People v. Nunn

2014 IL App (3d) 120614Opinion 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
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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
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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
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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
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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”).
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¶ 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
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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
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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.
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¶ 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.
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¶ 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
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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
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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.
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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
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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."
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¶ 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.
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