People v. Cavitt, 2019 IL App (2d) 170149 (July). Episode 690 (Duration 20:28)
Second District sort sees the Third Districts point on playing video in the courtroom, but there was other problems with the way this judge did it.
Charges & Sentence
After a jury trial in which he proceeded pro se, defendant was convicted of possession with intent to deliver over 900 grams of cocaine (720 ILCS 570/401(a)(2)(D)), aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4), (f)(1)), and aggravated fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1(a)(2)).
He was sentenced to consecutive prison terms of 30 years, 3 years, and 1 year, respectively.
police officers from Carpentersville and from other law enforcement agencies arranged for an undercover drug operation—specifically, a reverse-buy bust—wherein officers posed as drug dealers, selling one kilogram of cocaine for $29,000 to defendant and his codefendant.
The operation went down at a McDonald’s parking lot.
Defendant was not the target but drove the target to the location. When the codefendnat was arrested the police attempted to arrest defendant. But he backed the car up into an unmarked police van. He struck an officer and this caused numerous officers to shoot into the defendant’s car.
Defendant Was Shot
He was struck in the face with a bullet but still managed to drive away.
A chase ensued and he was eventually arrested.
There Was A Video
The 16-minute surveillance video from McDonalds shows
- Defendant and the codefendant arriving in the Cadillac.
- It also shows defendant retrieving the plastic bag from the trunk,
- Codefendant returning to the Cadillac from the restaurant and retrieving the bag,
- The blue minivan arriving and stopping behind the Cadillac,
- Officers surrounding the Cadillac, and
- Defendant backing up toward the blue minivan and
- Then fleeing forward over the embankment.
The center of the lens is blocked by ice or snow, and, as related at trial, the images are choppy. By all accounts it was horrible, very low quality video.
Will The Jury Get The Video?
After closing arguments, during the conference concerning the admission of the exhibits, defendant asked that the jury be given the surveillance video.
The prosecutor commented that the State was not asking for the video to go back to the jury, “based on my previous experience of judges sending videos back. They need to have equipment to play it, make sure they can’t look at anything else.”
The trial court denied defendant’s request, stating, “I am not going to send back the video at this point.” Further,
What The Judge Said About The Video
COURT: If they ask for the video, then I am going to arrange something for them to do. In any event, I am not sending them back. If they ask to see the video, within my discretion, I will make my final decision then, but probably what I am going to do is have them come back in the courtroom and look at it again—
COURT: —because I want—you’d have to send equipment back there. Can’t control how many times they look at it. They could control it. They could look at it a thousand times. I think that’s unfairly highlighting certain evidence, so I am not going to send any videos back. If I get a question or request, then we will deal with it at that time. So over—I am going to deny defendant’s request to send videos back.
Of Course Jury Wanted The Video
During deliberations, the jury sent a note to the court, asking for the full surveillance video on a computer.
They Got The Video But…
Before the State and defendant, the court stated:
COURT: We thought this may happen. The part that bothers me, of course, is the full video aspect of it. I am not going to let them take the laptop back there. We are going to play it once in the courtroom.
1) The trial court decided that the 16-minute video would be shown to the jury.
2)It also proposed that the video could not be stopped and
3) That there would be no questions.
The State and defendant had no objection. The trial court decided that the video would be played on a television stationed by the jury box.
More On What The Judge Said
With the jury back in the courtroom, the court stated,
“I am going to play the video for you. We are going to look at it in the courtroom here. I am going to play the video…Now, the process by which we are going to do this is no questions can being asked. No lawyers are going to talk to you. Nobody is going to talk to you but me and we are going to run through that 16 minute video, People’s 23, one time. I don’t know if you retained all of your notebooks and everything because you can take notes if you wish to do that.
We will run that through one time. I am not going to run through it again. We can’t answer any questions you may have based on that video. You have to look at it yourself and draw whatever determinations or whatever information you can from that. Let me explain a little bit, just so you understand, and the reason I am doing it this way is because in my experience, if you send the video back there, that it could be viewed a thousand times.
Now, there is no other evidence that you are going to view a thousand times, just that evidence. That’s—there is no other evidence you are going to view twice like you are the video in this matter or this particular video. I don’t think it’s fair to the parties to overemphasize one piece of evidence over any other piece of evidence. That’s how this thing gets played out.
If you asked me if could bring some other witnesses and put them back on the stand, see, we couldn’t do that. We can’t do—you can’t be given that more than one—more than the time that they are allowed to you, so we will do it once. I understand that it’s significant. I find it’s fair. We can do it one time. It’s not fair for any lawyers to say anything or the defendant to say anything. We are just going to view it in silence. When we are done, we will send you back to the jury room to further your deliberations.”
Again The Judge Made Clear
During the post trial motion the judge said again:
The jury returned guilty verdicts on all counts: possession with intent to deliver over 900 grams of cocaine; attempted first-degree murder of Stankowitz (720 ILCS 5/8-4(a), 9-1(a)(1); aggravated battery to three officers; and aggravated fleeing or attempting to elude a peace officer.
