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People v. Patterson

Court of Appeals of Illinois, Third District

September 6, 2017

BRIAN D. PATTERSON, Defendant-Appellant.

          Modified upon denial of rehearing October 27, 2017

         Appeal from the Circuit Court of Peoria County, No. 13-CF-1080; the Hon. Kevin Lyons, Judge, presiding.

          Michael J. Pelletier, Peter A. Carusona, and Mark D. Fisher, of State Appellate Defender's Office, of Ottawa, for appellant.

          Jerry Brady, State's Attorney, of Peoria (Patrick Delfino, Lawrence M. Bauer, and Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justices Lytton and Schmidt concurred in the judgment and opinion.



         ¶ 1 The defendant, Brian D. Patterson, appealed his conviction for burglary of an Arby's.

         ¶ 2 FACTS

         ¶ 3 The defendant was charged by indictment with burglary (720 ILCS 5/19-1(a) (West 2012)). The indictment alleged that the defendant knowingly and without authority entered an Arby's on August 25, 2013, with the intent to commit theft.

         ¶ 4 On September 22, 2014, with a second addendum filed on October 9, 2014, the defendant filed a motion to preclude the prosecution from introducing evidence of phone calls downloaded from the defendant's cell phone. The State argued that the phone calls were downloaded pursuant to a search warrant and by way of a recording application on the defendant's phone that was not placed there by police. The defendant argued that the recording application was not placed by the defendant, alleging that it was placed on his phone by the FBI. Defense counsel had subpoenaed a witness who would say the FBI had approached her regarding the defendant, but the witness did not appear. The trial court set the motion hearing over until the following Tuesday, the same day the trial was scheduled to start. On Monday, the defendant filed a motion to suppress, arguing that the recording application was placed on his phone by persons in the government. On Tuesday, prior to trial, the trial court denied the motion to suppress, based upon the proffer of evidence in court and the untimeliness of the motion. The State claimed that it had contacted a federal agent, but he was not available on that day to rebut any evidence by the defendant. The defense witness again did not appear, but defense counsel said her testimony would be about the FBI approaching her and asking her to make a phone call to the defendant so the FBI could listen in. Her testimony would not be about the application on the defendant's phone. The defendant did not attempt to subpoena the FBI agent.

         ¶ 5 The case proceeded to a jury trial. Ryan Litchfield testified that he arrived for work at Arby's at around 4:50 a.m. on the morning of August 25, 2013. He had a key to get in the building, and he thought only two people had keys to the building on that day. He did not look at the safe until around 6 a.m., when he let a coworker in, who noticed two holes in the side of the safe. Litchfield also noticed metal shavings around the safe but did not see any footprints in the shavings. Jessica Appel, the shift manager at Arby's, testified that she arrived at work that morning around 7:50 a.m. She noticed the holes and opened the safe to find the money from the night before was missing. Appel had no personal knowledge of the amount of money in the safe because she did not work the night before, but she checked the company's records and found that $400 was missing. Appel called the police. Appel testified that she had a key to the building, and she thought that six people had keys, including the manager who had been let go four days earlier.

         ¶ 6 The police investigated at the Arby's and took photographs of the scene. The police did not find any fingerprints or footprints and did not find any signs of a forced entry. After the defendant became a suspect, the police obtained a search warrant and searched the defendant's home and his vehicle. The trunk of the defendant's vehicle contained a drill, an extension cord, charger battery, sledge hammers, a chisel-type tool, grinding wheels, drill bits, flashlights, a lock pick set, pliers, and cutting shears. There were also gloves, a black backpack, a black duffle bag, black pants, and plastic bags. A cell phone was recovered from the defendant's person, and files were downloaded from the phone and placed on a flash drive. Around 100 recorded calls were downloaded from the phone. Four recordings were made in the early morning hours of August 25, 2013, and those four files were renamed by the police but not altered. The testimony was that those four calls were made at 2:09 a.m., 2:25 a.m., 2:38 a.m., and 3:28 a.m. on August 25, 2013.

         ¶ 7 The defendant testified that he was a senior software engineer and he wrote books on computer programming and database design. He testified that on August 25, 2013, he was working and hanging out with a friend. He was familiar with the Arby's but did not go there that morning. He testified that he exchanged messages with his girlfriend, Angelique Brachle, in the early morning of August 25 and the four recorded phone calls were between him and Brachle. The defendant testified that he was in his garage for the fourth call and he made a snide remark at the end of the call for the FBI, who he believed had been listening to his calls since May 2013. That remark is not on the audio of the fourth call. The defendant testified that the fourth call was just for the benefit of the FBI, wherein he and Brachle were pretending to commit some sort of theft. He did not know who installed the third-party recording application on his phone. He did go to the Arby's a few days after August 25 because he heard it had been broken into.

         ¶ 8 Brachle testified that she was probably with the defendant on the morning of August 25, and she could not recall if they went to the Arby's that morning. However, she was currently on probation because she had pled guilty to the burglary of the Arby's. She testified that she went with the defendant to the Arby's one night after dark, but she could not remember the specific day. She waited in the car while the defendant went up to the building. He was carrying a backpack, and it was after the Arby's had closed. She saw him go toward the building and later come back and get in his own car a few rows down from hers. Brachle testified that the defendant was doing research for ...

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