                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Harper, 2013 IL App (4th) 130146




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    LAFAYETTE L. HARPER, Defendant-Appellee.



District & No.             Fourth District
                           Docket No. 4-13-0146


Filed                      December 18, 2013
Rehearing denied           January 16, 2014


Held                       The trial court’s order suppressing, pursuant to section 103-2.1 of the
(Note: This syllabus       Code of Criminal Procedure, both a DVD recording of defendant’s
constitutes no part of     statement to the police during a custodial interrogation and the transcript
the opinion of the court   of the recording was reversed, notwithstanding the fact that 30 minutes
but has been prepared      of the recording were not audible, since the State overcame the
by the Reporter of         presumption of admissibility by establishing that the statements were
Decisions for the          admissible by a preponderance of the evidence, especially when the
convenience of the         recording malfunction was accidental, not nefarious, and the trial court
reader.)
                           found that the police officers had done nothing untoward in this case.


Decision Under             Appeal from the Circuit Court of Vermilion County, No. 10-CF-647; the
Review                     Hon. Claudia S. Anderson, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Randall Brinegar, State’s Attorney, of Danville (Patrick Delfino, Robert
Appeal                     J. Biderman, and Anastacia R. Brooks, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.

                           Michael J. Pelletier, Karen Munoz and Nancy L. Vincent, all of State
                           Appellate Defender’s Office, of Springfield, for appellee.


Panel                      JUSTICE POPE delivered the judgment of the court, with opinion.
                           Presiding Justice Appleton and Justice Turner concurred in the judgment
                           and opinion.




                                              OPINION

¶1          On remand from this court’s opinion in People v. Harper, 2012 IL App (4th) 110880,
        969 N.E.2d 573, the trial court issued a written order, suppressing statements defendant made
        during his custodial interrogation. The State appeals, arguing the court erred in suppressing
        this evidence pursuant to section 103-2.1 of the Code of Criminal Procedure of 1963 (Code)
        (725 ILCS 5/103-2.1 (West 2008)). We reverse the trial court’s suppression order and
        remand for further proceedings, holding the court erred in finding defendant’s statements
        were not reliable.

¶2                                        I. BACKGROUND
¶3          As this court discussed the circumstances leading to the prior appeal in detail in the first
        opinion in this case (Harper, 2012 IL App (4th) 110880, ¶¶ 4-14, 969 N.E.2d 573), we need
        not repeat them here. This court reversed the trial court’s ruling suppressing the digital video
        disc (DVD) recording and the transcript of the DVD recording, finding the court “(1) erred
        in interpreting section 103-2.1 of the Code *** and (2) made insufficient findings to
        determine whether defendant’s custodial statements are inadmissible pursuant to section 103-
        2.1 of the Code.” Id. ¶ 2, 969 N.E.2d 573. This court remanded the case, directing the trial
        court to determine (1) whether the electronic recording is substantially accurate, and, if not,
        (2) “whether the State established by a preponderance of the evidence defendant’s statement
        is dependable and fit to be relied upon based on the totality of circumstances in this case.”
        (Emphasis in original.) Id. ¶ 36, 969 N.E.2d 573.
¶4          According to this court’s opinion:
                “The trial court erred in this case by focusing its attention on the language
            ‘intentionally altered’ in subsection (b)(2) (725 ILCS 5/103-2.1(b)(2) (West 2008)). The
            record in this case contains no evidence anyone altered the electronic recording. Even