The trial court sentenced defendant to 30 years’ imprisonment for possession of cocaine with intent to deliver; 3 years’ imprisonment for aggravated battery to a peace officer; and 1 year imprisonment for aggravated fleeing or attempting to elude a peace officer.
It further found that consecutive sentences were necessary to protect the public and thus ordered that the three prison terms be served consecutively.
Issue: Defendant’s Argument
Defendant argues that the trial court committed reversible error when, in response to the jury’s request to view the surveillance video, the court allowed only a single, silent viewing in open court and expressly discouraged the jury’s reliance on the video.
Defendant argues that the trial court’s response to the jury’s request to view the video during deliberations was erroneous in three ways:
(1) it violated the privacy of deliberations by requiring that the jury be silent while viewing the video in open court in the presence of the judge, the parties, counsel, court personnel, and spectators;
(2) it limited the jury to a single viewing; and
(3) it invaded the jury’s role as fact finder by admonishing the jury that repeated viewings of the video would improperly emphasize that exhibit over other evidence in the case.
He urges that the court’s actions deprived him of a fair trial and that this court should reverse his convictions and remand for a new trial.
The presence of third parties, defendant asserts, significantly disrupted the deliberations, and the silence imposed on the jurors exerted a chilling effect because they could not discuss the video while it played. Further, the court’s exclusive control of the video deprived the jurors of the opportunity to pause or replay key parts of it as they deliberated.
Thus, restricting the jury to one silent viewing in open court was error.
Judge Himself Relied On Multiple And Repeated Viewings of The Video
Defendant asserts that the fallacy of the trial court’s restrictions and admonishments was made plain after trial, when the court itself relied on its own repeated viewings of the video to overturn the jury’s verdict on the most serious counts—attempted first-degree murder.
In defendant’s view, the video was key evidence used by both the State and the defense to support their theories of the case.
The court itself found it useful to view both versions of the video and to view them multiple times. Had the jury been able to view the video multiple times, defendant contends, it might have acquitted him of attempted murder and other counts.
In addressing its analysis of the attempted-murder charges, the court commented:
“The video itself is choppy when viewing this particular situation. I viewed it several times, both videos, to get a very good—to try to see what information I could glean from the admitted videos; and, again, the time lapse on the trial counter was not accurate as to the time, so that was not helpful. And, again, the video is somewhat choppy. I did see an officer there. I did see, I think it was, an officer, a person move a step or so backwards from the car before the car went down the embankment.”
The court’s restriction was, thus, improper and prejudicial.
Jury Deliberations Shall Remain Private & Secret
“It is a basic principle of our justice system that jury deliberations shall remain private and secret. The primary purpose of this honored rule is to protect the jurors from improper influence. Although the presence of a third party impinges on the privacy and secrecy of deliberations, reversal is not warranted if no harm resulted from the intrusion.” People v. Johnson, 2015 IL App (3d) 130610, ¶ 17; see United States v. Olano, 507 U.S. 725, 737-41 (1993) (mere presence, but not participation, of alternate jurors during jury deliberations warrants reversal only if the defendant suffers prejudice as a result of the intrusion; but “there may be cases where an intrusion should be presumed prejudicial”).
The “Problem” With Giving The Video To The Jury
In the context of replaying videotaped testimony, it has been noted that doing so might lead the jury to overemphasize that testimony. 75B Am. Jur. 2d Trial § 1390 (2019). Thus, courts have held that videotaped testimony should be replayed in open court, under the trial court’s supervision, and with the defendant and counsel present.
The Poor Video Quality Made It Necessary For The Jury To Have Unencumbered Access
Defendant also argues that, unlike in McKinley and Johnson, where the courts determined that the juries’ uninhibited review of the video evidence would not have been helpful to the defendants (because the videos were consistent with the State’s witnesses’ testimony), the same cannot be said here.
According to defendant, the video in this case was of poor quality and necessitated the jury’s close, unimpeded view. The video depicted many things happening, but the view was obstructed by snow or ice and the video had no sound.
Also, defendant notes that the events depicted formed the basis of a number of discrete charges: an alleged drug transaction, defendant’s driving away from the scene, the attempted murder of one officer, and the battery of three other officers.
In contrast to the videos at issue in the case law, he argues, the video here required that the jury be able to control its playback and discuss the events while they unfolded on the video. That the jury could discuss the video in the jury room afterward was no substitute for being able to deliberate openly and freely while watching the video.
Only The Jury Can Decide How Much Weight To Give The Evidence
Defendant’s third and final claim of error is that the trial court erred in admonishing the jury about how much weight to give to the video, specifically stating that the jury should not “over-emphasize” that exhibit over other evidence.
Defendant asserts that the court’s comments violated the jury’s exclusive right to decide how much weight to give the evidence. People v. Collins, 106 Ill. 2d 237, 261-62 (1985) (determinations of credibility and weight to give to the testimony of witnesses are exclusively within the province of the trier of fact).
