Speedy-Trial Updates in Second and Third Districts
The Second and Third District Appellate Courts recently delved into the always important speedy-trial statute in People v. Rogers, 2020 IL App (3d) 180088, and People v. Ingram, 2020 IL App (2d) 180353. In Rogers, the Third District Appellate Court found that the defendant’s speedy-trial rights were violated in his DUI prosecution when the state failed to join new DUI charges within the 160-day speedy-trial time frame. In Ingram, the Second District found that the speedy-trial term did not lapse when the defendant agreed to the next available trial date.
Under the joinder statute, the state is required to charge a defendant with all the offenses that arise from the same act. See 720 ILCS 5/3-3. Joinder issues can be affected by speedy-trial demands, especially when the state adds additional charges. On speedy-trial and joinder issues, the Illinois Supreme Court has stated that
[c]ompulsory joinder requires the State to bring multiple charges in a single prosecution. The charges are tried together unless the circuit court determines that a separate trial is required in the interest of justice. . . . Once a speedy-trial demand is filed, the multiple charges are subject to the same speedy-trial period. If the charges are required to be brought in a single prosecution, the speedy-trial period begins to run when the speedy-trial demand is filed, even if the State brings some of the charges at a later date. “Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges.” [Emphasis added.] [Citation omitted.] People v. Quigley, 183 Ill.2d 1, 697 N.E.2d 735, 741, 231 Ill.Dec. 950 (1998).
People v. Rogers
In People v. Rogers, 2020 IL App (3d) 180088, the Third District Appellate Court found that the defendant’s speedy-trial rights were violated in his DUI prosecution when the state failed to join new DUI charges within the 160-day speedy-trial time frame.
On November 25, 2015, the defendant was charged with DUI pursuant to §11-501(a)(4) (driving under the influence of drugs or combination of drugs) (DUI (a)(4)) of the Illinois Vehicle Code, 625 ILCS 5/1-100, et seq., after being involved in an accident. The defendant was taken to a hospital where a blood test was performed. The officer filed the citation and complaint on December 1, 2015. 2020 IL App (3d) 180088 at ¶3. His counsel filed a speedy-trial demand on December 14, 2015. 2020 IL App (3d) 180088 at ¶4.
On April 6, 2016, the state filed a superseding information charging both DUI (a)(4) and DUI pursuant to 625 ILCS 5/11-501(a)(6) (any amount of a drug, substance, or compound in the person’s breath, blood, other bodily substance, or urine) (DUI (a)(6)). The parties continued the case for trial until May 20, 2016, during which the state asked for a continuance. 2020 IL App (3d) 180088 at ¶¶5 – 6. Although the continuance was granted over defense objection, the defense agreed to toll speedy trial. 2020 IL App (3d) 180088 at ¶6. The trial was reset to June 27, 2016, on which date the state was granted another continuance because a laboratory witness was unavailable. The continuance was again granted over defense objection but with the defense agreeing to toll speedy trial. 2020 IL App (3d) 180088 at ¶7.
The state asked for a third continuance on September 20, 2016, because recent changes to the DUI statute required additional testing on the defendant’s blood sample. The defense answered ready for trial and objected to the continuance. The continuance was granted over objection and reset for trial on December 5, 2016. The period from September 20 until December 5 counted against the state (77 days). 2020 IL App (3d) 180088 at ¶8.
The state filed another superseding information on October 28, 2016, this time adding a charge pursuant to 625 ILCS 5/11-501(a)(7) (driving under the influence of cannabis) (DUI (a)(7)). The parties agreed to reset the trial until December 20, 2016, tolling speedy trial. 2020 IL App (3d) 180088 at ¶¶9 – 10.
A stipulated bench trial commenced on January 17, 2018, after additional continuances. The state proceeded only on Count 1 of the superseding information, DUI (a)(6). The trial court found the defendant guilty of DUI (a)(6). 2020 IL App (3d) 180088 at ¶11.
The appellate court found that defense counsel was ineffective for not moving to dismiss the case because the state’s compulsory joinder of the new charges on April 6 plus the state’s continuances exceeded the 160-day speedy-trial deadline. 2020 IL App (3d) 180088 at ¶14.
