People v. Hardimon, 2017 IL App (3d) 120772 (May). Episode 378 (Duration 9:56)

Jury should not have seen that portion of the recorded interrogation where the police go at the defendant more aggressively.

Facts

This was a shooting right outside a club. The victim was shot and killed.

The jury found the defendant guilty of first degree murder and UPWF. The court sentenced the defendant to 80 years’ imprisonment for first degree murder and a consecutive term of 14 years for UPWF.

The Video

Eyewitnesses and surveillance video all lead to defendant’s arrest.

Defendant was interviewed and the interrogation was recorded.

The original recording was more than four hours in length, and the State redacted approximately three hours of the video where the defendant was not actively interviewed.

Defense counsel did not object to the introduction or playing of the redacted video.

What The Jury Saw

What Defendant Said

The defendant explained in the video that, on the night of the shooting, he went to Club Apollo with an individual he called “Unc,” whom Garner later identified as TC Driver.

Driver had died by the time of trial.

The defendant and Driver drove to Club Apollo in a black two-door Mitsubishi. The defendant explained that the Mitsubishi was owned by the defendant’s cousin.

At Club Apollo, the defendant and Driver sat at the bar, had a few drinks, played pool, and left after the bartenders announced the last call. The defendant was with Driver the whole night, and neither of them used the restroom during their time at Club Apollo. The defendant said that he did not get into any arguments while he was at the club and he did not own a firearm.

Around 3 a.m., the defendant was sitting in the Mitsubishi, which was parked facing Club Apollo, when he saw a group of men standing outside the club. The defendant heard gunshots, and he and Driver left the parking lot.

Later, Driver dropped the defendant off at his girlfriend’s house.

What the Police Said

Approximately 26 minutes into the interview, Garner and Moore confronted the defendant with allegations that the defendant had been involved in an earlier argument at Club Apollo.

At this point, the detectives’ tone changed from one of fact gathering to pressing the defendant to tell them what happened.

The detectives told the defendant that other evidence indicated that he had been involved in an earlier argument at Club Apollo and he left the club in a Mitsubishi that matched the description of the shooting suspect’s vehicle. Moore explained that the case would be presented either as one of self-defense or cold-blooded murder. Garner encouraged the defendant to tell the detectives what had happened and to explain if the shooting was an act of self-defense.

The defendant repeatedly denied any involvement in the shooting.

During the interview, the detectives said the defendant was hiding in his girlfriend’s basement when the police came to bring him to the station. Garner noted that the officers at the house were prepared to send a canine into the house to force the defendant out. The defendant replied that he voluntarily came out of the basement and an officer thanked him for his cooperation.

Approximately 37 minutes into the video, Garner indicated that the defendant should “man[ ] up to what happened.”

The defendant maintained that he had done nothing wrong and reconfirmed that he left Club Apollo and went directly to his vehicle. Moore explained that the police had a different version of events that implicated the defendant in the shooting and the detectives could seek a lesser charge if the defendant explained that he acted in self-defense.

The defendant said he had not spoken to Hartwell on the night of the incident.

Approximately five or six minutes later, Garner and the defendant went over the defendant’s version of events. The defendant maintained that he was sitting in the Mitsubishi when the shooting started, at which point the defendant left the scene. Moore insisted that the defendant had left information out, and Garner implied that the defendant was involved in the earlier argument in the men’s restroom.

Moore said the surveillance video showed the defendant leaving Club Apollo before 3 a.m. and returning in a black Mitsubishi, which backed into a parking spot.

At that point, Garner alleged that the video showed the defendant getting into a dispute with Hartwell, firing several shots, and calmly walking back to the Mitsubishi. Garner then told the defendant that the defendant “showed no remorse for what happened. It’s like I don’t care. I’m gonna handle my business.”

The defendant said that he did not commit the shooting, and Garner replied “yes, you did. You can sit there and say that all day, but the facts is [sic] the facts.”

Moore said that a show of remorse or responsibility would go “a long way in Peoria County.”

Moore commented that the State would take this case to trial because “it is easy” and this type of case provided good publicity for the State’s Attorney and leads to “100-year, triple digit sentences.”

As an example of the damage caused by not showing remorse, Moore told the defendant that he worked a prior case involving a drug deal that turned into a shooting and attempted murder prosecution. The detectives did not have video recorded evidence of the shooting, but the individuals involved in the drug deal identified the shooter. Moore told the instant defendant that the detectives

“don’t blow smoke up people’s ass. We tell it like it is. Okay? Just like we are doing to you.”

Moore then returned to his anecdote stating the detectives interviewed the shooter and laid out the evidence against him.