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         though the trial court positively remarked on the integrity of both police officers and
         found no evidence the officers did anything untoward or deliberately altered the
         electronic recording, the court nevertheless focused on the language concerning
         intentional alterations to the electronic recording. ***
             ***
             Instead of focusing on the ‘intentional alteration’ language, the trial court should have
         examined whether the lack of audio in certain parts of the electronic recording made the
         recording substantially inaccurate. [(Emphasis added.)] As to this factor, the intent of
         the police officers is not relevant. However, the court never specifically found the
         electronic recording [(emphasis added)] was not ‘substantially accurate.’ Even if the
         court made a finding the electronic recording was substantially inaccurate, it still needed
         to determine whether the State proved ‘by a preponderance of the evidence [defendant’s]
         statement was voluntarily given and is reliable, based on the totality of the
         circumstances.’ (Emphasis added.) ***
             ***
             The trial court clearly found the electronic recording [(emphasis in original)]
         unreliable as a whole, even though it contains 78 minutes of apparently accurate video
         and audio recording. However, determining whether the statement [(emphasis in
         original)] is reliable is a completely different question that went unanswered by the court
         despite both the State and defendant making arguments regarding the reliability of the
         statement. Having found defendant’s statement voluntary, the trial court needed to
         determine whether defendant’s voluntary statement was also reliable under the totality
         of the circumstances. *** In determining reliability, the trial court can consider such
         things as the age and mental capacity of the defendant, the presence or absence of
         coercion, the length of the interrogation, whether the defendant had been deprived of
         sleep or food and water or use of a bathroom, whether the defendant–if an addict–was
         in the throes of withdrawal, and any other factor that may affect the reliability of the
         statement.” Id. ¶¶ 30-34, 969 N.E.2d 573.
¶5       On remand, the trial court allowed the parties to file written briefs on the issue. On
     December 24, 2012, defendant filed a motion to suppress his statements pursuant to section
     103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)). Defendant argued his entire
     statement should be suppressed because the inaudible section of the electronic recording
     violated section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)). Defendant
     recognized, however, no Illinois court had decided whether a partially inaudible video
     recording of a custodial interrogation violates section 103-2.1.
¶6       The State argued the trial court should find the recording was substantially accurate. In
     the alternative, the State argued it had “overcome the presumption of inadmissibility by
     proving by a preponderance of the evidence the defendant’s statement was voluntary and
     reliable.”
¶7       On February 1, 2013, the trial court issued a written order. Although the order is
     somewhat confusing, the trial court found the “electronic recording” of defendant’s custodial
     interview was “substantially inaccurate.” The court still found defendant’s statements were

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       voluntarily provided. However, the court found the State failed to meet its burden of
       establishing by a preponderance of the evidence defendant’s statements were reliable.
¶8         This appeal followed.

¶9                                           II. ANALYSIS
¶ 10       As stated in the first decision in this case, a reviewing court applies a bifurcated standard
       of review when reviewing a court’s decision to suppress evidence. Harper, 2012 IL App
       (4th) 110880, ¶ 22, 969 N.E.2d 573. We review a trial court’s factual findings using a
       manifest-weight-of-the-evidence standard but apply a de novo standard of review to the
       ultimate question of whether the evidence should be suppressed. People v. Bonutti, 212 Ill.
       2d 182, 188, 817 N.E.2d 489, 492 (2004).
¶ 11       On remand, the trial court issued a 2 1/2-page order on the issue of whether section 103-
       2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)) barred defendant’s statements made
       during the interrogation at issue in this appeal. The parties are not in complete agreement as
       to the meaning and effect of the trial court’s order. However, neither the State nor defendant
       sought clarification from the trial court. As stated earlier, the order is somewhat confusing
       but, nevertheless, contains a finding the State failed to prove defendant’s statements were
       reliable.
¶ 12       At issue in this appeal is whether section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West
       2008)) bars the State from introducing defendant’s statements because part of the recording
       of the statements is without audio. Section 103-2.1 states in pertinent part:
               “(b) An oral, written, or sign language statement of an accused made as a result of a
           custodial interrogation at a police station or other place of detention shall be presumed
           to be inadmissible as evidence against the accused in any criminal proceeding brought
           under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 1961 or
           under clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code unless:
                    (1) an electronic recording is made of the custodial interrogation; and
                    (2) the recording is substantially accurate and not intentionally altered.
                                                   ***
               (f) The presumption of inadmissibility of a statement made by a suspect at a custodial
           interrogation at a police station or other place of detention may be overcome by a
           preponderance of the evidence that the statement was voluntarily given and is reliable,
           based on the totality of the circumstances.” 725 ILCS 5/103-2.1 (West 2008).
¶ 13       We start with the basic principles governing the admissibility of a defendant’s custodial
       statements to police officers. Pursuant to Illinois Rule of Evidence 801(d)(2) (eff. Jan. 1,
       2011), a defendant’s out-of-court statements generally are not covered by the rules against
       hearsay and thus are admissible at his trial. However, if a defendant is in custody, he must
       be given his Miranda warnings before the police may question him. Miranda v. Arizona, 384
       U.S. 436, 444 (1966). If a defendant receives his Miranda warnings and chooses to speak
       with police officers, his statements are admissible as evidence against him so long as such
       statements are voluntarily given. People v. Harris, 2012 IL App (1st) 100678, ¶ 52, 977