The Rogers court noted that there is currently a split of authority regarding whether compulsory joinder applies when the police officer files the initial charge. For instance, the Second District held in People v. Thomas, 2014 IL App (2d) 130660, 11 N.E.3d 861, 381 Ill.Dec. 925, that compulsory joinder applied to traffic citations. However, the Third District held in People v. Kazenko, 2012 IL App (3d) 110529, 972 N.E.2d 815, 362 Ill.Dec. 100, that compulsory joinder did not apply to a new 625 ILCS 5/11-501(a)(2) (DUI (a)(2)) charge when the original 625 ILCS 5/11-501(a)(5) (DUI (a)(5)) charge was filed as a traffic citation. 2020 IL App (3d) 180088 at ¶27.
The Rogers court sided with the Thomas court and held that compulsory joinder can apply to misdemeanor charges that are filed initially by an officer. The Rogers court said that the officer could have filed both DUI charges in December 1, 2015 — DUI (a)(4) and DUI (a)(6) — because both charges are similar and the facts established that the officer had enough knowledge to charge both DUI offenses at that time. Therefore, both DUI charges were subject to compulsory joinder. 2020 IL App (3d) 180088 at ¶27.
The Rogers Court concluded that since the officer suspected the defendant of ingesting some drugs for the DUI (a)(4) charge, then he had sufficient knowledge to believe that the defendant had any amount of drugs for DUI (a)(6). 2020 IL App (3d) 180088 at ¶30. The court said that the state accumulated 114 days under the speedy-trial clock when it filed the first superseding information on April 6 because the speedy-trial demand was filed on December 14 (114 days).
The state’s continuance from September 20, 2016, until December 1, 2016, accumulated 72 days. The 114 days originally accumulated plus the next 72 days exceeded the 160-day speedy-trial limit. 2020 IL App (3d) 180088 at ¶34.
The Rogers decision has now created a split of authority within the Third District on whether the joinder rule applies when the original DUI was issued through a traffic citation as the decision appears to conflict with its earlier decision in Kazenko. The Rogers decision appears to conflict with the Second District’s opinion in Thomas.
Therefore, DUI practitioners should be aware of conflict of authority precedent when arguing in their respective district. See Sidwell v. Griggsville Community School District 4, 208 Ill.App.3d 296, 566 N.E.2d 838, 840, 152 Ill.Dec. 961 (4th Dist. 1991), explaining that, in the absence of a Supreme Court decision directly in point, a circuit court should follow the precedent of the appellate court of its district, if such precedent exists. If not, it is to follow the precedent of other districts if there is such precedent. If that of other districts is in disagreement, the circuit court may then choose which precedent it considers to be most nearly correct.
People v. Ingram
In People v. Ingram, 2020 IL App (2d) 180353, the Second District found that the speedy-trial term did not lapse when the defendant agreed to the next available trial date. In general, a defense attorney’s express agreement to a continuance may be considered an affirmative act that contributes to a delay attributable to the defendant. 2020 IL App (2d) 180353 at ¶16. Depending on the circumstances, a defense attorney’s acquiescence to the next available trial date — if that date is within the speedy-trial term — is not necessarily a delay that would be attributable to the defendant. Id.
In Ingram, the defendant was charged with battery on July 31, 2017, and his attorney’s speedy-trial demand was filed on August 3, 2017. 2020 IL App (2d) 180353 at ¶3. On November 1, 2017, there was an agreed continuance to set the bench trial over to February 1. No court reporter was present. The state was granted a continuance over objection on January 25, 2018, until a May 3, 2018, trial setting. 2020 IL App (2d) 180353 at ¶¶4 – 5.
On February 1, 2018, the trial court then moved back the trial setting to April 12, 2018. The trial court’s order reflected that defense counsel was aware of the new date and objected to all continuances. 2020 IL App (2d) 180353 at ¶6.
The defendant filed a motion to dismiss on the basis that his speedy-trial rights were violated. The defendant specifically argued that the February 1 trial setting should not have been attributed to him. The defendant contended that his agreement to a trial setting within the speedy-trial term did not constitute a delay of the trial. 2020 IL App (2d) 180353 at ¶7.
