result in a warrant being issued for your arrest for [the] crime of escape under 730 ILCS 5/5-8A-4.1.
Your signature below indicates the following: That you have read and agree to the above conditions.
That you have received a detailed copy of the rules and regulations of Electronic Monitoring and agree to follow and abide by them.
That you understand that failure to comply with the rules and regulations may result in your reincarceration into the Cook County Department of Corrections.
That you have viewed the Electronic Monitoring new release participant video."
Defendant initialed each of the program conditions listed and signed the contract.
¶ 9 On cross-examination, defense counsel asked Walker where the participant contract states that day reporting is a condition of the Electronic Monitoring program. Walker testified that the abbreviation "sent[.]" written in the corner of the Electronic Monitoring program participant contract was internal shorthand that meant that defendant was sentenced to the Day Reporting pro-gram. Additionally, he testified that the absence of any further court dates listed on the contract also indicated that defendant was sentenced to the Day Reporting program.
¶ 10 On redirect examination, the following colloquy took place between the assistant State's Attorney and Walker.
"Q. What was [defendant] sentenced to?
A. The [D]ay [R]eporting program.
Q. The [D]ay [R]eporting program. And a condition of the [D]ay
[R]eporting program is electronic home monitoring, is that correct?
¶ 11 On recross-examination, the following exchange occurred between defense counsel and Walker.
"Q. Is it your testimony that a condition of [the D]ay [R]eporting [program] is electronic monitoring?
A. They both work side by side. [Defendant] can't be in day reporting and be on electronic monitoring program without being sentenced to day reporting." Defense counsel then asked Walker:
"Q. Are there any documents, did [defendant] sign anything indicating a condition of day reporting is electronic monitoring?
A. There are other documents that are kept in his file. This is a participant contract [for the Electronic Monitoring program]."
Q. Okay. So you're saying there was a document that supports that a condition of day reporting is electronic monitoring?
A. Yeah. That document would come from the court system."
¶ 12 The State then called Sean Roberts, an investigator with the Cook County sheriff's day reporting unit. He testified that the Day Reporting program is an alternative incarceration program that provides drug treatment and education services to defendants while their cases are pending or as part of their sentences. Roberts served as a case investigator and met with program participants. He met with defendant on January 13, 2010, and explained to him the "rules and regulations for what we expect to be doing while [defendant is] under the custody of the Sheriff's Department as [he is] being placed on the Sheriff's Day Reporting [p]rogram, what the new conditions are, what we expect of [defendant]."
¶ 13 Roberts provided the following testimony about the conditions and restrictions of the Day Reporting program.
"We're going to expect [defendant] to report to us Monday through Friday, he will keep the home electronic monitoring equipment on him. To be monitored by home electronic monitoring it's mandatory he reports to us by 8:00 a.m. Monday through Friday and he'll be with us throughout the duration of the day till 3:00 p.m. and also to inform him he [can move about freely] from 6:00 a.m. in the morning to 9:00 p.m. in the evening where he has to return back home ***."
Roberts confirmed that he "explained to [defendant] that he would be monitored by the electronic monitoring."
¶ 14 Roberts testified that on January 28, 2010, defendant failed to report to the Day Reporting program, evidenced by his failure to sign the daily log. Roberts called defendant's house and spoke to his father. By noon, Roberts notified his supervisor that defendant did not report to the Day Reporting program as required.
¶ 15 Larry Parker, an investigator with the electronic monitoring unit, then testified. Parker was responsible for investigating violations of the Electronic Monitoring program and making unannounced visits to the program participants' homes. At about 2 p.m. on January 28, 2010, Parker and his partner were assigned to investigate a report that an electronic monitoring transmitter, or ankle bracelet, was removed or tampered with. They were dispatched to defendant's house, but defendant was not at home. Parker took the electronic monitoring receiver from defendant's house.
¶ 16 Finally, the State called Michael Gercone, an investigator in the fugitive unit of the Department of Community Supervision and Intervention (DCSI) within the sheriff's office. His unit was responsible for apprehending fugitives who leave DCSI programs -- which include the Electronic Monitoring program, the Day Reporting program, and boot camp, among others -- without permission. Gercone was assigned to investigate a report that defendant "took off from the program without permission," Gercone spoke to defendant's father on the telephone and then went to defendant's house. When Gercone arrived there, he found defendant at home sleeping. Gercone woke defendant up and took him into custody. Gercone testified that he personally recovered the ankle bracelet from defendant's house, but did not remember how he "[went] about recovering the ankle bracelet."
