from the Circuit Court of Kane County. No. 12-CF-162
Honorable John A. Barsanti, Judge, Presiding.
JORGENSEN, JUSTICE delivered the judgment of the court, with
opinion. Justices McLaren and Burke concurred in the judgment
1 After a jury trial in which he proceeded pro se,
defendant, Leamon R. Cavitt Jr., was convicted of possession
with intent to deliver over 900 grams of cocaine (720 ILCS
570/401(a)(2)(D) (West 2012)), aggravated battery of a peace
officer (720 ILCS 5/12-3.05(d)(4), (f)(1) (West 2012)), and
aggravated fleeing or attempting to elude a peace officer
(625 ILCS 5/11-204.1(a)(2) (West 2012)). He was sentenced to
consecutive prison terms of 30 years, 3 years, and 1 year,
respectively. Defendant, now represented by counsel, appeals,
arguing that (1) the trial court committed reversible error
when, in response to the jury's request during
deliberations to view a surveillance-video exhibit, the court
restricted the jury's access to the video, allowing only
a single silent viewing in open court, and expressly
discouraged the jury's reliance on the video; and (2) his
conviction of aggravated fleeing or attempting to elude a
peace officer should be reversed, because the State failed to
prove that the officers involved wore "police
uniform[s]" (id. § 11-204(a),
11-204.1(a)). We reject defendant's second argument, but
we conclude that the court committed error in denying the
jury's request for the video and conducting the viewing
of it. Accordingly, we reverse and remand for a new trial.
2 I. BACKGROUND
3 In January 2012, police officers from Carpentersville and
from other law enforcement agencies arranged for an
undercover drug operation-specifically, a reverse-buy
bust-wherein officers posed as drug dealers, selling one
kilogram of cocaine for $29, 000 to defendant and Sentoro
Dunn. Several officers were assigned to surveillance and
security and others were assigned to arrest teams. Streamwood
police detective Juan Carrillo and Addison police detective
Jose Gonzalez (Gonzalez) posed as the dealers. The operation
occurred on January 17, 2012, at a McDonald's restaurant
at 1660 Ravine Lane in Carpentersville and resulted in
defendant's and Dunn's arrests.
4 A. Trial
5 Trial commenced on March 14, 2016. Under the State's
theory of the case, Carrillo contacted Dunn, who acted as a
middleman or broker for defendant, and they negotiated the
cocaine's price and quantity and agreed to meet to
execute the transaction. During opening statements, the State
informed the jury that the surveillance video of the
transaction came from the McDonald's security camera and
that it was "grainy and spotty video." "And as
you will see, the frame rate is a little weak and it only
shows one particular vantage point." (The events
occurred in the restaurant's west parking lot.) Police
testimony, according to the State, would provide insight from
other vantage points. The State then played for the jury a
16-minute, edited version of the video.
6 1. Officer James Schuldt
7 Carpentersville police officer James Schuldt, who
originated and oversaw the operation, testified that he was
part of the primary arrest team, which also included
Carpentersville officers Kevin Stankowitz, Chris Bognetti,
and Joseph Murphy. The primary arrest vehicle they used was a
black van with no police markings. The van had curtains over
the windows, so that no one could see in but the officers
could see out. The four primary arrest officers, according to
Schuldt, wore jeans, sweatshirts, and black tactical vests
with police markings on the front and back. He explained that
the front markings said "police" in white lettering
on the upper left chest area and the back said
"police" in white lettering "across the entire
upper back." The secondary arrest team wore identical
clothing. Part of Schuldt's operation plan, which he
communicated to all officers, was that the officers,
excluding the undercover officers and the two surveillance
officers inside the McDonald's, wear clearly visible
markings on their clothing so that "everybody knows that
we are the police out there."
8 The team parked a sedan one spot south of the black van as
a filler car, so that no civilians would be close to the
black van. Schuldt explained that there were two officers
just west of Ravine Road, facing east toward the restaurant.
Further, the secondary arrest team was in a blue minivan on
the northeast side of the restaurant, out of view of the west
side where the black van was parked.
9 The undercover vehicle-a Buick-arrived at the
McDonald's and parked two spots south of the black van
and next to the sedan. Defendant's vehicle was a tan
Cadillac, and it arrived and parked two spots south of the
Buick. A civilian vehicle was between the Cadillac and the
10 The operation proceeded. Schuldt testified that, after
Carrillo and Gonzalez walked inside the McDonald's, the
Cadillac arrived. Schuldt observed two individuals in the
vehicle, defendant (the driver) and Dunn (the front-seat
passenger). Dunn entered the restaurant and later exited
alone and walked to the passenger side of the Cadillac.
