Opinion
1-19-2207
11-09-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. XAVIER JOHNSON, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 19 CR 6009, The Honorable Charles P. Burns, Judge Presiding.
LAVIN JUSTICE delivered the judgment of the court. Justices Howse and Cobbs concurred in the judgment.
ORDER
LAVIN JUSTICE.
¶ 1 Held: Any error in refusing to give the jury an instruction regarding the officers' failure to activate their body cameras was harmless. In addition, defendant has not shown that the trial court should have granted his motion to quash arrest and suppress evidence.
¶ 2 Following a jury trial, defendant Xavier Johnson was found guilty of possessing heroin and cocaine. The trial court imposed concurrent 18-month prison terms. On appeal, defendant asserts that the trial court erroneously refused to give the jury a non-Illinois Pattern Jury Instruction based on the Law Enforcement Officer-Worn Body Camera Act (the Act) (50 ILCS 706/10-30 (West 2018)). Defendant also contends that the court erred by denying his motion to quash arrest and suppress evidence. We affirm the court's judgment.
¶ 3 I. Background
¶ 4 At trial, Sergeant Jeffrey Rumbaugh testified that at about 7:30 p.m. on March 9, 2019, he was driving an unmarked vehicle at the intersection of 41st Street and Prairie when he saw a Chevrolet Monte Carlo, about three car lengths ahead, traveling westbound on 41st Street. The Chevrolet approached the stop sign and turned left onto Prairie without stopping.
¶ 5 Sergeant Rumbaugh activated his car's lights and accelerated until he was immediately behind the Chevrolet, but the Chevrolet did not pull over. Instead, it continued southbound on Prairie to 42nd Street. Inside the Chevrolet, the driver was moving his shoulders up and down and moved toward the front passenger seat. When the Chevrolet turned right onto 42nd street, the police car drove around it. Officer Celvin Najarro, Sergeant Rumbaugh's partner, pointed to the driver and told him to pull over. The Chevrolet continued to travel but pulled over at about "20th West on 42nd Street."
¶ 6 The officers, who were dressed in civilian clothing and Chicago Police Department vests, exited their car and approached the Chevrolet. Sergeant Rumbaugh ordered defendant, sitting in the driver's seat, to exit the vehicle. Based on Sergeant Rumbaugh's experience, defendant's movements and his failure to immediately pull over led the sergeant to believe that defendant may have been trying to conceal a weapon.
¶ 7 After defendant exited his car, Sergeant Rumbaugh handcuffed him and moved him to the back of his vehicle for a protective pat-down search while Officer Najarro searched the vehicle. Defendant was wearing a shirt, sweatshirt, jacket, two pairs of pants, underpants, socks and shoes. Sergeant Rumbaugh searched defendant's outer garments to the best of his ability on the street but did not search his inner garments.
¶ 8 During the pat-down, Sergeant Rumbaugh did not feel anything around defendant's waist area but felt a hard object in defendant's front left pocket. The object proved to be a red straw with white powder residue and the sergeant suspected that the powder was heroin, which was commonly ingested through straws. According to Sergeant Rumbaugh, the white powder fell out at some point and was not tested. The sergeant also observed a gray or white residue on defendant's jacket, which the sergeant believed to be heroin or cocaine. He then placed defendant under arrest, expecting to search him again at the police station. Because the officers' vehicle did not have a cage, a transport car took defendant to the station. While Sergeant Rumbaugh was at the scene, four other officers arrived.
¶ 9 Sergeant Rumbaugh testified that he was wearing a body camera that day and explained that when an officer presses the record button, the camera would backlog the prior 30 seconds of visual footage, but no sound for that period. The sergeant's body camera footage was then admitted into evidence and published for the jury. Among other things, the footage showed defendant stating that he did not know the officers were trying to pull him over.
¶ 10 At the police station, Sergeant Rumbaugh took defendant to the processing room. Policy dictated that an arrestee could only wear one layer of clothing and defendant chose to keep his jeans, rather than the jogging pants underneath. When defendant removed the jogging pants, Sergeant Rumbaugh saw a baggy sticking out of defendant's underwear flap and removed it. The sergeant recovered three separate bags containing crack cocaine, white heroin and brown heroin.
¶ 11 According to Sergeant Rumbaugh, he did not use his body camera to record what occurred in the processing room "[b]ecause we typically don't expect to recover items, it's just not something we turn on when in the station." He also testified that filming arrestees while they removed clothing presented a privacy issue. He acknowledged, however, that it was department policy to turn on his body camera when searching people or seizing evidence from someone he has arrested.
