                                  2014 IL App (3d) 120614

                          Opinion filed October 31, 2014
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                                     THIRD DISTRICT

                                         A.D., 2014

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of the 9th Judicial Circuit
                                       ) Knox County, Illinois
      Plaintiff-Appellee,              )
                                       )
                                       ) Appeal No. 3-12-0614
v.                                     ) Circuit No. 11-CF-204
                                       )
                                       )
MICHALA R. NUNN,                       ) Honorable
                                       ) Paul L. Mangieri
      Defendant-Appellant.             ) Judge, Presiding
______________________________________________________________________________

      JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
      Justice McDade concurred in the judgment and opinion.
      Justice Schmidt dissented, with opinion.
______________________________________________________________________________

                                         OPINION

¶1           Defendant Michala Nunn was convicted by a jury of aggravated battery of a peace

      officer and resisting arrest and sentenced on the battery charge to 2 years’ probation and

      14 days in the county jail. She appealed her conviction, arguing that she was denied a

      fair trial before an impartial jury and was denied due process when the police ordered the

      destruction of cell phone videos recording her arrest. We reverse and remand.

¶2                                         FACTS
¶3          In April 2012, defendant Michala Nunn was charged with four counts of

     aggravated battery (720 ILCS 5/12-4(b)(18) (West 2010) (renumbered 720 ILCS 5/12-

     3.05(d)(4) (West 2012) (eff. July 1, 2011)) and two counts of resisting arrest (720 ILCS

     5/31-1(a-7) (West 2010)). The charges stemmed from an incident at the Quick Sam’s

     convenience store in Galesburg that took place in May 2011. Police were called to the

     store to respond to a verbal altercation between Nunn, her ex-boyfriend and his girlfriend.

     Nunn was allegedly uncooperative with the officers and proceeded to kick at them. An

     officer arrested Nunn, handcuffed her and threw her to the ground, knocking out her two

     front teeth. Nunn spit blood, allegedly at the officers, and was eventually transported to

     the hospital by paramedics, where she was treated for her injuries.

¶4          Jury summonses were issued and voir dire commenced. The State presented the

     venire panels with three hypotheticals. The first hypothetical concerned speeding and the

     jury’s ability to follow the law even if the jurors disagreed with it.        The second

     hypothetical concerned the State’s burden to prove the defendant guilty beyond a

     reasonable doubt and involved scenarios where jurors would have to weigh evidence and

     assess witness credibility. The third hypothetical involved a wedding scenario and the

     jury’s responsibility to sort through differing evidence. The State presented the

     hypotheticals to each panel of venirepersons and alternates. Nunn objected at one point

     but the trial court overruled the objection.

¶5          A jury was empaneled, along with two alternate jurors.         A trial took place.

     Several Galesburg police officers who were at the arrest scene testified for the State,

     including Kyle Winbigler, Lee McCone, and Charles Bush. Allison Buccalo, a police

     dispatcher who was on a ride-along, also testified for the State. Winbigler, the arresting

     officer, noticed witnesses recording the police interaction with Nunn on their cell phones

                                              -2-
     and saw other officers try to take the phones. When the witnesses refused to turn over

     their phones, the officers told them to delete any recordings. Winbigler believed the

     police had authority to seize the phones but there was insufficient manpower on the scene

     to do so. McCone estimated there were “several” people at the scene but he did not see

     anyone recording or officers asking the crowd to delete any recordings. McCone stated it

     was okay for people to tape in public but he was unsure whether the officers could

     lawfully seize the phones. McCone also admitted that he “put” Nunn to the ground to

     restrain her.

¶6           Bush assisted in crowd control at the scene and saw McCone “take” Nunn to the

     ground. He estimated 100 to 200 people were watching Nunn’s arrest and some people

     were recording the encounter. The crowd was gathered 20 to 30 feet from the arrest area.

     He told the witnesses who were recording to delete the video or turn the phones over as

     evidence. Although he had the authority to seize the phones, no one volunteered to turn

     his or her phone over to him. He believed the witnesses had the right to record in public

     and that the recordings would have captured the events and been material to Nunn’s guilt.

     Bush was unable to obtain any contact information from the recording witnesses because

     he was trying to maintain order, which was his primary focus. He was more concerned

     with maintaining order than identifying witnesses. He could have made an attempt to

     identify people at a later time. There were five or six other officers present. Buccalo

     described the crowd as large and said it turned unruly, although some people were telling

     Nunn to “stop resisting.”