¶ 17 After the State rested its case, defense counsel made a motion for directed verdict. She argued that the State failed to prove that defendant committed the crime of escape by violating the conditions of the Electronic Monitoring program. She contended that the State failed to establish that defendant's attendance at the Day Reporting program was a condition of the Electronic Monitoring program. She noted that the participation contract that defendant signed does not require him to participate in the Day Reporting program. Defense counsel further argued that the State elicited no evidence that defendant tampered with his electronic monitoring equipment.
¶ 18 The court reviewed every condition contained in the participation contract to determine whether the State produced evidence of any violations. The State confirmed that it did not introduce into evidence any additional rules and regulations of the Electronic Monitoring program that were referenced in the participation contract. The following colloquy then took place.
"THE COURT: The fact that he did not show up on that one day on January 28 for the *** day reporting. *** How is it a violation of electronic monitoring? It's just a violation of probation. *** The fact that he did not show up for the day reporting in and of itself doesn't mean he violated the monitor.
[ASSISTANT STATE'S ATTORNEY]: Judge, day reporting is a condition of [the E]lectronic [M]onitoring program. Day reporting is a condition of the E[lectronic ]M[onitoring] program and E[lectronic ]M[onitoring] is a condition of day reporting, and you had two witnesses who testified to that. He violated a condition by not showing up on January 28th, and not signing the sign-in sheet.
THE COURT: All right. Is there something in these various documents you offered [to] indicate if you don't show up for the [D]ay [R]eporting program, that that's a violation of [the E]lectronic [M]onitoring program?
[ASSISTANT STATE'S ATTORNEY]: It's not in that document, but you had Investigator Sean Roberts who was [defendant's] case manager, who met with him and who testified that he told him he had to report five days a week, Monday through Friday, and he said he would give him until 8:15 to 3 p.m. to attend classes or, you know, the programs that they run in day reporting and that's a condition of the electronic monitoring program. They go hand in hand. Those were his words."
¶ 19 The State then addressed the tendered jury instructions.
"[ASSISTANT STATE'S ATTORNEY]: [U]nder the issues instruction for escape [under section 5-8A-4.1] those are one of the options it has [sic]; failed to report to day reporting. It's [Illinois Pattern Jury Instructions, Criminal, No. 22.77 (4th ed. 2000)].
THE COURT: The third proposition in the instructions is that he violated the condition of [the E]lectronic [M]onitoring [program] by, and the State says by not reporting to [the D]ay [R]eporting [program,] a condition of [the E]lectronic *** [M]onitoring [program].
You're saying that the fact that he didn't show up for the [D]ay
[R]eporting program on that one day, January 28, constituted the offense of escape [under 5-8A-4.1]?
[ASSISTANT STATE'S ATTORNEY]: Yes, that's a condition. I think we have carried our burden at this stage. I think it's a jury question whether or not [sic].
THE COURT: I guess he's probably right. *** Now, whether the jury is going to buy the argument that's an escape because he didn't show up for [the
D]ay [R]eporting [program] for one day and he's found in the house the same day later on. That's a jury question."
¶ 20 At that point, defense counsel sought clarification from the court.
"[DEFENSE COUNSEL]: [The court] indicated that the State is correct, but I haven't seen--
I did look at the pattern jury instruction, but I certainly didn't see that.
I reviewed the pattern jury instructions just to make sure we were on firm ground and I did not see it. The [c]court indicates the State is correct and I'm just wondering what the [c]court actually saw in here that would lead to that conclusion even though it's not in the contract --
THE COURT: I would point out you make the argument -- the defense[,] that is -- that what he got indicates [he] is in agreement with the [E]lectronic
[M]onitoring program. It doesn't necessarily say that if he misses one day, it's a violation, it's an escape or if he takes off the monitor it constitutes an escape. You can argue those things that it doesn't constitute escape and they can argue it does.
[DEFENSE COUNSEL]: Your Honor, it has to show on the contract. THE COURT: That's your argument. The ...