Schuldt could not see what Dunn and defendant were doing at
the car. At some point, while holding a white plastic
shopping bag, Dunn walked toward the west side of the
restaurant to where Carrillo and Gonzalez were standing. The
three men walked to the Buick and stood near the trunk. Dunn
then got into the passenger side of the Buick, and Carrillo
got into the driver's side. Gonzalez stood near the
front-passenger quarter-panel. When Schuldt observed the
arrest signal, he and the primary arrest team exited the
black van and proceeded to the passenger side of the Buick to
take Dunn into custody. Stankowitz, with his gun drawn, and
Schuldt opened the front passenger door and Schuldt announced
"Police, don't move" and he and his team
announced "Police. Police. You are under arrest. Police.
You are under arrest." He reached in, grabbed Dunn,
removed him from the vehicle, and arrested him, walking him
to the rear of the vehicle and, with Bognetti's
assistance, placing him in handcuffs.
11 Schuldt testified that he observed several bundles of
money throughout the front of the Buick, including on the
driver's seat and the passenger floorboard, and that he
observed one kilogram of cocaine in the center console area.
12 Simultaneous to Dunn's arrest, the blue minivan pulled
up behind the Cadillac and attempted to box it in so the
officers could arrest defendant. Schuldt saw someone start to
get out of the Cadillac and observed the backup lights
illuminate. He also saw the minivan's passenger-side
sliding door open, on the side facing the Cadillac. The
Cadillac backed up at "a pretty high rate of speed for
that short of [a] distance" and struck the minivan as
Streamwood corporal Miguel Cabrales began to step out of the
minivan. Schuldt heard a lot of shouting and several pops,
which he later learned were gunshots. (The minivan was parked
behind the Cadillac for less than five seconds before it was
struck.) He also observed Gonzalez at the rear passenger side
of the Cadillac. The Cadillac then accelerated forward and
went down an embankment onto Ravine Road and traveled south,
away from the restaurant.
13 Schuldt retrieved $30, 000 in cash from throughout the
front of the Buick.
14 2. Detective Juan Carrillo
15 Carrillo testified that, on January 16, 2012, he was asked
to participate in a reverse-buy-bust operation with the
Carpentersville Police Department. As part of the operation,
Carrillo called Dunn that evening. Carrillo stated that he
had heard that Dunn was looking for something, and Dunn
responded that he had been waiting for the call and was
looking for some "groceries, " which Carrillo took
to mean drugs. Carrillo responded that he had some, for $25,
000 or $30, 000 (for one kilogram, or about 36 ounces, of
cocaine), and Dunn stated that he needed "the good stuff
for his cousin in St. Louis, who would "take the
groceries to the kitchen, " which Carrillo understood to
mean that Dunn's cousin would cook the powder cocaine to
make crack cocaine. After several more calls, Carrillo and
Dunn agreed that they would meet the following day and that
Dunn would buy one kilogram of cocaine for $29, 000. Dunn
stated that his cousin would bring the "papers, "
16 On January 17, 2012, Dunn told Carrillo over the phone
that his cousin had the money and would buy one kilogram of
cocaine. Dunn, who was traveling from Rockford, would pick up
his cousin from a hotel, and they would meet Carrillo at a
McDonald's in Carpentersville. During the officers'
briefing that day, they decided to include Gonzalez as
another undercover officer, because the operation involved
large amounts of narcotics and currency and unknown
individuals with unknown criminal histories.
17 Gonzalez drove with Carrillo in the Buick to the
McDonald's and parked on the west side of the building.
The rest of the police team was already there, and the
kilogram of cocaine was in the trunk of the Buick. Carrillo
and Gonzalez entered the restaurant. Also inside, serving as
surveillance and rescue, were Addison detectives Roy Selvik
and Greg Garofalo. They were in street clothes and had no
markings to indicate that they were police officers.
18 Carrillo and Gonzalez ordered food and sat at a table on
the west side of the restaurant, with a view of the parking
lot where they had parked. Dunn called Carrillo to finalize
directions and inform him that he was traveling in the
Cadillac. The Cadillac drove into the parking lot, drove past
the black van, the sedan, and the Buick, and parked two spots
south of the Buick. From the restaurant, Carrillo could see
Dunn and defendant in the Cadillac. Dunn exited, walked into
the McDonald's, exchanged greetings with Carrillo, and
went to order food. Also, at one point, Dunn showed Carrillo
and Gonzalez his identification. Dunn told the officers that
he had the money, and they agreed to conduct the transaction.