The shooter showed no remorse and was convicted and sentenced to 95 years’ imprisonment.

Moore emphasized that the lengthy sentence was imposed even though the victim survived the shooting.

Garner told the instant defendant that “now is the time to talk.”

The defendant reiterated that he had told the detectives everything he knew and the detectives were trying to force him to make a different statement. Garner responded that he was not trying to make the defendant say anything. Approximately 54 minutes into the video, Garner said the detectives knew the defendant committed the offense and he needed to tell the detectives why he fired the shots.

The defendant again denied committing the shooting, and the following exchange took place:

“[Moore:] We don’t get people in here, okay, just to belittle them. We get people in here to get to the bottom of shit. Okay? We don’t lie to people. Because, you know, say something happens. Okay. You get convicted. Next thing you know, Judge Mary McDade says, uh, you know what I think he’s served his time. You know? He is claiming in his appeal that he was scared to death of this dude. You know? When they see the picture of the guy, sure that’s believable. So the next thing you know it gets overturned. Alright? And, or they say he’s served enough time, we’re going to make it second degree murder because he was scared of this dude. He thought dude was going to come after him. So they cut you loose. Alright? That might be 10 years from now. Okay? Him and I are working another murder case. Say it’s one of your family members that gets murdered. Are you going to want to talk to us if we have been blowing smoke up your ass? No. That’s why we don’t do it. Because we need people to talk to us.

[Garner:] Our rep, our rep is always important to us.

[Moore:] We don’t lie to people. We just tell—this is the way it is. You know? The damage is done. Now is the time to just make the best of it. That’s all you can do. But, given the opportunity, which is what you are being given now, is to tell your side, there is a reason that shit happens, so that they know what is going, the State’s attorney’s office. Now is the time to do it. That is just the way it is.

[The defendant:] You all are questioning me. I told you what I know.”

Moore then explained that Driver was also “going down for murder, too” on an accountability theory.

The defendant asked if he was personally being charged with murder, and the detectives responded that the defendant was being charged with murder.

Garner again told the defendant that this was his opportunity to explain his side of the story.

Moore then told the defendant that they were taking the case to trial because the prosecution wanted to “show this shit off” and it makes for a good trial.

Moore implied the video recording would have the jurors on the edge of their seats looking at the defendant with disgust. Moore implied that the news media would use the word “execute” next to the defendant’s picture.

Moore repeatedly implied that the prosecution had a strong case against the defendant, as the video clearly established his guilt, and the detectives were providing a favor to the defendant by seeking his honest explanation.

The defendant again insisted that he had told the detectives what had happened.

Approximately one hour and 13 minutes into the interview, Moore told the defendant that the next time he may see his son will be when the defendant is “passing [his son] in [the Department of Corrections] in 20 years *** because his dad is all locked up.”

Two minutes before the end of the video, Moore told the defendant that he was going to jail for first degree murder.

The detectives then exited the interview room.

Shortly thereafter, Moore returned and questioned the defendant about the coat he was wearing on the night of the shooting. Moore explained that if the defendant gave the prosecution his current version of events, they would “bend [him] over.” The defendant responded “how many times do I gotta keep saying it man. I told you what happened, man.”

Moore then left the room, and the video ended.

Issue

The defendant asserts that during his confession the detectives’ repeated statements regarding their theory and strength of the case constituted irrelevant and prejudicial evidence.

Specifically, approximately 20 minutes of the video contained the defendant’s relevant admissions about his location at the time of the shooting. The remainder of the video consisted of prejudicial statements that

(1) described, in detail, a scenario where the defendant shot the victim because he was afraid;
(2) attacked the defendant’s character and credibility, which included the State’s potential use of the words “liar,” “cold-blooded killer,” and “execute,” at trial;
(3) served to bolster the testimonies of the officers and other prosecution witnesses;
(4) described the contents of the surveillance video, while inaccurately vouching for the clarity of the video;
(5) claimed the case would be easily prosecuted; and
(6) indicated the defendant hid in his girlfriend’s basement when the police came to arrest him, which indicated knowledge of guilt.

Opinion Testimony

Generally, statements made by an investigating officer during an interview with the suspected defendant are admissible if they are necessary to demonstrate the effect of the statement on the defendant or to explain the defendant’s response.

However, a police officer’s opinion statement regarding the ultimate question of fact possesses significant prejudice as the officer is a recognized authority figure.

Probative Value v. Prejudice

An officer’s testimony or statement during a video recorded interrogation is ultimately subject to relevancy requirements, as well as the familiar test weighing probative value versus prejudicial effect.

A statement should be excluded from evidence where its probative value is outweighed by its prejudicial effect.

