People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02)

It’s unclear if the video ever existed, regardless, it was not tendered to defense counsel, and it’s unclear what’s the best remedy.

Gist

Defendant was cited for DUI involving alcohol, DUI involving drugs, and various traffic offenses. Before trial, the state was ordered to provide defendant with a squad-car video of the traffic stop. It failed to do so, and defendant moved to bar evidence of the events captured by the video, as a sanction.

The trial court denied the motion.

What Happened To The Video?

The parties stipulated that the deputy would testify that he recorded the stop, the video was never uploaded to the system where videos were stored, he could not explain why it was not uploaded, and he was unsure if the recording was still “in the cloud.”

According to the deputy, the video equipment was not malfunctioning, but, when he checked the system where the videos were stored, he noticed that it was not there, so no video was ever uploaded. He thought the video entered the cloud, because he saw space for video on his computer free up after uploading, but that, since there were multiple videos, he could not say for sure whether the video from defendant’s stop was uploaded.

When he tried to download the video, he was unable to find defendant’s stop or any of the other stops that he had uploaded. The video either did not exist or was irretrievable.

The court sought to clarify by asking, “It was not sent to the [c]loud and unretrieved? It was actually not sent anywhere?”

The state responded that, because of a malfunction in the computer, the video was not sent to the cloud.

The court then stated that there was nothing to indicate that the video ever existed and was destroyed.

Motion For Sanctions

Defendant moved in limine for the following nonpattern jury instruction:

“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.”

The court denied the motion, noting that nothing showed that the State intentionally destroyed evidence. See People v. Danielly, 274 Ill. App. 3d 358, 367 (1995), and Arizona v. Youngblood, 488 U.S. 51 (1988) (officers failed to refrigerate clothing of a rape victim, later resulting in the inability to perform serological tests no denial of due process absent a showing of bad faith on the part of the police).

See Also Civil JI 5.01

Here a jury is told that it may infer that missing evidence that was within a party’s power to produce would have been adverse to that party.

Civil JI 5.01.

See also Illinois Discovery Law.

The DUI Case

At around 11 p.m., the deputy saw defendant make a wide right turn and cross over the centerline multiple times. Defendant was driving 59 miles per hour in a 45-mile-per-hour zone. Car pulled over. The squad car had an audiovisual system that automatically turned on at that time.

The deputy approached from the passenger side of the vehicle, observing that there was also a person in the passenger seat.

Defendant gave his driver’s license but could not locate his insurance card. The deputy observed that defendant’s movements were slow and lethargic. The deputy also smelled alcohol coming from the vehicle, and the odor got stronger when defendant spoke.

Defendant’s eyes were bloodshot and glassy.

He ran defendant’s plates and found that his license was expired.

When the deputy went to the driver’s side of the vehicle he saw defendant shove something under the rear seat and cover it with the floor mat. So he asked defendant to step out of the vehicle and asked him what he was hiding. Defendant said that it was alcohol, and the deputy’s partner retrieved an empty bottle of hard lemonade.

Failed The FSTs

Defendant failed the FSTs.

The deputy opined that defendant was under the influence of alcohol and narcotics.

The jury found defendant guilty of the DUI charge involving alcohol and two of the traffic offenses but acquitted him of the DUI charge involving drugs.

He was sentenced to five days in jail and 12 months’ probation.

Issue

Defendant first contends that the trial court abused its discretion when it refused his requested nonpattern instruction that the jury could infer that the contents of the missing video were against the State’s interest.

Analysis

Here, contrary to the portion of the requested instruction concerning “evidence whose content or quality are in issue,” defendant never suggested that the missing video would have shown something different from the circumstances the deputy described in his testimony.

Defendant’s theory of the case was not that the deputy misstated the observable facts. Instead, it was that those facts were insufficient to support a conclusion that defendant was impaired.

Holding

Accordingly, the court did not abuse its discretion in declining to give it.

The trial court did not abuse its discretion when it declined to instruct the jury that it could infer that the contents of the missing video recording were detrimental to the State.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

See Also

• People v. Kladis, 2011 IL 110920
• People v. Danielly, 274 Ill. App. 3d 358, 367 (1995)
• Arizona v. Youngblood, 488 U.S. 51 (1988) (Officers failed to refrigerate clothing of a rape victim, later resulting in the inability to perform serological tests no denial of due process absent a showing of bad faith on the part of the police.)
• People v. Aronson, 408 Ill. App. 3d 946 (2nd Dist. 2011) (Very similar to facts in this case where court denied sanctions but then ruled in favor of defendant at the SSS hearing in part because the FST’s were being challenged.)
• Episode 105 – People v. Moravec, 2015 IL App (1st) 133869 (November 2015) (Defendant wins sanctions to exclude all evidence after CPD ignores repeated requests for the POD video.)
• Episode 149 – People v. Moore, 2016 IL App (1st) 133814 (February) (Photo arrays were lost but without bad faith inappropriate to dismiss or exclude evidence; defense was given Civil JI 5.01.)
• Episode 122 – People v. Tsiamas,  2015 IL App (2d) 140859 (December) (Some remedy is appropriate when state failed to tender booking room video after proper notice which definitely existed at some point.)
• Episode 309 – People v. Acevedo, 017 App (3d) 150750 (March) (Cracked CD is tendered court declined to bar the officer’s testimony of the arrest, her observations, and the SFSTs as a sanction; instead imputing that the defendant had met his burden of proof regarding a prima facie case for rescission was the appropriate sanction.)
• Episode 077 – People v. Olson, 2015 IL App (2d) 140267 (June) (No sanctions or remedy when defendant is given a blank disk because there is no proof the recording ever existed.)
• Episode 517 – People v. Cunningham, 2018 IL App (1st) 153367 (June) (Police destroy a jacket inadvertently not in bad faith but dismissal is too strong a sanction; defendant didn’t ask for anything else.)