Appeal from Circuit Court of Vermilion County No. 10CF647 Honorable Claudia S. Anderson, Judge Presiding.
JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Turner concurred in the judgment and opinion.
¶ 1 On remand from this court's opinion in People v. Harper, 2012 IL App (4th) 110880, 969 N.E.2d 573, the trial court issued a written order, suppressing statements defendant made during his custodial interrogation. The State appeals, arguing the court erred in suppressing this evidence pursuant to section 103-2.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2008)). We reverse the trial court's suppression order and remand for further proceedings, holding the court erred in finding defendant's statements were not reliable.
¶ 2 I. BACKGROUND
¶ 3 As this court discussed the circumstances leading to the prior appeal in detail in the first opinion in this case (Harper, 2012 IL App (4th) 110880, ¶¶ 4-14, 969 N.E.2d 573), we need not repeat them here. This court reversed the trial court's ruling suppressing the digital video disc (DVD) recording and the transcript of the DVD recording, finding the court "(1) erred in interpreting section 103-2.1 of the Code*** and (2) made insufficient findings to determine whether defendant's custodial statements are inadmissible pursuant to section 103-2.1 of the Code." Id. ¶ 2, 969 N.E.2d 573. This court remanded the case, directing the trial court to determine (1) whether the electronic recording is substantially accurate, and, if not, (2) "whether the State established by a preponderance of the evidence defendant's statement is dependable and fit to be relied upon based on the totality of circumstances in this case." (Emphasis in original.) Id. ¶ 36, 969 N.E.2d 573.
¶ 4 According to this court's opinion:
"The trial court erred in this case by focusing its attention on the language 'intentionally altered' in subsection (b)(2) (725 ILCS 5/103-2.1(b)(2) (West 2008)). The record in this case contains no evidence anyone altered the electronic recording. Even though the trial court positively remarked on the integrity of both police officers and found no evidence the officers did anything untoward or deliberately altered the electronic recording, the court nevertheless focused on the language concerning intentional alterations to the electronic recording. ***
Instead of focusing on the 'intentional alteration' language, the trial court should have examined whether the lack of audio in certain parts of the electronic recording made the recording substantially inaccurate. [(Emphasis added.)] As to this factor, the intent of the police officers is not relevant. However, the court never specifically found the electronic recording [(emphasis added)] was not 'substantially accurate.' Even if the court made a finding the electronic recording was substantially inaccurate, it still needed to determine whether the State proved 'by a preponderance of the evidence [defendant's] statement was voluntarily given and is reliable, based on the totality of the circumstances.' (Emphasis added.) ***
The trial court clearly found the electronic recording [(emphasis in original)] unreliable as a whole, even though it contains 78 minutes of apparently accurate video and audio recording. However, determining whether the statement [(emphasis in original)] is reliable is a completely different question that went unanswered by the court despite both the State and defendant making arguments regarding the reliability of the statement. Having found defendant's statement voluntary, the trial court needed to determine whether defendant's voluntary statement was also reliable under the totality of the circumstances. In determining reliability, the trial court can consider such things as the age and mental capacity of the defendant, the presence or absence of coercion, the length of the interrogation, whether the defendant had been deprived of sleep or food and water or use of a bathroom, whether the defendant—if an addict—was in the throes of withdrawal, and any other factor that may affect the reliability of the statement." Id. ¶¶ 30-34, 969 N.E.2d 573.
¶ 5 On remand, the trial court allowed the parties to file written briefs on the issue. On December 24, 2012, defendant filed a motion to suppress his statements pursuant to section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)). Defendant argued his entire statement should be suppressed because the inaudible section of the electronic recording violated section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)). Defendant recognized, however, no Illinois court had decided whether a partially inaudible video recording of a custodial interrogation violates section 103-2.1.
¶ 6 The State argued the trial court should find the recording was substantially accurate. In the alternative, the State argued it had "overcome the presumption of inadmissibility by proving by a preponderance of the evidence the defendant's statement was voluntary and reliable."
¶ 7 On February 1, 2013, the trial court issued a written order. Although the order is somewhat confusing, the trial court found the "electronic recording" of defendant's custodial interview was "substantially inaccurate." The court still found defendant's statements were voluntarily provided. However, the court found the State failed to meet its burden of ...