Here, during the first one-third of the interview, the defendant and the detectives had a conversation about the defendant’s whereabouts and knowledge of the shooting at Club Apollo.

Around the 30-minute mark, the interview shifts from a conversational tone to accusations that the defendant committed the shooting.

During the remaining 50 minutes of the recording, the defendant adamantly denied the detectives’ accusations that he was involved in an argument at Club Apollo and was removed from the club. The defendant also consistently denied the detectives repeated assertions that the defendant returned to Club Apollo with a gun and shot Hartwell.

In spite of the defendant’s insistence, Garner and Moore goaded the defendant to confess to the offenses by suggesting that the defendant will receive more lenient treatment if he shows remorse and takes responsibility for the shooting. At several points during the interview, the detectives claimed that the evidence was so heavily weighed against the defendant that the prosecution would insist on taking the matter to a trial, where it would easily prevail, and the defendant would face a lengthy prison sentence.

The detectives told the defendant that the prosecution wanted to “show this shit off” and that the media would use the word “execute” next to the defendant’s picture.

The detectives further assured the defendant that they were not lying because they had a reputation to protect. Toward the end of the video, the detectives indicated that the defendant’s failure to implicate himself in the detectives’ version of events would prevent the defendant from seeing his son, at least until the defendant’s son also found himself in prison.

Moore also conclusively stated that the defendant was going to jail for first degree murder.

These and other comments from the interviewing officers served only to impermissibly bolster the State’s case and inflame the passions of the jury.

Because the defendant was adamant that he was not involved in the shooting and did not change his version of events throughout the interview, the final two-thirds of the interview had no probative value.

Rather, this portion of the video was highly prejudicial and, at times, removed the finding of guilt from the province of the jury as the detectives conclusively stated that the defendant was guilty of murder.

Therefore, we find that defense counsel’s performance was deficient for not filing a motion to further redact this portion of the video.

In coming to this conclusion, we acknowledge that during an interrogation, the police may use a variety of non coercive techniques, which include playing on a suspect’s ignorance, fears, and anxieties.

The instant detectives’ interrogation techniques are not at issue in this appeal.

Rather, the present issue concerns whether the interview, as shown to the jury, was relevant and not prejudicial.

Here, the statements in the final two-thirds of the interview were not relevant, as the defendant did not change his statement or admit to the offenses, and were more prejudicial than probative.

As a result, this portion of the video served only to paint the defendant as a “cold-blooded” murderer, bolster the State’s case, and disparage the defendant.

Only the first one-third of the recording was arguably relevant, as the defendant stated that he was outside Club Apollo at the time of the shooting. However, the trial evidence illustrated that numerous people were outside Club Apollo at the time of the shooting and the surveillance video does not clearly establish the shooter’s identity.

Moreover, the defendant’s presence in a vehicle outside Club Apollo at the time of the shooting does not establish any of the elements of the charged offense. Thus, the inclusion of the final two-thirds of the video prejudiced the outcome of the defendant’s trial.

Not A Strong Case

Our finding of prejudice is supported by the totality of the evidence, which failed to directly connect the defendant to the crime.

No witness identified the defendant as the shooter, the defendant never admitted to committing the charged offenses, and the physical evidence did not directly connect the defendant to the offense.

The maroon coat that the police found in the Mitsubishi placed the defendant in a vehicle at the scene; however, the defendant acknowledged during the interrogation that he wore a maroon coat to Club Apollo and he rode in the Mitsubishi. This evidence did not conclusively establish the defendant’s guilt, as the surveillance video showed that the shooting suspect was not wearing a coat.

Additionally, Lyle’s identification of the suspect’s vehicle did not establish the defendant’s guilt because Lyle’s observation is consistent with the defendant’s testimony that he was sitting in the black Mitsubishi in the parking lot at the time of the shooting and he left after he heard the gunshots.

Lyles’s description also was not independently corroborated and did not identify the defendant as the shooter.

The only witness identification regarded the defendant’s role in an earlier altercation in the restroom of Club Apollo.

Finally, the surveillance video does not provide a conclusive identification of the shooter or the allegation that the shooter got into a black Mitsubishi with license plate No. L101306. The surveillance video provides, at best, a general depiction of the scene outside Club Apollo at the time of the shooting. The poor video quality and darkness of the night make any defining features indiscernible.

Given this evidence, the defendant’s guilt could only be established via inferences from the circumstantial evidence.

Holding

While proof by inference and circumstantial evidence is sufficient to convict, in this case, the combination of the irrelevant and overly prejudicial portion of the video and the evidence has left us with little confidence in the verdict. The court, therefore, found that defense counsel was ineffective in failing to move to redact or otherwise exclude the final two-thirds of the video.