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       N.E.2d 811 (citing Miranda, 384 U.S. at 478). Such statements are put before the trier of fact
       by testimony of witnesses, often police officers, who heard defendant’s statements.
¶ 14       Until 2005, law enforcement officers were not required to record a defendant’s custodial
       statements in any type of case. Section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West
       2008)) was enacted following the Report of the Governor’s Commission on Capital
       Punishment (Report). Harris, 2012 IL App (1st) 100678, ¶ 51, 977 N.E.2d 811. The Report
       recommended mandatory recording of custodial interrogations of murder suspects to
       strengthen confidence in the outcome of capital cases. Id. (citing Report, ch. 2, at 19-20 (Apr.
       2002)). As the First District noted in Harris, the clear intent of the legislature was to ensure
       statements related to murder investigations were not the result of coercive tactics in a police
       facility but instead were voluntary and reliable. Id.
¶ 15       Under section 103-2.1, an oral, written, or sign language statement of an accused made
       during a custodial interrogation at a police station is presumptively inadmissible in a murder
       prosecution unless it was electronically recorded and the recording is substantially accurate
       and not intentionally altered. 725 ILCS 5/103-2.1(b) (West 2008). Here, we have a defendant
       who was a suspect in a murder case, in custody at a police station, interrogated by police with
       video recording capability. In these circumstances, it is clear defendant’s interview was
       required to be electronically recorded. The police officers in this case recorded defendant’s
       interview. However, due to an unintentional equipment malfunction, approximately 30
       minutes of the recording where the officers are questioning defendant is missing audio. As
       a result, the trial court found the recording was not substantially accurate pursuant to section
       103-2.1(b)(2) of the Code (725 ILCS 5/103-2.1(b)(2) (West 2008)) and, therefore,
       presumptively inadmissible.
¶ 16       Section 103-2.1(e) (725 ILCS 5/103-2.1(e) (West 2008)) includes nine specifically
       enumerated exceptions to the statute. None of those exceptions apply here. That subsection
       also makes clear the bar to admissibility does not apply to the use of such unrecorded
       statements strictly for impeachment purposes. 725 ILCS 5/103-2.1(e) (West 2008).
¶ 17       While none of the exceptions found in subsection (e) apply to the situation in this case,
       section 103-2.1(f) of the Code (725 ILCS 5/103-2.1(f) (West 2008)) allows the State to
       overcome the presumption of inadmissibility if the State can establish by a preponderance
       of the evidence the statement was voluntarily given and is reliable based on the totality of the
       circumstances. Harris, 2012 IL App (1st) 100678, ¶ 59, 977 N.E.2d 811. As this court noted
       in the first appeal, subsection (f) clearly demonstrates the General Assembly did not want to
       bar statements that were inadvertently not recorded or not recorded in part due to a
       malfunction of the recording equipment. Harper, 2012 IL App (4th) 110880, ¶ 29, 969
       N.E.2d 573. Thus, if the State can show by a preponderance of the evidence a defendant’s
       statements were voluntary and reliable, those statements are admissible–even if there is no
       recording at all. Harris, 2012 IL App (1st) 100678, ¶ 52, 977 N.E.2d 811 (“the statute
       declares that voluntary and reliable statements can be admitted even if they are not
       videotaped”).
¶ 18       Whether the statements were voluntarily made and whether the statements are reliable
       are two separate questions for the trial court to answer. Id. ¶ 66, 977 N.E.2d 811. The trial