The appellate court disagreed and cited the trial court’s record. The appellate court said that the trial court noted that the continuance from November 1, 2017, to February 1, 2018, was by agreement and therefore attributable to the defendant. The trial court based this finding on its own recollection and the language of the orders. The trial court further noted that the defendant affirmatively agreed to the continuance instead of merely acquiescing to the trial setting within the speedy-trial period. The appellate court stated that in contrast, the order from January 25, 2018, reflected that the defendant was demanding trial when he objected to the continuance. 2020 IL App (2d) 180353 at ¶23.
The Ingram court concluded that the defendant failed to meet his burden of showing that his speedy-trial rights were violated. The court emphasized that it was the defendant’s burden to submit a complete record to support his contentions of error. Since there were no transcripts from the November 1 hearing, no bystanders’ report, nor an agreed statement of facts, the defendant was unable to meet his burden to show that the trial court erred otherwise. 2020 IL App (2d) 180353 at ¶25.
The Ingram decision is a reminder for practitioners to create thorough records of why a case has not proceeded to trial. But the best way to avoid speedy-trial issues is always to ensure that the case gets tried well within the speedy-trial period.
Technology, Evidence, and Criminal Defendants
In a recent decision by the Third District of the Illinois Appellate Court, the state court ruled that while illegally obtained audio recordings are inadmissible (as violations of eavesdropping statutes), simultaneously recorded video recordings and testimonial evidence by governmental agents participating in the recorded conversation are both admissible. People v. Davis, 2020 IL App (3d) 190272.
The undisputed facts of the case provided that law enforcement received “an overhear authorization from the state’s attorney,” which allowed for “the recording of a controlled drug purchase between the [confidential informant] and a specific individual targeted for selling narcotics.” 2020 IL App (3d) 190272 at ¶5. When the target did not show up for the transaction, the confidential informant instead “conducted a drug transaction with defendant,” which was recorded using a device that simultaneously records audio and video. Id. While both parties agreed that the eavesdropping statute barred the audio recording from admissibility, they disagreed on whether the simultaneously recorded video evidence and any testimony from the confidential informant regarding the confidential informant’s personal knowledge of the recorded conversation were also barred as “fruit[s] of a poisonous tree.” 2020 IL App (3d) 190272 at ¶¶4, 6.
If It Can Be Separated, Then It Is Separate
In its majority opinion, the appellate court focused on Illinois Supreme Court precedent, specifically People v. Gervasi, 89 Ill.2d 522, 434 N.E.2d 1112, 61 Ill.Dec. 515 (1982). In Gervasi, the defendant engaged in telephone conversations with investigators who suspected the defendant of bribery, all while court reporters were eavesdropping on the conversations via an extension phone that had its speaking element removed. Id. While the defendant moved to have both the audio recordings themselves and any testimony regarding the contents of the recorded conversations excluded as inadmissible, the Illinois Supreme Court ruled otherwise:
On review, the supreme court first found that the extension phone with the speaking element removed constituted an eavesdropping device. [Gervasi, supra, 434 N.E.2d at 1114.] Therefore, the court found that the court reporters eavesdropped on defendant’s telephone calls. [434 N.E.2d at 1115.] The supreme court found the court reporters’ testimony and transcriptions were inadmissible as to the telephone conversations. [Id.] By contrast, the court held that the investigators that spoke to defendant over the phone could testify to the contents of the conversation. [434 N.E.2d at 1116.] The court found that the investigators did not eavesdrop but acted as a party to the conversation. Id. Therefore, the court held that the officers’ knowledge of the conversation did not derive from illegal eavesdropping. 2020 IL App (3d) 190272 at ¶15.
Applying similar logic, the appellate court in Davis held that the audio recording itself constituted illegal eavesdropping evidence and was barred from admissibility. 2020 IL App (3d) 190272 at ¶13. Notwithstanding that determination, the court also held that the confidential informant’s own personal knowledge of the conversation as a party to that conversation constituted evidence that was wholly separate from the illegal eavesdropping, thus ruling that the confidential informant was not barred from testifying to the contents of the conversation that he had with the defendant. Id.
Again, applying the same logic (i.e., that evidence obtained independent of the illegal audio eavesdropping is admissible), the court held that the video portion of the recording is admissible because it is technically not a part of the audio recording. Id. This finding stands regardless of the fact that the video and audio recordings were conducted simultaneously and from the same device. As the court wrote in a footnote:
We note that defendant only argued that section 14-5 barred the video portion of the recording. Defendant made no argument that the video recording standing alone should be barred under any other basis. In fact, defense counsel conceded that, if the video recording were made without audio, it would have been admissible. 2020 IL App (3d) 190272 at ¶13 n.1.