¶7           The State presented the rest of its witnesses and rested. Nunn moved to dismiss

     on the basis of the State’s destruction of the cell phone evidence, which she argued

     denied her due process. The trial court took the motion under advisement, determining

                                           -3-
       that it would rule at the end of the proceeding. Nunn also moved for a directed verdict,

       which the trial court denied. Nunn offered several witnesses, including Jacqueline Tate,

       Stephanie Ann Corbin, Kailyn Hogue, Candis Morrison, ShaVona Haymon, and David

       Taylor, who described that she was cooperative with the police and was thrown to the

       ground without apparent reason.

¶8              Tate testified she saw people were recording the arrest and heard police tell the

       witnesses to put their phones down or go to jail. Tate tried to record the arrest but the

       police told her that they would take her to jail if she did not put her phone away. She was

       able to record three officers standing around Nunn, who was on the ground with one

       officer’s knee in her back. Tate did not offer her recording to the police. At the time of

       trial, Tate’s phone was broken but she thought someone could “probably” get the video

       off of it.

¶9              Corbin testified that she saw Nunn slammed to the ground after barely moving her

       uncuffed arm. Corbin described that about 25 people were in the crowd and some of

       them were recording with their phones. She saw Tate’s phone “snatched” by an officer,

       who told Tate, “You can’t have that. You can’t record. That’s illegal.” She also heard

       the officers threaten the recording witnesses that they could go to jail. Hogue, Morrison,

       and Haymon similarly testified that the police told witnesses who were recording that

       they had to delete the recordings, leave the scene, or go to jail. Haymon was also told the

       police would tow her car and arrest her for obstructing justice.         Taylor, who was

       recording the arrest, said that an officer told him he could not record, took his phone, and

       deleted the recording. He later took still photographs but no longer owned the phone and

       did not have access to the photos. Both Tate and Taylor called 911 during Nunn’s arrest.

¶ 10            Following the State’s rebuttal witness, Nunn renewed her motion for a directed

                                               -4-
       verdict, which the trial court again denied. The jury returned guilty verdicts on the

       charge of aggravated battery against McCone and of resisting McCone. Nunn was found

       not guilty on the other charges. The cause proceeded to a hearing on Nunn’s motion to

       dismiss and for sentencing. The trial court found that the police did not act in bad faith in

       destroying and failing to preserve the cell phone recordings, and denied Nunn’s motion.

       The trial court sentenced Nunn to a 2-year term of probation and 14 days in the county

       jail with credit for 4 days already served, and the remaining 10 days stayed until June

       2014. She appealed.

¶ 11                                       ANALYSIS

¶ 12          On appeal, Nunn argues that she was denied a fair trial and due process. She

       challenges the State’s voir dire of potential jurors as improper indoctrination. She also

       argues that her due process rights were violated when the police destroyed the cell phone

       recordings.

¶ 13          The first issue we address is whether the trial court erred when it denied Nunn’s

       motion to dismiss for improper destruction of evidence. Nunn challenges the trial court’s

       denial of her motion to dismiss based on the State’s destruction of, and failure to collect

       and preserve, the cell phone videos witnesses took at the scene. She maintains that the

       officers at the scene acted in bad faith and their improper acts deprived her of the

       opportunity to obtain potentially exculpatory evidence, violating her due process rights.

       She further challenges her trial counsel’s failure to offer a missing evidence instruction,

       which she argues affected the outcome of the case.

¶ 14          The State contends that Nunn has forfeited this issue. We find she did not.

       During the trial, Nunn filed a motion to dismiss based on the failure of the police to

       collect and preserve the cell phone recordings, arguing a due process violation. The trial

                                               -5-
       court reserved ruling and the motion was argued postverdict and immediately prior to

       sentencing. Nunn did not raise the issue in a posttrial motion. Under this procedural

       posture, the constitutional-issue exception to the forfeiture rule applies. People v. Enoch,

       122 Ill. 2d 176, 190 (1988) (determining constitutional-issue exception to forfeiture rule

       applies where constitutional issues were raised in the trial court and may be raised in a

       postconviction petition); People v. Cregan, 2014 IL 113600, ¶ 20 (applied constitutional-

       issue exception to noncapital cases).