19 Defendant exited the Cadillac, walked toward the trunk,
and retrieved something that he took back to the driver's
side of the vehicle. Defendant wore a brown baseball cap, a
brown shirt, and brown pants.
20 Carrillo, Gonzalez, and Dunn spent about five minutes in
the restaurant and then walked out. The officers remained by
the door of the restaurant, and, after Carrillo asked to see
the money, Dunn went to retrieve it. He retrieved a white
plastic grocery bag from the Cadillac, walked back toward the
officers, and opened the bag, which contained bundles of
21 Carrillo suggested that they complete the deal in the
Buick. Dunn agreed, and they walked to the car. Dunn sat in
the front passenger seat, and Gonzalez stood by the front
passenger area. Carrillo retrieved the cocaine from the trunk
and walked to the front driver's side. When he opened the
door, he saw bundles of money on the seat, some loose and
some banded together. He pushed aside the money, sat in the
driver's seat, and gave Dunn the cocaine. Dunn put it by
his feet. Dunn told Carrillo that there was $30, 000 total
but that they had to remove $1000 as a finder's fee for
him, because he had brokered the transaction.
22 At this point, Carrillo saw the arrest team approach and
heard them yelling, "Police, hands, police, hands."
He exited the Buick, and the arrest team arrested Dunn.
Carrillo then heard others yelling, "Get the Cadillac,
get the Cadillac." Carrillo walked toward the
driver's-side door of the Cadillac. Gonzalez then
approached, as did the blue minivan. Carrillo identified
defendant as the sole occupant of the Cadillac.
23 Carrillo announced to defendant three or four times,
"Police, get out of the car, police, get out of the
car." Defendant made eye contact with Carrillo and then
looked down and put the Cadillac in gear. Carrillo yelled,
"Put the car in park." His gun was drawn, at his
chest. Defendant looked over his right shoulder. Carrillo
heard the engine rev and the tires spinning. The Cadillac
moved in reverse. The blue minivan and Gonzalez were near the
rear passenger area. Carrillo moved back along with the
Cadillac. Carrillo twice shot his gun in defendant's
direction; he did not know if the bullets struck anything.
The Cadillac's rear driver's-side corner hit the blue
minivan at the front passenger door area, bounced forward,
and then again hit the minivan. Carrillo heard gunshots. The
Cadillac moved forward at a high rate of speed and drove over
a curb and some bushes, down an embankment, and south on
Ravine Lane. Carrillo saw that the rear window was broken.
24 Carrillo wore a black baseball cap, a tan canvas coat, a
red shirt, blue jeans, and work boots. His clothing had no
markings that identified him as a police officer.
25 Carrillo testified that the surveillance video does not
depict the events in real time. The images are "choppy
and it's frame by frame."
26 On cross-examination, Carrillo stated that Dunn never told
him his cousin's name. However, because Dunn said that he
would be with his cousin, Carrillo believed that defendant
was the cousin.
27 At this point in the proceedings, defendant played
portions of the surveillance video for the jury. Carrillo
identified himself, Gonzalez, and Dunn in the video. At time
stamp 15:25, Carrillo was at the driver's side of the
Cadillac. At 15:27, Carrillo was moving back along with the
Cadillac, and at 15:29, the Cadillac struck the blue minivan.
(Also at this time, Stankowitz stood in front of the
Cadillac.) At 15:31, the Cadillac moved forward. At 14:40,
Gonzalez walked toward the front of the Cadillac; at 15:23,
he was near the black van; at 15:25, he was near the Buick;
and, at 15:29, he was near the rear of the Cadillac.
28 Carrillo testified that he saw Gonzalez at the corner of
the Cadillac before it started moving. He could not recall
29 On redirect examination, Carrillo testified that, because
snow or ice obstructed the video, it does not show him
discharging his weapon or the Cadillac striking the blue
minivan. Carrillo estimated that he stood next to the
Cadillac for only a few seconds.
30 3. Officer Kevin Stankowitz
31 Stankowitz testified that he was on the primary arrest
team and was supposed to "arrest" one of the
undercover officers and then help out where needed.
32 Stankowitz testified that the Buick was two parking spaces
south of the black van, with the sedan in between. When
Stankowitz saw one of the undercover officers give the
predetermined arrest signal, Stankowitz alerted the rest of
the team, exited the black van, and waited at the rear of the
van for the others to exit. Then, Stankowitz went to the
front passenger-side window of the Buick. His assignment was
to get Dunn's attention and open the door for the
officers behind him.