Accepting defense counsel’s concession in conjunction with the fact that the video and audio components of the recording could be separated, the court barred only the audio recording as inadmissible evidence and allowed the video recording. Id.
If the courts are willing to allow both video recordings of conversations and testimonial evidence regarding the contents of that conversation, what options remain for criminal defense attorneys? The appellate court seems to hint at potential room for argument by noting that “Defendant made no argument that the video recording standing alone should be barred under any other basis.” Id. Further, even if a hypothetical argument fails and a video recording is deemed admissible (alongside testimonial evidence), a defense attorney is still left with the opportunity to attack the credibility of any testifying witness. Notwithstanding these remaining strategies, it is worth discussing what significant difference exists — if any — between (1) allowing video evidence of a conversation accompanied by testimonial evidence regarding the contents of that conversation and (2) allowing both video and simultaneous audio recordings of a conversation to be heard in court. While perhaps judges and attorneys may understand a significant difference in reliability of the evidence, the more interesting question is this: What would a jury make of such a distinction? The question requires an analysis of public policy considerations, which were addressed by the dissenting opinion in Davis.
Careful Considerations of Evidence
Disagreeing with the majority’s ruling, Justice Lytton wrote a dissenting opinion concerned primarily with public policy and the protection of individual privacy rights. Justice Lytton criticized the majority’s decision, writing that the decision
is contrary to the statute’s purposes of protecting the privacy of individuals. The unwarranted intrusion of an individual’s privacy can only be remedied by suppression of all evidence connected to an unlawful eavesdropping recording, including all portions of the recording and testimony regarding the contents of the recording. 2020 IL App (3d) 190272 at ¶31, citing State of Washington v. Williams, 94 Wash.2d 531, 617 P.2d 1012, 1019 (1980).
See also Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407, 416 (1963). As Justice Lytton understood the simultaneous recording of both audio and video from the same device, he opined: “In this case, the video portion of the recording was part of, not separate from, the illegal recording.” 2020 IL App (3d) 190272 at ¶30. In support of this finding, Justice Lytton pointed to numerous other jurisdictions that have previously held that “video and/or testimonial evidence must be suppressed where, as here, it is connected to an illegal recording.” 2020 IL App (3d) 190272 at ¶28.
While Justice Lytton disagreed with the court’s ruling on the admissibility of the video recording, he also disagreed with the court’s ruling on the confidential informant’s ability to testify as to the contents of the conversation the informant had with the defendant. As Justice Lytton wrote, “Independent, untainted sources of evidence include testimony from witnesses who acted voluntarily, free from coercion and not part of the illegal government activity.” 2020 IL App (3d) 190272 at ¶26. Operating under this understanding, Justice Lytton stated, “testimony from the [confidential informant] is not separate from the illegal recording because the informant was responsible for the illegal recording and would not have engaged in any conversation with defendant but for the presence of the recording equipment.” 2020 IL App (3d) 190272 at ¶30.
Importantly, a question may be posed about whether a jury would consider video evidence corroborated by verbal testimony as equally reliable and valuable as the video evidence on its own. Further, as discussed by Justice Lytton, serious questions about privacy rights are raised, as the majority opinion allows for video and testimonial evidence of conversations of unintended targets to come in as evidence in the criminal prosecution of those unintended targets.
The court’s opinion in Davis establishes new evidentiary precedence for criminal prosecutions, making it extremely important for prosecutors and criminal defense attorneys alike to familiarize themselves with the new rule. For prosecutors, the court’s decision seemingly grants more evidentiary firepower by broadening law enforcement’s capabilities in gathering evidence against potential defendants. Notwithstanding the outcome in Davis, criminal defense attorneys are also provided a hint by the court that at least the admissibility of video evidence may still be viably attacked by some argument other than the fact that the video evidence was recorded simultaneously with audio eavesdropping evidence. In accordance with these two understandings, it seems future decisions will test just how far — if at all — the evidentiary boundaries were actually stretched by Davis.
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