¶ 15          Criminal prosecutions are required to comport with prevailing notions of

       fundamental fairness, including the meaningful opportunity for criminal defendants to

       present a complete defense. California v. Trombetta, 467 U.S. 479, 485 (1984). A trial

       court has an inherent authority to dismiss charges where its failure to do so would result

       in a deprivation of a defendant’s due process rights. People v. Newberry, 166 Ill. 2d 310,

       314 (1995) (citing People v. Fassler, 153 Ill. 2d 49, 58 (1992)). We review a trial court’s

       denial of a motion to dismiss for an abuse of discretion. People v. Mattis, 367 Ill. App.

       3d 432, 435 (2006).

¶ 16          Law enforcement’s destruction of, or failure to preserve, “ ‘potentially useful

       evidence’ ” is not a due process violation where the defendant cannot demonstrate bad

       faith on the part of law enforcement. People v. Hobley, 159 Ill. 2d 272, 307 (1994)

       (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“unless a criminal defendant

       can show bad faith on the part of the police, failure to preserve potentially useful

       evidence does not constitute a denial of due process”)); Illinois v. Fisher, 540 U.S. 544,

       549 (2004) (“the substance destroyed here was, at best, ‘potentially useful’ evidence, and

       therefore Youngblood’s bad-faith requirement applies”).



                                               -6-
¶ 17             Proper considerations for the trial court when determining whether due process

       was violated include the degree of bad faith or negligence by the State in destroying or

       failing to preserve the evidence and the importance of the lost evidence compared to the

       evidence at trial. Hobley, 159 Ill. 2d at 307.        Bad faith “implies a furtive design,

       dishonesty or ill will.” People v. Danielly, 274 Ill. App. 3d 358, 364 (1995). Factors to

       consider when examining the State’s duty to preserve evidence include whether the State

       acted in good faith and per its normal practice and whether the evidence was significant

       in defendant’s defense and was such that comparable evidence could not be obtained by

       other reasonable and available means. Trombetta, 467 U.S. at 488-89.

¶ 18             The trial court found there was no bad faith on the part of the officers in deleting

       or ordering the deletion of the recordings, and in failing to seize the cell phones under the

       circumstances. We find that, to the contrary, the actions of the officers were in bad faith

       and “implied furtive design, dishonesty or ill will.” The witnesses were ordered to turn

       over their phones or delete the recordings, despite the officers’ belief the witnesses had a

       right to record the arrest and the officers had the right to seize the cell phones. Winbigler

       testified the police had insufficient manpower to collect the phones. Bush stated that he

       did not get the witnesses’ contact information because he was maintaining order.

       Accepting the officers’ claim that they could not seize the cell phones due to insufficient

       manpower, that justification does not warrant their demand that witnesses delete the

       videos.

¶ 19             Tate, Corbin, Hogue, Morrison and Haymon testified that the officers told them

       they would go to jail if they did not stop recording and erase the recordings. Corbin

       stated she heard an officer tell Tate it was illegal to record them and Taylor stated that an

       officer deleted his recording, telling him he could not record the arrest and it was

                                                 -7-
       unlawful to record the police. Only Bush testified that he ordered the witnesses to either

       delete the recordings or turn their phones over as evidence. Moreover, while several

       witnesses testified that the crowd dispersed on the officers’ directives, only two

       witnesses, Hague and Morrison, testified that they were ordered to leave on threat of

       arrest. Corbin also said that the crowd dispersed even though the police did not order

       people to leave. Haymon said she was told to move back or go to jail and that her car

       would be towed and she would be arrested for obstruction.

¶ 20          The officers’ need to maintain control of the crowd did not necessitate their order

       to stop recording and delete the videos or go to jail. Knowing the recordings to be

       potentially useful, the officers could have asked the witnesses to bring their phones to the

       station at a later time. Bush admitted that he could have tried to identify the witnesses

       after the incident. The most likely reason the officers would have for requiring the

       witnesses to destroy the videos were if the videos captured improper conduct by law

       enforcement. As Bush testified, the recordings would have been material to Nunn’s guilt

       as they would have captured Nunn’s alleged offenses. Significantly, the videos would

       also have captured the conduct of the police during the arrest. Although both parties

       presented eyewitnesses to Nunn’s arrest, the recordings would have portrayed the events

       as they occurred. No other evidence was comparable as the witness testimony was

       subject to each witness’s perspective. There was no testimony regarding the police

       department’s normal practice regarding the collection and preservation of evidence.

       However, it seems unlikely the normal practice would be to destroy admittedly relevant

       evidence.