¶ 12 Officer Najarro's testimony substantially corroborated what occurred prior to defendant stopping the Chevrolet. He added that the officers turned on their sirens shortly after activating the lights and that they parked at an angle in front of defendant's car. Once the Chevrolet stopped, Sergeant Rumbaugh opened defendant's door and detained him. Meanwhile, Officer Najarro searched the area of the Chevrolet that was immediately accessible to defendant because the officers had observed him moving around in the vehicle instead of stopping for them. Inside the Chevrolet, the officer found a Mountain Dew can containing a small, green tinted Ziploc bag, consistent with narcotics packaging, and additional empty plastic bags. When Officer Najarro asked defendant if heroin was in the pop can, he said he had already snorted it. Officer Najarro's body camera footage, played for the jury, reflected that statement. The officers did not inventory the pop can, however, because they believed the liquid inside it contaminated the evidence. Having discovered narcotics packaging, Officer Najarro then searched the entire vehicle for weapons or narcotics. Sergeant Rumbaugh and Officer Clay also searched the vehicle, but no weapons or additional controlled substances were recovered. Officer Najarro further testified that Sergeant Rumbaugh had not informed him that contents fell out of the straw he recovered.
¶ 13 Officer Najarro further testified that he did not press record on his body camera in the processing room of the police station. The officer also acknowledged, however, that he was required to turn on his camera when engaged in a law enforcement-related activity. While Officer Najarro was doing paperwork, Sergeant Rumbaugh watched defendant change his pants and saw a baggy sticking out of is underpants. The sergeant handed Officer Najarro a clear knotted bag, which contained 13 white rock-like substances of suspect crack cocaine, three brown chunky substances of suspect heroin, and three small, tinted bags containing white powder or suspect heroin. In addition, those green-tinted bags matched those recovered from the Chevrolet. The parties then stipulated that the items recovered at the police station contained 1.3 grams of cocaine, and 2.9 grams of heroin.
¶ 14 After the State rested, defendant argued his motion to quash arrest and suppress evidence. According to defendant, it was improbable that the officers were able to see him make an incomplete stop in the dark from some distance away. Because the stop was illegal, so were the subsequent searches and arrest. In contrast, the State argued that the officers properly performed a traffic stop and protective pat-down, which revealed sufficient evidence to take defendant into custody.
¶ 15 The trial court denied defendant's motion, finding that both officers credibly testified that defendant did not stop at the stop sign. Additionally defendant continued to drive after emergency equipment was activated. While it was possible that defendant did not know the officers had turned on their lights, a reasonable officer would take defendant's failure to stop and furtive movements into account when determining that he may have contraband or a weapon. Handcuffing defendant did not alone turn the stop into an arrest. Although the officers recovered no weapon, the straw was indicative of the misdemeanor offense of possession of drug paraphernalia and entirely changed the situation. Furthermore, the search of the car revealed several empty bags as well as the Mountain Dew can containing a bag. Moreover, powder, which could have been a controlled substance, was seen on defendant's clothing. Consequently, the officers properly arrested defendant and performed a custodial search at the police station.
¶ 16 During the jury instruction conference, defendant moved for an instruction requiring the jury to weigh the officers' failure to activate their body cameras at the police station should the jury find that this failure was intentional. Although no Illinois Pattern Jury Instruction (IPI) existed, defendant argued that section 10-30 of the Act mandated that a non-IPI instruction be given. Defendant essentially argued that the officers improperly turned off their body cameras in the processing room despite knowing that defendant would be further searched and that policy mandated they press record. Defendant's theory was that Sergeant Rumbaugh, having recovered no controlled substances at the scene, lied about recovering drugs from defendant at the police station. Defendant argued that body camera footage would have reflected as much had the officers' cameras been activated.
¶ 17 In response, the State argued that section 10-30 did not apply because there was no evidence from which a jury could find the officers intentionally failed to activate their cameras. Additionally, the officers acted reasonably in not doing so.
¶ 18 The trial court declined to give the jury a non-IPI instruction. While defendant's position was "definitely fair game for argument," the court did not believe the officers intentionally failed to activate their cameras or that a negative inference instruction was appropriate. Rather, a non-IPI instruction regarding the officers' intent in not activating their cameras would give the matter undue weight.
