## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Dennis , 2011 IL App (5th) 090346

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. BRIAN L . DENNI S, Defe ndant-Appe llant.

District & N o. Fifth District Docke t No. 5-09-0346

Rule 23 order

filed Motion to publ ish

g rante d August 10, 2011

August 31, 2011

Held (Note : This s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a prosec ution for the arme d robber y of a liquor store, the trial court did
not abuse its discretion in admitting a video rec o rd ing and still photogr aphs from surve illance came ras wher e the State prese nted sufficie nt proof under the silent-witness theory of the reliability of the
proce ss tha

t pr oduced the video and the photog raphs, a nd the trial cour

t did not abuse its discretion in finding that the delay of d ef endant’s trial

cause d by his motion to substitut e judge s was attributable to him and that his right to a spe edy

trial was not violated.

Dec ision Under
Review Appea l from the Circuit Court of J eff erson County
, No. 08-CF- 541; the Hon. Ter ry H. Gambe r, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, J ohannah B. Weber, and Pamela L ace y , all of State Appellate D efe nder’ s Offic e, of Mt. Ve rnon, for appellant.

Nicole Villani, State’s Attorney
, of Mt. Ver non (Patrick Delfino, Stephen E. Norris, an d Sharon Shanahan, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE WEL CH delivere d the judg ment of the c ourt, with opinion.
J ustices Donovan a

nd Spomer conc urre d in the judgme nt and opinion.

OP INION

¶ 1 The defenda

nt, Br ian L

. Dennis, appeals from his conviction for arme d robber y with a knife of the manag er at the Times Square L iquors store. He was found g uilty by a jury sitti ng in the circ uit court of J eff erson County and was s en t en ce d to an eig ht-y ear term of imprisonment. He raises only two issues on appea l: whether the circ uit court err ed in denying his motion to dismiss based on the violation of his statutory rig ht to a speedy trial when that trial was delayed as a result of his motion to substitute judge s and whether the circ uit court erred i n al l o wing into evidenc e a video rec ording and still photogr aphs made from the surveillance came ras operating at the liquor store that h e wa s charg ed with robbing

. For

rea sons that follow, we a ffirm. ¶ 2 We turn first to the s peedy trial issue. The defenda nt was charged b y i n fo rmation, and taken into custody
, on November 14, 2008. The defe ndant’s motion for a bail reduc tion was denied a nd the def

endant r emained in c ustody throug hout the se proc eeding s. The trial wa s schedule d to beg in March 10, 2009, w ithin 120 day s of the def endant’ s arr est. ¶ 3 On Marc h 4, 2 0 0 9
, a p re t ri al confe renc e was held befor e J udg e Gamber
, at which the defe ndant’s jury trial was confirme d for Marc h 10, 2009. There afte r, J udg e Tede schi was assig ned to preside o v er the defe ndant’s jury trial. The defe ndant promptly exercised his statutory right to substitut e judge s. The ora l motion was hear d by J udg e Gamber on Marc h 9, 2009, one day befor e the defe ndant’s jury trial wa s schedule d to beg in. Acknowle dg ing that the defe ndant had an absolute statutory right to substitut e judge s in the case, the
prosec utor never

theless objected to any delay in the trial, citing the defe ndant’s concomitant statutory rig ht to a speedy trial. The prosec utor insisted that he was rea dy for trial and asked that any delay be attributed to the defe ndant for speedy trial purposes. The defe ndant declined to r espond. ¶ 4 J udg e Gamber acknow ledg ed that the defe ndant had the rig ht to sub s t itute judge s and
g rante d the defe ndant’s motion. J udg e Gamber further found that any delay in the jury trial

was occas i o n ed b y t h e defe ndant and not by the State and asked the defe ndant if he

-2-understood that this would delay t h e st art of his jury trial. Def ense counsel responded t hat the defe ndant was not waiving his rig ht to a speedy trial but still wished to substitut e judge s. There upon the court g rante d the motion to substitut e judge s, assig ned the case to himself, and resc hedule d t h e j u ry trial for Marc h 24, 2009. The court attributed the delay to the defe ndant for spe edy

trial purposes. ¶ 5 On Marc h 17, 2009, the defe ndant filed a motion to dismiss the char g es ag ainst him on the g round that his statutory rig ht to a speedy trial had been violated by the delay