33 Stankowitz knocked loudly on the Buick's window and
gave loud verbal commands to Dunn: "police
department" and "let me see your hands." He
observed that Dunn was holding money and had a bag of money
on his lap. Dunn attempted to conceal the money by putting it
back in the bag. Stankowitz opened the door, and two other
officers placed Dunn under arrest. Next, Stankowitz
"arrested" Gonzalez, to "play off the scenario
as if they were not free to leave also."
34 Stankowitz wore a sweater, a black tactical vest with
police markings on the front and the back, and a badge around
his neck. He also had a firearm on his right hip. Schuldt,
Bognetti, and Murphy also wore black vests with the same
35 After he "arrested" Gonzalez, Stankowitz turned
his attention to the Cadillac. He saw Carrillo standing at
the driver's side of the Cadillac, giving verbal commands
and pointing his weapon toward the vehicle. Stankowitz walked
toward the Cadillac, and Carrillo continued to give commands.
The Cadillac started backing up when Stankowitz was near the
front of the vehicle next to the Cadillac. The blue minivan
was about three to four feet behind the Cadillac at this
point and Stankowitz saw Cabrales exiting the minivan at the
side passenger door closer to the Cadillac. The Cadillac
backed into the minivan in a "[v]ery quick manner."
Stankowitz moved to the front passenger side of the Cadillac.
He placed his hands on the hood as it came to a stop, looked
at defendant, who looked back at him, and yelled
"police" and told him to stop the car. The Cadillac
moved forward, and Stankowitz quickly had to move out of the
way to avoid being struck. Cabrales, who was near the rear of
the Cadillac, discharged his weapon. Stankowitz never drew
his weapon, because there was a crossfire issue.
36 The Cadillac quickly drove through the parking lot and
down an embankment. Its rear window shattered from being
37 Stankowitz testified that the surveillance video did not
show everything as it occurred from his perspective. It was
"very choppy" and did not show, for example, when
he "arrested" Gonzalez.
38 On cross-examination, Stankowitz testified that Cabrales
fired his weapon as the Cadillac started moving forward.
Stankowitz did not see Cabrales get struck by the Cadillac.
39 At this point, defendant played portions of the video.
Stankowitz identified himself, at time stamp 15:28, in front
of the sedan. He stated that, at 15:29 or 15:30, he appeared
to be putting his hands on the Cadillac's hood but could
not be certain, due to the video's lack of clarity and
"it not playing all the way through."
40 4. Officer Joseph Murphy
41 Murphy testified that he was assigned to the primary
arrest team. From his position in the black van, Murphy could
not see outside. After the arrest signal was given, Murphy
alerted everyone on the police radio and exited the van on
the north side, out of the Cadillac's view.
42 After Dunn was arrested, Murphy ran to the rear of the
Cadillac, heard the engine rev, and saw the vehicle start to
move in reverse. To avoid being struck, Murphy moved to the
driver's side, toward the trunk. He saw the Cadillac
strike the blue minivan. Officers were shouting orders. The
engine started to rev again, and Murphy heard gunshots. The
Cadillac drove out of the lot, went down an embankment, and
turned left onto southbound Ravine Lane. The tires were
squealing, and the engine was very loud. It was traveling
43 Murphy testified that the weather conditions were icy and
snowy. There was a lot of snow on the ground. Murphy wore
blue jeans, a sweatshirt, and an outer vest carrier that had
police lettering on the front and back. He also wore a badge
on his belt clip and held a firearm.
44 On cross-examination, Murphy testified that he saw
Cabrales shooting. He did not see the Cadillac strike
Cabrales. Murphy saw the Cadillac strike the blue minivan
twice and heard gunshots before and after it struck the
minivan the second time.
45 5. Sergeant Paul Murray
46 Murray was part of the secondary arrest team, along with
Carpentersville sergeant Ostrem and Cabrales. Initially, the
blue minivan was parked on the northeast side of the
McDonald's lot, to avoid being seen by Dunn and
defendant. After the arrest signal was given, the minivan
moved and parked behind the Cadillac. As it came to a stop,
Cabrales started exiting the van via the passenger-side
sliding door. Murray, who sat in the front passenger seat,
had his hand on the door handle, about to exit, when he saw
the Cadillac's backup lights come on and heard the engine
rev. The Cadillac struck the minivan, knocked Murray from his
seat "almost" to the driver's-side floor
"tub area." He felt two additional but smaller
impacts as he tried to get back up to exit the minivan.
Murray then heard several muffled pop sounds, which he later
learned were gunshots. He ducked and tried three times to
open the door. He finally exited the minivan, because the
Cadillac had moved away. He unholstered his weapon. Cabrales
stood to his right and fired once. The Cadillac drove away
from the area.
