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People v. Cavitt

Court of Appeals of Illinois, Second District

September 30, 2019

LEAMON R. CAVITT JR., Defendant-Appellant.

          Appeal 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 and opinion.



         ¶ 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 Buick.

         ¶ 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, " i.e., money.

         ¶ 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 money.

         ¶ 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 seeing Cabrales.

         ¶ 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 police markings.

         ¶ 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 shot.

         ¶ 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 fast.

         ¶ 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 ...

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