¶ 19 Before the jury, the State argued in closing that defendant failed to stop at a stop sign, did not pull over when officers activated their lights and only stopped when the officers pulled up next to him. The officers observed defendant's suspicious movements as he tried to hide heroin and cocaine in his crotch. Additionally, the body camera footage showed Sergeant Rumbaugh finding the straw and seeing residue on defendant's jacket. Moreover, defendant acknowledged in that footage that he had already snorted the contents of the pop can. Ultimately, Sergeant Rumbaugh found controlled substances in defendant's underwear.
¶ 20 Defense counsel argued that the officers could not have seen defendant fail to stop at a stop sign, did not know why he was moving in his car and did not know if defendant was aware they were trying to pull him over. Additionally, the heroin supposedly fell out of the straw and the powder on defendant's shirt was not tested. Furthermore, Officer Najarro did not see Sergeant Rumbaugh recover the drugs, and the body cameras did not record that. Defense counsel essentially argued that Sergeant Rumbaugh had fabricated his account.
¶ 21 During deliberations, the jury sent out a note:
"We are confused, because we see many procedural errors. And the errors are creating doubt in our minds, and *** we don't know whether that doubt constitutes reasonable doubt, which would prevent us from unanimously deciding a -- on a guilty verdict. We are right now, 10 guilty, 2 not guilty."
Defense counsel argued once more that the jury should have been given one of the non-IPI instructions previously submitted. Ultimately, the court instructed the jury to continue deliberating. The jury subsequently found defendant guilty of possession of heroin and cocaine.
¶ 22 At a subsequent hearing, the trial court denied defendant's motion to reconsider the denial of his motion to quash arrest and suppress evidence, reiterating the court's finding that the officers credibly testified that defendant failed to stop at a stop sign, a traffic violation justifying a traffic stop. Given defendant's failure to stop and his movements in the car, it was appropriate to handcuff him for the officers' safety. The residue found on defendant's person and the drug paraphernalia further rendered the officers' actions appropriate. Additionally, the court denied defendants motion to set aside the verdict or order a new trial, again rejecting his contention that the jury should have received an instruction on the officers' failure to activate their body cameras. The trial court subsequently sentenced defendant to 18 months in prison.
¶ 23 II. Analysis
¶ 24 On appeal, defendant first challenges the trial court's decision not to instruct the jury regarding the officers' failure to activate their body cameras.
¶ 25 Jury instructions convey the applicable legal principles to the jury so that, having made factual determinations, the jury may arrive at a correct conclusion. People v. Nere, 2018 IL 122566, ¶ 29. Additionally, a defendant is generally entitled to an instruction regarding his defense where there record contains "some evidence" to support it. See People v. McDonald, 2016 IL 118882, ¶ 25. Moreover, the trial court must not weigh the evidence when deciding whether an instruction is warranted. Id. The question is whether there is some evidence, not whether there is some credible evidence. People v. Trice, 2017 IL App (4th) 150429, ¶ 29.
¶ 26 Generally, jurors receive the relevant IPI instructions. Id. If those do not contain a subject on which the court determines the jurors should be instructed, the court may give a non-IPI instruction, so long as it is brief, simple, impartial and free from argument. People v. Buck, 361 Ill.App.3d 923, 942 (2005). Yet, a trial court does not abuse its discretion by refusing to give a non-IPI instruction where the essence of the refused instruction is addressed by other instructions. Trice, 2017 IL App (4th) 150429, ¶ 41. Additionally courts have a general obligation to avoid giving jurors instructions that unduly emphasize one part of the evidence. People v. Blackwood, 2019 IL App (3d) 160161, ¶ 21.
¶ 27 We review whether the trial court properly refused to give an instruction for an abuse of discretion. Nere, 2018 IL 122566, ¶ 29. We review de novo, however, whether a particular instruction was accurate. Id.
¶ 28 Enacted in 2016, the Law Enforcement Officer-Worn Body Camera Act is intended to further the integrity of our criminal justice system and "provide impartial evidence and documentation to settle disputes and allegations of officer misconduct." 50 ILCS 706/10-5 (West 2018). With limited exceptions, the Act requires officers to turn on their cameras when "engaged in any law enforcement-related encounter or activity, that occurs while the officer is on duty." 50 ILCS 706/10-20 (West 2018). Additionally, "[l]aw enforcement-related encounters or activities" include, but are not limited to, traffic stops, *** arrests, searches, interrogations, investigations, *** or any other instance in which the officer is enforcing the laws of the municipality, county, or State." 50 ILCS 706/10-10 (West 2018). In contrast, law enforcement-related activities do not include instances where an officer is completing paperwork either alone or solely in the presence of another officer. 50 ILCS 706/10-10 (West 2018).