¶ 21          The dissent concludes that Nunn failed to demonstrate the police acted in bad

       faith or that evidence was destroyed due to their actions. Infra ¶ 27. He claims that we

                                               -8-
       are reweighing the evidence and considering only the testimony of defense witnesses.

       Infra ¶ 28. There are two problems with the dissent’s claims. First, in reaching our

       disposition, we do not dispute the findings of the trial court regarding the trial testimony.

       The trial court expressly found: (1) Winbigler and Bush knew people were recording the

       arrest but it was unclear when and at what point the recordings occurred; (2) Winbigler

       and Bush were aware the witnesses had the right to record the arrest; (3) the witnesses

       were told by the police to turn over their phones or delete the recordings; (4) the police

       acted in response to the “exigent” circumstances and were trying to maintain crowd

       control without seizing the phones; and (5) there was no dispute the recordings were

       potentially or had the probability of being relevant. Our analysis incorporates these

       findings and we use them in supporting our disposition.

¶ 22          The majority analysis relies on the testimony of the police officers as much or

       more as it does the testimony of the defense witnesses. Winbigler saw other officers try

       to take the witnesses’ phones and heard the officers tell witnesses to stop recording and

       delete the recordings. Bush told the witnesses the same thing. The dissent rejects our

       assertion that the officers could have acted to preserve the evidence, asserting that we are

       foisting a “vast, and frankly unmanageable, burden of tracking down recordings of every

       incident” on police. Infra ¶ 34. We do not assign any such burden. Both Winbigler and

       Bush believed that the witnesses had the right to record the arrest. Bush testified the

       recordings would have been material to Nunn’s guilt or innocence. It seems reasonable

       and not an onerous burden for the officers here to have collected the cell phones from the

       witnesses who were recording or at the very least ask them to bring their phones to the

       police station later. Instead, the officers made an intentional decision to stop or destroy

       the collection of evidence.

                                               -9-
¶ 23          We find that the officers demonstrated bad faith in failing to preserve and in

       ordering the destruction of the recordings and that, as a result, Nunn was deprived of her

       due process right to a fair trial. Her motion to dismiss should have been granted and the

       trial court erred in denying it. Because our finding that Nunn’s due process rights to a

       fair trial were violated is dispositive, we do not address Nunn’s claims of ineffective

       assistance of counsel and jury indoctrination.

¶ 24          For the foregoing reasons, the order of the circuit court of Knox County denying

       Nunn’s motion to dismiss is reversed and her conviction is vacated.

¶ 25          Reversed and vacated.

¶ 26          JUSTICE SCHMIDT, dissenting.

¶ 27          The trial court did not err in denying defendant's motion to dismiss. There was

       conflicting witness testimony as to whether or not police deleted or forced bystanders to

       delete any video taken of the incident. Absent credible testimony that the officers

       actually engaged in such behavior, the majority's finding that the officers acted in bad

       faith is unsupported. I therefore dissent.

¶ 28          Generally, abuse of discretion is the appropriate standard for reviewing a trial

       court's ultimate ruling on a motion to dismiss. People v. Campos, 349 Ill. App. 3d 172,

       175 (2004). However, where neither the facts nor the credibility of the witnesses is at

       issue, the issue presents a purely legal question, and the standard of review is de novo.

       People v. Walker, 308 Ill. App. 3d 435, 438 (1999). As the facts and credibility of the

       witnesses are unquestionably at issue here, we review the trial court's decision for an

       abuse of discretion. I raise this issue only to point out that the majority reweighed the

       evidence, accepting all of the evidence in favor of defendant and rejecting the State's

       evidence.

                                               - 10 -
¶ 29          Case in point: two of defendant's witnesses testified that they might have videos

       or photographs on their phones, but their phones were either broken or gone. Tate

       testified that she attempted to record the arrest, but the police told her that they would

       take her to jail if she did not put her phone away. Tate testified she was able to record

       three officers standing around defendant, who at the time was on the ground with one of

       the officer's knee in her back. Tate stated she did not offer the recording to the police. At

       the time of trial, Tate testified that her phone was broken, but she thought someone could

       "probably" get the video from it.

¶ 30          Corbin, on the other hand, testified that she saw Tate's phone "snatched" by an

       officer who told Tate, "You can't have that. You can't record. That's illegal."