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       court must determine whether the defendant’s statements are voluntary and reliable, not
       whether the recording of the interview is reliable and not whether a police summary of
       defendant’s statements in a report is reliable (as the State initially argued in the trial court).
¶ 19       If the record shows defendant’s statements were voluntary and reliable, section 103-2.1
       does not preclude the officers, who heard defendant’s statements, from testifying about those
       statements, despite the malfunction of the recording equipment. Everyone agrees defendant
       voluntarily made the statements in question. The recording shows defendant was given his
       Miranda warnings and no compulsion or inducement was used to compel defendant to
       answer the officers’ questions. It also shows defendant waived his Miranda rights and agreed
       to talk to the officers. Voluntariness is not an issue here. Further, the trial court found the
       recording malfunction was accidental, not nefarious, and remarked positively on the integrity
       of both of the officers conducting defendant’s interview.
¶ 20       However, the court found the State failed to prove defendant’s statements were reliable.
       The Code does not provide a definition for “reliable.” However, as stated in the prior
       opinion:
           “Merriam-Webster’s Collegiate Dictionary 1051 (11th ed. 2003) defines ‘reliable’ as
           ‘suitable or fit to be relied on: DEPENDABLE.’ In determining reliability, the trial court
           can consider such things as the age and mental capacity of the defendant, the presence
           or absence of coercion, the length of the interrogation, whether the defendant had been
           deprived of sleep or food and water or use of a bathroom, whether the defendant–if an
           addict–was in the throes of withdrawal, and any other factor that may affect the reliability
           of the statement.” Harper, 2012 IL App (4th) 110880, ¶ 34, 969 N.E.2d 573.
       There is some overlap of the factors to be considered when determining voluntariness and
       reliability. Our supreme court has stated:
           “The test for voluntariness is ‘whether the defendant made the statement freely,
           voluntarily, and without compulsion or inducement of any sort, or whether the
           defendant’s will was overcome at the time he or she confessed.’ People v. Gilliam, 172
           Ill. 2d 484, 500[, 670 N.E.2d 606, 613] (1996). In making this determination, we
           consider the totality of the circumstances surrounding the statement, including: (1) the
           defendant’s age, intelligence, education, experience, and physical condition at the time
           of the detention and interrogation; (2) the duration of the interrogation; (3) the presence
           of Miranda warnings; (4) the presence of any physical or mental abuse; and (5) the
           legality and duration of the detention.” People v. Slater, 228 Ill. 2d 137, 160, 886 N.E.2d
           986, 1000 (2008).
¶ 21       While the trial court found defendant’s statements were voluntary, it found the State did
       not prove by a preponderance of the evidence the statements were reliable. We give the trial
       court’s factual findings on the issues of reliability and credibility great deference. As stated
       earlier, those findings will be reversed only if they are against the manifest weight of the
       evidence. However, based on the record in this case, the court’s reliability finding is against
       the manifest weight of the evidence.
¶ 22       As we have stated, voluntariness and reliability are two separate issues. A person who
       is developmentally disabled or a person who is actively delusional may give a statement of

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       his or her own free will, but the voluntary statement may not be reliable because of the
       mental impediments suffered by the individual. Further, the statements of a person deprived
       of food, water, or sleep also may not be reliable because that person may be inclined to say
       anything in order to have those deprivations terminated. Hypnosis-induced statements have
       also been found unreliable. See People v. Zayas, 131 Ill. 2d 284, 295, 546 N.E.2d 513, 518
       (1989) (“we find that because its reliability is suspect, and it is not amenable to verification
       due to the fact that even the experts cannot agree upon its effectiveness as a memory-
       restorative device, a witness’ hypnotically induced testimony, other than that of the
       defendant, is not admissible in Illinois courts”).
¶ 23       In this case, the recording, which was viewed by the trial court and by this court, is the
       strongest evidence defendant’s statements during his interview, both in the portion of the
       recording with sound and the portion without, are reliable. The recording at issue has video
       of defendant throughout the entire interview. The deficiency in this recording is the absence
       of sound for approximately 30 minutes of the interview.
¶ 24       As a result, this case is distinguishable from the First District’s recent decision in Harris
       where the State contended a completely unrecorded statement by the defendant in that case
       was admissible because the defendant provided voluntary and reliable statements in later
       recorded interviews. Harris, 2012 IL App (1st) 100678, ¶¶ 46, 62, 977 N.E.2d 811.
       According to the State, the defendant’s voluntary and reliable statements in the later recorded
       interviews established her statements in the earlier unrecorded interview were also voluntary
       and reliable. Id. ¶ 62, 977 N.E.2d 811. Finding no stipulation to the voluntariness or
       reliability of the defendant’s earlier statement and finding the trial court did not fully address
       this issue, the First District remanded the case and directed the trial court to consider the
       voluntariness and reliability of defendant’s earlier statement, noting the reliability of a
       defendant’s statement is a separate inquiry from the determination whether the statement was
       voluntary. Id. ¶¶ 64-66, 977 N.E.2d 811.
¶ 25       We note the trial court here found defendant’s statements were voluntary, the police
       officers were persons of high integrity, and the lack of audio on a portion of the recording
       resulted from an innocent malfunction of the recording equipment. Based on the record
       before this court, we agree defendant voluntarily made the statements. Further, nothing in the
       record shows the trial court’s findings with regard to the officers’ integrity or the recording
       equipment is against the manifest weight of the evidence.
¶ 26       This case does not involve an interview that was not recorded at all. The trial court was
       able to see, although not hear, the entire interview. We have also viewed the videotape. The
       video recording is quite telling as to defendant’s state of mind and how he was treated by the
       officers.
¶ 27       The record in this case contains ample evidence to show defendant’s statements were
       both voluntary and reliable. Unlike in Harris, the officers in this case recorded the initial
       interview. In Harris, the initial interrogation was not recorded at all. Id. ¶ 46, 977 N.E.2d
       811. Further, in Harris, the State did not present evidence concerning the voluntariness or
       reliability of defendant’s initial statement made after hours of interrogation. Id. ¶ 64, 977
       N.E.2d 811. For example, in Harris, the State presented neither evidence of the defendant’s