¶ 29 Pertinent to the dispute before us, section 10-30 states as follows:
"The recordings may be used as evidence in any administrative, judicial, legislative, or disciplinary proceeding. If a court or other finder of fact finds by a preponderance of the evidence that a recording was intentionally not captured, destroyed, altered, or intermittently captured in violation of this Act, then the court or other finder of fact shall consider or be instructed to consider that violation in weighing the evidence, unless the State provides a reasonable justification." (Emphases added.) 50 ILCS 706/10-30 (West 2018).
No publish decisions have addressed or interpreted this statute. Notwithstanding the general disfavor of instructions emphasizing one piece of evidence, the statute calls for just that: an instruction emphasizing an officer's intentional failure to record the encounter absent a reasonable justification.
¶ 30 Citing the Act, defense counsel submitted non-IPI instructions expressly addressing the officers' failure to press record at the station. On appeal, defendant focuses on two of the submitted instructions.
"You have heard testimony that Sergeant Jeffrey Rumbaugh was wearing a body-worn camera but did not turn it on during a search of the defendant. If you find that the officer intentionally did not capture a recording of this encounter, then you should consider that fact when determining what weight to give Sergeant Jeffrey Rumbaugh's testimony." The second instruction was identical but substituted Officer Najarro for Sergeant Rumbaugh.
¶ 31 The trial court denied defendant's motion to submit the tendered instructions. The court stated:
"I don't believe this is a situation where it's necessary to give a Jury instruction with regard to this. I think it's definitely fair game for argument, and I will allow the defense to argue the fact that they might not have complied with their own general orders or statute. But I don't believe that a negative inference is appropriate here. There's no indication to me, that this was intentional. *** I do not feel that the Jury should give it --get instruction on that. I think it gives undue weight to this unnecessarily so." (Emphasis added.)
¶ 32 Defendant argues that the statute calls for the finder of fact, in this case the jury, to determine by a preponderance of the evidence whether the officers intentionally did not capture a recording of the custodial search, but the trial court improperly made that determination itself. Regardless of whether the trial court or the jury was supposed to determine whether defendant showed the officers intentionally failed to record that search, we find a recent unpublished decision of this court shows why the aforementioned instructions should not have been submitted to the jury.
¶ 33 In People v. Tompkins, 2021 IL App (1st) 190693-U, the defendant similarly requested that the jury be instructed pursuant to section 10-30 as follows:
"You have heard testimony that Officer Martinez was wearing a body-worn camera but did not turn it on prior to or during his encounter with the defendant. If you find that the officer intentionally did not capture a recording of this encounter, then you should consider that fact when determining the weight to give to Officer Martinez's testimony." Id. ¶¶ 22-23.
The trial court found it was "somewhat confusing" as to whether the court or the jury is to make the initial finding by the preponderance of the evidence but declined to give the jury the defendant's instruction. The court found that the State provided a reasonable justification for the officer's failure to activate his body camera. Id. ¶ 23.
¶ 34 Although the trial court had found defense counsel's proposed instruction tracked the statute's language, the reviewing court disagreed. Id. ¶¶ 23, 29. Specifically, the proposed instruction omitted the following statutory language: "unless the State provides a reasonable justification." Id. ¶ 30. Because the proposed instruction was incomplete, the court found no abuse of discretion. Id.
¶ 35 The court further found that other instructions to the jury required it to consider the witnesses' credibility in light of all of the evidence, which included the officer's failure to activate his camera, and that defense counsel homed in on this failure in closing argument. Id. ¶¶ 31, 34-35. In light of such considerations and the overwhelming circumstantial evidence in the case, the court determined that any error was harmless. Id. ¶¶ 34-35.
¶ 36 Similar to the proposed non-IPI instruction at issue in Tompkins, defendant's aforementioned non-IPI instructions did not contain the requisite qualifying statutory language: "unless the State provides a reasonable justification." 50 ILCS 706/10-30 (West 2018). Accordingly, the trial court did not abuse its discretion in declining to give those instructions to the jury, notwithstanding that the court's reasoning differed somewhat from our own.