¶ 31          Despite Corbin's testimony that Tate's phone was "snatched," Tate never testified

       that the police took her phone, or that she deleted the video per the officers' request. Tate

       did not hand her phone over to the officers. In fact, Tate testified that she thought the

       video could probably be retrieved from her broken phone. Defendant obviously knew of

       Tate as she called Tate as a witness. One would think that if there was anything

       whatsoever exculpatory on Tate's phone, it would have been retrieved and used. The

       obvious implication here, as I suspect the jury surmised, is that there was nothing on

       Tate's phone to aid defendant's version of the facts.

¶ 32          Defendant's other witnesses, Hogue, Morrison, and Haymon, also testified that the

       police told witnesses who were recording that they had to delete the recordings, leave the

       scene, or go to jail. They notably did not testify that they witnessed police taking

       people's phones and deleting videos. David Taylor was the only witness to testify that an

       officer took his phone and deleted video. According to Taylor, he also took still

       photographs of the incident but, at the time of trial, no longer owned the phone and did

                                               - 11 -
       not have access to the photos. None of the officers on the scene testified to physically

       taking a bystander's phone. Taylor's version of events is uncorroborated by any other

       witness testimony. In short, the defense's witnesses raised some credibility issues.

¶ 33           Admittedly, had the officers seized a witness's phone and deleted the video, or

       had the witness deleted the video on the officer's instruction, the majority would be

       correct. As outlined by the witness testimony above, we are short of that mark by a long

       shot.

¶ 34           I also take issue with the majority's attempt to foist upon police the vast, and

       frankly unmanageable, burden of tracking down recordings of every incident in which

       they might be involved upon pain of being accused of depriving some defendant of due

       process. The majority opines, "[k]nowing the recordings to be potentially useful, the

       officers could have asked the witnesses to bring their phones to the station at a later time.

       Bush admitted that he could have tried to identify the witnesses after the incident." Supra

       ¶ 20.

¶ 35           First of all, the police could have done a lot of things. Not asking witnesses to

       bring their phones to the station at a later time does not constitute a denial of defendant's

       due process. The majority cites no case law for the proposition that the police have a

       duty to preserve evidence which they do not, and never did, possess. The United States

       Supreme Court has held to the contrary, finding that the police do not have "an

       undifferentiated and absolute duty to retain and to preserve all material that might be of

       conceivable evidentiary significance in a particular prosecution." Arizona v. Youngblood,

       488 U.S. 51, 58 (1988); see also People v. Newberry, 166 Ill. 2d 310, 315 (1995). It is

       unclear what the majority expected the police to do. Were the officers to seize every cell

       phone from every bystander present on the chance that one or two may have contained

                                               - 12 -
       some material evidence? Not only is that an unnecessary and inefficient use of police

       resources, it sets a dangerous precedent in an age where the technology to record or take

       pictures is readily available to everyone. Most likely, illegal, too.

¶ 36          Secondly, whether or not Bush could have tried to identify witnesses after the

       incident is irrelevant. Bush stated he was focused on crowd control, as many people were

       present and the crowd was becoming unruly. The majority also stated that "[a]lthough

       both parties presented eyewitnesses to Nunn's arrest, the recordings would have portrayed

       the events as they occurred." Supra ¶ 20. Well, of course they would, assuming any such

       recordings videotaped the event from beginning to end. Again, the majority assumes that

       such recordings existed and that they were helpful to defendant. The fact that defendant

       located and brought these witnesses into court is an even stronger suggestion that

       defendant knew exactly what was on those videos, at least those that existed, and made a

       strategic decision not to bring them to court.

¶ 37          Finally, unlike the majority, I cannot accept that "[t]he most likely reason the

       officers would have for requiring the witnesses to destroy the videos were if the videos

       captured improper conduct by law enforcement." Supra ¶ 20. I have no idea what the

       reasons were. One of them could have been a misunderstanding of the eavesdropping

       statute. Officer McCone's testimony demonstrated some uncertainty on whether he had

       the right to seize witnesses' phones as evidence. He stated that "that law has changed

       several times in the last year or so. I'm not exactly up to date on the exact law." Another

       is that I suspect that some police officers do not like being photographed or videotaped

       any more than movie stars, public figures, or even judges for that matter. I am not

       suggesting that it is proper for police to destroy evidence or order another to do so.



                                               - 13 -
       However, on the evidence presented in this case, the trial court was not bound to believe

       any evidence was destroyed by, or at the behest of, police.