                                                  -7-
       physical or mental state at the time of her initial interview nor testimony about whether the
       defendant was given food and water or allowed to use the restroom. Id. Further, it was
       unclear whether the defendant was provided proper Miranda warnings and knowingly and
       intelligently waived her Miranda rights. Id.
¶ 28       In the case before this court, while defendant was clearly confined to the interview room,
       he was not handcuffed or restrained from movement in any other manner. He was allowed
       to smoke in the interview room, and it appears he was allowed to keep a pack of chewing
       gum or mints, of which he partook during the interview. Defendant was also allowed to use
       the restroom and was given a cup of water.
¶ 29       The police officers provided defendant with his Miranda warnings on the recording, and
       defendant waived his rights on the recording. The recording clearly shows defendant was not
       physically abused in any manner, nor were any other coercive tactics applied to defendant.
       From the video, defendant appears to be an adult of at least average intelligence. He also
       appears to be sober and not under the influence of any drugs. Further, the interview did not
       take place after a late-night arrest on the street. The police officers approached defendant at
       10 a.m., while he was in class at the Concept College of Cosmetology. In addition, no
       questionable memory enhancement techniques such as hypnosis, which might render a
       suspect’s statements unreliable, were used on defendant. Finally, the officers, whom the trial
       court found to be of high integrity, do not claim defendant made any inculpatory statements
       during the interview. In fact, defendant was released after the interview.
¶ 30       The recording of the interview and the testimony of the police officers establish by a
       preponderance of the evidence defendant’s statements during the interview were both
       voluntary and reliable for purposes of section 103-2.1(f) of the Code (725 ILCS 5/103-2.1(f)
       (West 2008)). Defendant offers nothing to rebut the evidence his statements were voluntary
       and reliable. Defendant does not contend he was mentally ill, lacked average intelligence, or
       was under the influence of any substance that could affect the reliability of his statements.
       The trial court’s finding the State failed to meet its burden as to the reliability of defendant’s
       statements during the interview is against the manifest weight of the evidence in this case.
¶ 31       Accordingly, we find the trial court erred in suppressing defendant’s statements pursuant
       to section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)) because the State
       overcame the presumption of inadmissibility pursuant to subsection (f), establishing by a
       preponderance of the evidence defendant’s statements were both voluntary and reliable. 725
       ILCS 5/103-2.1(f) (West 2008). As a result, section 103-2.1 does not bar the State’s use of
       the video recording or statements defendant made during the interview.
¶ 32       This is not the type of situation the General Assembly had in mind when it passed section
       103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)). As this court stated, “the General
       Assembly clearly did not want an inadvertent failure to record an interview or an error in the
       recording process to establish an automatic and absolute bar to the State’s use of a
       defendant’s statements during a custodial interrogation.” Harper, 2012 IL App (4th) 110880,
       ¶ 29, 969 N.E.2d 573. The trial court clearly found the malfunction of the recording was
       accidental, not nefarious. Further, the court found the police officers were officers of high
       integrity and did nothing untoward in this case.


                                                  -8-
¶ 33       Putting section 103-2.1 aside, whether the recording itself or portions thereof are
       admissible is a separate question from the admissibility of defendant’s statements. Under
       general evidentiary principles, the trial court can exercise its discretion within the law in
       ruling on objections made by the parties to the recording itself. See People v. Hunt, 234 Ill.
       2d 49, 66, 914 N.E.2d 477, 486 (2009); People v. Manning, 182 Ill. 2d 193, 212, 695 N.E.2d
       423, 431 (1998); People v. Dougherty, 160 Ill. App. 3d 870, 876, 513 N.E.2d 2d 946, 950
       (1987); People v. Crenshaw, 2011 IL App (4th) 090908, ¶ 21, 959 N.E.2d 703. However,
       section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)) does not prevent admission
       of defendant’s statements or the partial recording thereof.

¶ 34                                    III. CONCLUSION
¶ 35        We reverse the trial court’s decision suppressing defendant’s statements pursuant to
       section 103-2.1 of the Code (725 ILCS 5/103-2.1 (West 2008)) and remand this case to the
       trial court for further proceedings.

¶ 36      Reversed and remanded.




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