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People v. Nunn

Court of Appeals of Illinois, Third District

October 31, 2014

MICHALA R. NUNN, Defendant-Appellant

Appeal from the Circuit Court of the 9th Judicial Circuit Knox County, Illinois. Circuit No. 11-CF-204. Honorable Paul L. Mangieri Judge, Presiding.


Defendant's convictions for aggravated battery and resisting arrest arising from an incident in which she began kicking police officers who were responding to a verbal altercation at a convenience store between defendant and her ex-boyfriend and his girlfriend were vacated where the trial court erred in denying defendant's motion to dismiss based on her claim that she was denied due process when the police ordered the onlookers to stop using their cell phones to record the incident and to delete any recordings, since the officers demonstrated bad faith when they failed to take any action to preserve the recordings and thereby deprived defendant of her due process right to " potentially useful evidence."

Kerry J. Bryson (argued), of State Appellate Defender's Office, of Ottawa, for appellant.

John T. Pepmeyer, State's Attorney, of Galesburg (Richard T. Leonard (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justice McDade concurred in the judgment and opinion. Justice Schmidt dissented, with opinion.


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[¶1] Defendant Michala Nunn was convicted by a jury of aggravated battery of a peace officer and resisting arrest and sentenced on the battery charge to 2 years' probation and 14 days in the county jail. She appealed her conviction, arguing that she was denied a fair trial before an impartial jury and was denied due process when the police ordered the destruction of cell phone videos recording her arrest. We reverse and remand.

[¶2] FACTS

[¶3] In April 2012, defendant Michala Nunn was charged with four counts of aggravated battery (720 ILCS 5/12-4(b)(18) (West 2010) (renumbered 720 ILCS 5/12-3.05(d)(4) (West 2012) (eff. July 1, 2011)) and two counts of resisting arrest (720 ILCS 5/31-1(a-7) (West 2010)). The charges stemmed from an incident at the Quick Sam's convenience store in Galesburg that took place in May 2011. Police were called to the store to respond to a verbal altercation between Nunn, her ex-boyfriend and his girlfriend. Nunn was allegedly uncooperative with the officers and proceeded to kick at them. An officer arrested Nunn, handcuffed her and threw her to the ground, knocking out her two front teeth. Nunn spit blood, allegedly at the officers, and was eventually transported to the hospital by paramedics, where she was treated for her injuries.

[¶4] Jury summonses were issued and voir dire commenced. The State presented the venire panels with three hypotheticals. The first hypothetical concerned speeding and the jury's ability to follow the law even if the jurors disagreed with it. The second hypothetical concerned the State's burden to prove the defendant guilty beyond a reasonable doubt and involved scenarios where jurors would have to weigh evidence and assess witness credibility. The third hypothetical involved a wedding scenario and the jury's responsibility to sort through differing evidence. The State presented the hypotheticals to each panel of venirepersons and alternates. Nunn objected at one point but the trial court overruled the objection.

[¶5] A jury was empaneled, along with two alternate jurors. A trial took place. Several Galesburg police officers who were at the arrest scene testified for the State, including Kyle Winbigler, Lee McCone, and Charles Bush. Allison Buccalo, a police

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dispatcher who was on a ride-along, also testified for the State. Winbigler, the arresting officer, noticed witnesses recording the police interaction with Nunn on their cell phones and saw other officers try to take the phones. When the witnesses refused to turn over their phones, the officers told them to delete any recordings. Winbigler believed the police had authority to seize the phones but there was insufficient manpower on the scene to do so. McCone estimated there were " several" people at the scene but he did not see anyone recording or officers asking the crowd to delete any recordings. McCone stated it was okay for people to tape in public but he was unsure whether the officers could lawfully seize the phones. McCone also admitted that he " put" Nunn to the ground to restrain her.

[¶6] Bush assisted in crowd control at the scene and saw McCone " take" Nunn to the ground. He estimated 100 to 200 people were watching Nunn's arrest and some people were recording the encounter. The crowd was gathered 20 to 30 feet from the arrest area. He told the witnesses who were recording to delete the video or turn the phones over as evidence. Although he had the authority to seize the phones, no one volunteered to turn his or her phone over to him. He believed the witnesses had the right to record in public and that the recordings would have captured the events and been material to Nunn's guilt. Bush was unable to obtain any contact information from the recording witnesses because he was trying to maintain order, which was his primary focus. He was more concerned with maintaining order than identifying witnesses. He could have made an attempt to identify people at a later time. There were five or six other officers present. Buccalo described the crowd as large and said it turned unruly, although some people were telling Nunn to " stop resisting."

[¶7] The State presented the rest of its witnesses and rested. Nunn moved to dismiss on the basis of the State's destruction of the cell phone evidence, which she argued denied her due process. The trial court took the motion under advisement, determining that it would rule at the end of the proceeding. Nunn also moved for a directed verdict, which the trial court denied. Nunn offered several witnesses, including Jacqueline Tate, Stephanie Ann Corbin, Kailyn Hogue, Candis Morrison, ShaVona Haymon, and David Taylor, who described that she was cooperative with the police and was thrown to the ground without apparent reason.

[¶8] Tate testified she saw people were recording the arrest and heard police tell the witnesses to put their phones down or go to jail. Tate tried to record the arrest but the police told her that they would take her to jail if she did not put her phone away. She was able to record three officers standing around Nunn, who was on the ground with one officer's knee in her back. Tate did not offer her recording to the police. At the time of trial, Tate's phone was broken but she thought someone could " probably" get the video off of it.

[¶9] Corbin testified that she saw Nunn slammed to the ground after barely moving her uncuffed arm. Corbin described that about 25 people were in the crowd and some of them were recording with their phones. She saw Tate's phone " snatched" by an officer, who told Tate, " You can't have that. You can't record. That's illegal." She also heard the officers threaten the recording witnesses that they could go to jail. Hogue, Morrison, and Haymon similarly testified that the police told witnesses who were recording that they had to delete the recordings, leave the scene, or go to jail. Haymon was also told the police would tow her car and

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arrest her for obstructing justice. Taylor, who was recording the arrest, said that an officer told him he could not record, took his phone, and deleted the recording. He later took still photographs but no longer owned the phone and did not have access to ...

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