¶ 38          To be clear, I do agree with the majority's statement that "[t]he officers' need to

       maintain control of the crowd did not necessitate their order to stop recording and delete

       the videos or go to jail." Supra ¶ 20. That is where my agreement with the majority

       begins and ends. The defendant failed to demonstrate that the police acted in bad faith,

       actually destroyed any evidence, or that anyone destroyed evidence upon police orders.

¶ 39          As I would affirm the trial court's denial of defendant's motion to dismiss, I will

       also briefly address the issues defendant raised regarding jury instructions and voir dire.

¶ 40          The defendant argues that she was denied her right to a fair trial by the improper

       indoctrination of prospective jurors during voir dire. Defendant concedes that she failed

       to raise the alleged violations during voir dire in a timely posttrial motion, but argues we

       should review this issue for plain error. However, prior to determining whether plain

       error occurred, we must first determine whether error occurred at all. People v. Sykes,

       2012 IL App (4th) 111110, ¶ 31 (citing People v. Lewis, 234 Ill. 2d 32, 43 (2009)).

       Based on my review of the record, no error occurred.

¶ 41          Illinois Supreme Court Rule 431(a) (eff. July 1, 2012) provides that voir dire

       questions "shall not directly or indirectly concern matters of law or instructions." The

       hypotheticals posed by the State did not concern matters of law or instructions. Rather,

       they were designed to determine whether the potential jurors were able to distinguish

       quantity versus quality of evidence, and whether they would be able to convict based on

       circumstantial evidence. This is permissible under People v. Rinehart, 2012 IL 111719, ¶

       16 (holding that broad questions are generally permissible; for example, the State may



                                              - 14 -
       ask potential jurors whether they would be disinclined to convict a defendant based on

       circumstantial evidence).

¶ 42          Those cases cited by defendant, People v. Boston, 383 Ill. App. 3d 352 (2008),

       People v. Bell, 152 Ill. App. 3d 1007 (1987), and People v. Mapp, 283 Ill. App. 3d 979

       (1996), are all distinguishable from the case at bar. Specifically, the prosecutor in those

       cases made references to actual factual details of the case and essentially asked the jury to

       prejudge those facts.

¶ 43          There was no error, and thus no plain error. Defendant has forfeited this issue.

¶ 44          Finally, defendant contends that her counsel was ineffective when he failed to

       request that the jury be given a missing evidence instruction. Defendant argues that such

       a missing evidence instruction was approved in People v. Danielly, 274 Ill. App. 3d 358,

       368 (1995). In Danielly, the police returned to the victim of a sexual assault the ripped

       undergarments she was wearing on the night of the incident. Id. at 361. Defendant

       argued that the police's return of those items, and the victim's subsequent destruction of

       them, violated his due process rights to have access to evidence. Id. at 362-63. While the

       court rejected defendant's due process argument, it did note that a missing evidence

       instruction would be appropriate on remand. Id. at 368. That instruction stated:

                               " 'If you find that the State has allowed to be

                  destroyed or lost any evidence whose content or quality are

                  in issue, you may infer that the true fact is against the State's

                  interest.' " Id.

¶ 45          Defendant argues that in this case, "counsel should have requested such an

       instruction given the police-ordered destruction of the bystanders' video recordings."



                                               - 15 -
¶ 46           Distinct from Danielly, and what the defendant and the majority ignore, is that the

       police never possessed any evidence. It is axiomatic that a missing evidence instruction

       is inappropriate if there was never any evidence to begin with. As for defendant's

       argument that the videos were ordered to be destroyed, no witnesses testified that they

       destroyed any of their recordings at the officers' behest. The only witness who testified

       that the police took his phone and physically deleted the recording is Taylor. The still

       photographs Taylor allegedly captured were not produced because Taylor testified he no

       longer had the phone. Well, had any video Taylor claims police deleted not been deleted,

       he would not have that either. Taylor could not recall whether or not he was high that

       evening, and no officer admitted to taking any witness's phone. Nonetheless, the

       majority accepts Taylor's testimony as fact. Even accepting Taylor's testimony as fact,

       we know that he did not have the phone at the time of trial. Had a video helpful to

       defendant been on the phone, it would, like the photographs, have been unavailable as

       evidence at trial.

¶ 47           In short, counsel was not ineffective for failing to request a missing evidence

       instruction absent credible evidence that the police prevented defendant from producing

       helpful evidence.




                                              - 16 -