The jury was entitled, he notes, to give the video whatever weight or emphasis that it determined was merited. The jury alone, he urges, was entitled to decide the significance of the video when reaching its verdict. The court’s comments here, given its great influence over the jury, likely diminished the value of the video in the jurors’ minds.
The video was critical evidence to both sides at trial, and it related to each of the counts.
It depicted part of the alleged narcotics transaction and showed defendant’s departure from the scene, which was the basis of the charges of attempted first degree murder, aggravated battery, and aggravated fleeing. Also, unlike in McKinley and Johnson, the video was of poor quality and the lens was partly obstructed.
In order to reach decisions on the various charges, the jury had to consider the actions of multiple people and vehicles that were moving at the same time. Also, unlike in the case law, the video did not unequivocally support the testimony of the State’s witnesses. He points to the fact that the video does not show officer’s placing their hands on the hood of the Cadillac, as he had stated in his testimony, or the Cadillac striking the blue minivan or the injured officer.
The most telling indication of prejudice is that the court expressly relied on the video when overturning part of the jury’s verdict, finding that defendant lacked the requisite specific intent to kill the officer. Had the jury been permitted to have the video in the jury room, defendant asserts, it might have acquitted him on this count and other charges.
Judge Committed Error Here
We conclude that there was error in the trial court’s limiting the jury’s access to the video during deliberations. Given the qualitative limitations of the video in this case, we conclude that the court abused its discretion in limiting access to the video.
It is troubling that, in assessing the jury’s request for the video, the court ignored the video’s poor quality and the limitations it presented. As confirmed by the court’s posttrial comments and our own viewing of the video, it is difficult to ascertain the events depicted. Thus, the only reasonable approach would have been to allow unrestricted access.
We conclude that the trial court’s comments violated the jury’s exclusive right to decide how much weight to give the video.
“The right to a trial by jury is a fundamental right guaranteed by our federal and state constitutions.” See, e.g., People v. Bracey, 213 Ill. 2d 265, 269 (2004). It was highly improper for the court to comment or opine on how much emphasis the jury should place on the video and to note that it was “significant,” because the comments interfered with the jury’s exclusive fact finding role.
Furthermore, it was the jury’s prerogative to look at the video as many times as it wished.
There Was Prejudice Here
We agree with defendant that prejudice was shown here, where the jury convicted defendant of attempted murder, convictions that the trial court, upon further multiple viewings of both versions of the video, reversed for lack of sufficient evidence.
The video was, thus, clearly critical evidence.
Final Comments About The Third District
Finally, we wish to comment on Hollahan.
That opinion reflects the Third District’s evolution on the issue of courtroom video replays. Although we take no position on its holding, we believe that Hollahan makes a compelling case that courtroom replays in the presence of third parties are, in themselves, inherently prejudicial and inhibit the jury’s deliberations.
Although the case before us presents additional circumstances that warrant finding error, we acknowledge that the issues that Hollahan raises―such as the recurrence of technical issues, the distinction between a live trial (where all parties are present) and jury deliberations (which are limited only to jurors), and the jury’s lack of control over the replay (which, the Hollahan court compellingly argues, inherently inhibits deliberations)―warrant further consideration of the mode and manner in which a jury is given access to evidence in this state.
We need not decide whether all courtroom replays in the presence of third parties are inherently prejudicial, because, again, this case presents unique and egregious circumstances.
Was This Structural Error?
An error is generally considered structural when it renders a criminal trial fundamentally unfair or unreliable in determining guilt or innocence. People v. Glasper, 234 Ill. 2d 173, 196 (2009). The United States Supreme Court has found structural error in a limited class of cases, including those involving complete denial of counsel, denial of self-representation at trial, trial before a biased judge, denial of a public trial, racial discrimination in the selection of a grand jury, and a defective reasonable-doubt instruction. People v. Thompson, 238 Ill. 2d 598, 609 (2010) (citing Washington v. Recuenco, 548 U.S. 212, 218 n.2 (2006)).
Our supreme court has noted that plain error is not restricted to the types of structural errors recognized by the Supreme Court. It has held that the failure to apply the one-act, one-crime rule and the failure to exercise discretion in denying a request for a continuance constituted second-prong plain error. See People v. Clark, 2016 IL 118845, ¶ 25 (citing cases).
Having concluded that error occurred here, we further hold that there was second-prong plain error.
The failure to allow for proper jury deliberations, and the resulting prejudice, was clearly serious, undermined the fairness of defendant’s trial, and challenged the integrity of the judicial process.
Under the unique facts of this case, the mode and manner in which the video was replayed, coupled with the trial court’s comments touching upon the weight to be given the evidence, intruded upon the jury’s review and evaluation of key evidence and the error was so egregious as to constitute second-prong plain error.
The judgment of the circuit court of Kane County is reversed and the cause is remanded for a new trial.
See also Episode 689 – People v. Ryder, 2019 IL App (5th) 160027 (July); People v. Parker 2019 IL App (3d) 170108 (July); People v. Pacheco, 2019 IL App (3d) 150880 (July). (this episode has all the relevant links to the other cases.)