47 Murray walked over a berm to ensure that the Cadillac was
gone. He returned to the scene and determined that three
officers had fired their weapons. He learned that Cabrales
was struck by the Cadillac and needed medical attention.
48 Cabrales wore a raid jacket, which is a windbreaker with
black police markings on the front and back. He also wore a
vest with police markings in a different color on the front;
the windbreaker covered the police markings on the back of
the vest. Murray himself wore a light tan shirt with no
police markings and a vest with police markings in gold.
49 During cross-examination, defendant played the
surveillance video and had Murray describe certain actions
depicted therein. At time stamp 15:28, the Cadillac began
backing up. Because of the snow, Murray was unsure if this
was when the Cadillac struck the minivan. At 15:31, Murray
tried to pick himself up. When Murray exited the minivan, the
Cadillac was facing west and moving slowly. When Cabrales
fired his weapon, the Cadillac pulled forward.
50 On redirect, Murray testified that the video did not
fairly and accurately depict all of the events that occurred.
First, because it is a frame-by-frame video and not in real
time, some action is missing between the frames. Second,
there is no sound. Third, the officers' perspectives were
different from that portrayed in the video, which consists of
an overview of the parking lot.
51 6. Dr. Joseph Ogarek
52 Dr. Joseph Ogarek, an emergency room doctor at Lutheran
General Hospital, treated defendant. He asked defendant what
brought him to the hospital, and defendant replied that he
was involved in a shooting. Defendant also stated that he was
the driver of a vehicle and that he thought he was involved
in a suspected drug deal.
53 On cross-examination, Ogarek testified that defendant was
in critical condition at the emergency room, but he agreed
that defendant was not "on anesthetics" and was
alert and oriented to person, time, and place. Defendant had
been shot in the cheek and had three holes in his back
consistent with gunshots.
54 On redirect, Ogarek testified that defendant's
responses to questions were logical and that he was coherent
the entire time.
55 7. Corporal Miguel Cabrales
56 Cabrales testified that he was part of the secondary
arrest team. He wore a Streamwood beanie with a badge that
said "police officer, " a long-sleeved black shirt
that said "police" along the sleeves, an armor life
vest that said "police" in white lettering on the
front and back, a police lanyard with his ID on it that said
"police, " a hanging badge for the police
department, a badge on his belt, blue jeans, and gym shoes.
57 Once the blue minivan stopped behind the Cadillac,
Cabrales exited the minivan, saw the brake and reverse lights
activate on the Cadillac, heard the engine revving, and heard
the tires spinning. The minivan was two to three feet behind
the Cadillac. As Cabrales's feet hit the ground, the
Cadillac hit him and the right rear panel of the minivan. The
upper portion of his body flew forward onto the
Cadillac's trunk. While he was on the Cadillac, it moved
forward and back again. When he got to the right rear of the
Cadillac, he heard two gunshots. Cabrales looked inside the
vehicle and saw defendant looking at him. Thinking that
defendant shot at him, Cabrales retrieved his weapon and
fired into the Cadillac seven times. Carrillo was the only
other officer he saw as he fired his weapon. Cabrales
suffered a bruised left thigh.
58 On cross-examination, Cabrales testified that the Cadillac
was parked at a 45-degree angle and that the right rear
portion simultaneously struck him and the minivan.
59 8. Detective Roy Selvik
60 Selvik testified that he and Garofalo, his partner, were
assigned as inside surveillance and safety for the undercover
officers. Selvik and Garofalo were dressed in plainclothes
with no identifiable markings.
61 While Selvik sat at a table with a view of the west
parking lot, he saw the Buick arrive. Carrillo and Gonzalez
entered the restaurant and sat at a table. Selvik could see
them but could not hear their conversation. He also saw the
Cadillac arrive. Dunn and defendant exited the Cadillac and
walked to the rear of the vehicle. They talked, and then Dunn
walked into the restaurant. Defendant opened the trunk,
retrieved a white grocery bag that had some items inside, and
got back in the driver's seat.
62 Dunn sat and spoke with Carrillo and Gonzalez. He then got
up, ordered food, and returned to the table. They conversed
and then got up and exited through the west door. Carrillo
and Gonzalez remained near the door, and Dunn walked to the
Cadillac, retrieved from the passenger side the white bag,
walked back toward the officers, and showed them the
bag's contents. The three men then walked to the Buick.
Gonzalez walked toward the passenger side, near the trunk
area; Dunn entered the passenger side; and ...