¶ 37 We would be remiss not to acknowledge that defendant had submitted a third instruction that does contain such statutory language:
"If you, the jury, find by a preponderance of the evidence, that an officer body worn camera recording was intentionally not captured, destroyed, altered, or intermittently captured, then you shall consider that in weighing the evidence, unless the State provides a reasonable justification."
Yet, defendant has not developed on appeal any argument regarding that specific instruction. Ill. S.Ct. R. 341(h)(7) (eff. May 25, 2018) (stating that points not argued are forfeited). Even assuming the trial court erred by not giving it, our record shows that any error was harmless.
¶ 38 Similar to Tompkins, defendant's jury was instructed to "consider all the evidence in the light of your own observations and experiences in life." The jury was also instructed:
"Only you are the judges of the believability of the witnesses and weight to be given to each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony, considered in the light of all the evidence in this case."
The evidence here certainly included the officers' acknowledgement that they did not activate their body cameras, despite official policy, and that as a result, the officers' confiscation of controlled substances at the police station was not captured on video.
¶ 39 Moreover, as defense counsel conceded below, the record shows that the jury did in fact consider the officers' failing in weighing their testimony. During deliberations the jury sent out the following note:
"We are confused, because we see many procedural errors. And the errors are creating doubt in our minds, and *** we don't know whether that doubt constitutes reasonable doubt, which would prevent us from unanimously deciding on a guilty verdict."
This note shows that defense counsel's argument led the jurors to weigh the officers' failure to activate their body cameras in considering whether the officers actually recovered controlled substances from defendant at the police station. See also People v. Minniweather, 301 Ill.App.3d 574, 580 (1998) (stating" [t]hat the jury asked for guidance during deliberations merely indicates that the jury took its job seriously and conscientiously worked to come to a just decision"). This note also shows, however, that the jury struggled to decide how much weight to give such evidence and whether their doubts were reasonable. Defendant's proposed instruction would not and could not have told the jurors how to resolve that dilemma, which was uniquely within their province. Thus, any error was harmless.
¶ 40 Next, defendant asserts that the trial court erred in denying his motion to suppress because the officers did not have a valid warrant, probable cause or sufficient evidence to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). He concludes that the officers had no basis to make the initial stop and, after the stop, had no reasonable, articulable suspicion that he had committed, was committing or was about to commit any criminal offense. Yet, defendant has not addressed the evidence presented below, the trial court's factual findings or provided reasons for his conclusions.
¶ 41 "The appellant's brief shall contain *** [a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of 'the authorities and the pages of the record relied on." (Emphases added.) Ill. S.Ct. R. 341(h)(7) (eff. May 25, 2018). Additionally," [p] oints not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." Ill. S.Ct. R. 341(h)(7) (eff. May 25, 2018). Litigants may not dump the burden of research upon the appellate court. People v. Olsson, 2016 IL App (2d) 150874, ¶ 22. Rather, we are entitled to clearly defined issues, supported by pertinent authority, and a cohesive legal argument. People v. Duffie, 2021 IL App (1st) 171620, ¶ 30.
¶ 42 The State asserts that defendant has forfeited this contention by failing to develop his argument with reasons for his contention and analysis of the evidence in this case. We agree. People v. Walker, 2012 IL App (1st) 083655, ¶ 59 (finding the defendant's contention that the trial court erroneously denied his motion to quash arrest and suppress evidence was insufficient and forfeited where the defendant failed to set forth the factors relevant in assessing probable cause, make arguments supported by citations to the record or cite legal authority as to why probable cause did not exist).
¶ 43 In any event, we briefly find that the record and the law supported the trial court's determination that the officers had a reasonable, articulable suspicion that defendant committed a traffic offense when he failed to come to a complete stop at the stop sign. Moreover, the court was entitled to find that the protective pat-down of defendant and search of the car was justified by his furtive movements and his failure to immediately pull over. Finally, the court was entitled to find that the officers, having observed apparent drug paraphernalia, had probable cause to arrest defendant.
¶ 44 III. Conclusion
¶ 45 Any error in declining to give the jury an instruction based on section 10-30 of the Act was harmless. Additionally, defendant has not demonstrated that the trial court erroneously denied his motion to quash arrest and suppress evidence.
¶ 46 For the foregoing reasons, we affirm the trial court's judgment.
¶ 47 Affirmed.