. The motion
argued that the delay should not be attributed to him beca use doing so forc es him to choose betwee n his right to substitute judge s and his rig ht to a speedy trial. ¶ 6 The motion to dismiss was hear d Marc h 20, 2009. The defe ndant pointed out that J udg e T ed eschi had not been assigne d to hear the defendant’s jury trial until Marc h 6, 2009, just four day s befor e the trial was schedule d to beg in, and that the defe ndant had promptly filed his motion to substitute. The prosec utor responde d that he had be en re ady for trial and had done not h i n g to contribute to the delay

. The mot ion to dismiss was denied. The defenda nt appea ls. ¶ 7 I llinois law requires that “[e]very person in custody in this S tate for

an allege d offe nse shall be tried by the court having jurisdiction within 120 day s from the date he was taken into custody unless delay is occa sioned by the defe ndant.” 725 I L CS 5/103-5( a) ( We s t 2010). Any
person not tried in acc ordanc e with this section must be discharg ed from custody

. 725 I L CS 5/103-5(d) (West 2010). A delay is occa sioned by the defe ndant and char g ed to the defe ndant when the defe ndant’s acts cause d or contributed to a delay resulting in the postponement of the trial. People v . Kliner , 185 I ll. 2d 81, 114 (1998). ¶ 8 I llinois law also provides that a criminal defe ndant has an absolute rig ht, within 10 day s afte r a cause has been place d on the trial call of a judge
, to move the court for a substitut ion of that judge on the g round that the judge is prejudice d ag ainst him. 7 2 5 I L C S 5/114-5(a) (West 2010)

. The defe ndant exercised this right in the case at bar, r esulting in his jury trial being assig ned to a differe nt judge and placed on that judge ’s t ri al s chedule. The trial was delayed by

14 day s. ¶ 9 We beg in with the standard of revie w. The trial court’s deter mination reg arding who is
respo n s i b l e fo r the delay of a trial is entitled to much defe renc e and should be sustained absent a clea

r showing that the trial court abused its discretion. People v. Kliner
, 185 I ll. 2d 81, 115 (1998). ¶ 10 The supreme court has long held that a motion for a substitut ion of judge s constitutes a delay occa sioned by the defe ndant for purposes of the speedy trial statute. People v. Lucien
, 66 I ll. App. 3d 280, 291 (197 8 ) (c i t i n g People v. Spicuzza
, 57 I ll. 2d 152, 155 (1974)) ; People v. Zuniga
, 53 I ll. 2d 550, 553 (1973). Acc ording ly
, the court in the case at bar did not abuse its discretion in attributing to the defe ndan t an y delay cause d by his motion to substitut e judg es. ¶ 11 Deter

mining the leng th of the delay that is attributable to the defe ndant’s motion and not
t o o ther cause s is also best left to the circ uit judge
, who possesses knowledg e of t h e conditions and circ umstances of his circ u i t and is thus in the best position to evalua te the time nece ss ar y t o co mplete the administrative steps involved in a rea ssignment of judge s.

-3-People v. Anderson
, 112 I ll. App. 3d 270, 272 (1983). The circ uit court’s deter mination with
reg ard to the leng th of delay occa sioned by the motion shoul d b e s u s t ained unless it is
appar ent that the court abused its discretion in making that decision. Anderson
, 112 I ll. App. 3d at 272. As explained in Anderson : “When a case is r eassig ned from one judge to a nother, it loses whateve r seniority it had on the orig inal judge ’s cale ndar; i t must be returne d to the chief judge for

rea ssignment; and it probably assumes a place at the bottom of the n ew judge ’s list of pending case s. In other words, ‘re assig nment start[s] anew the administrative proce dure of bring ing the defe ndant’s [case] to trial.’ ” 112 I ll. App. 3d at 272 (quoting People v

. Zuniga , 53 I ll. 2d 550, 554 (1973)). ¶ 12 In the case at bar, upon g ranting the defe ndant’s motion to substitut e judge s, the circ uit judge immediately rea ssigne d the case t o h i m s elf and went off the rec ord to discuss with counsel a mutually ag ree able date for the trial. This discussion is not contained in the rec ord

on appea l, but afte r the off- rec ord discussion, the court immediately announce d on the rec ord that the jury trial would be held just 14 day s later. The defe ndant did not object that an ear lier date was available
, and there is no indication in the rec ord that the court did not set the trial

on its first available date. Acc ording ly
, the circ uit court did not abuse its discretion in finding that the entire period of delay was due to the d efe ndant’s motion to substitut e judge s and there fore was a

ttributable to the defe ndant. ¶ 13 The two case s relied upon by the defe ndant are distinguishable. In People v. Mack lin
, 7 I ll. App. 3d 713 (1972), a judge was assig ned to hear the defe ndant’s trial on the 120th day

. The defe ndant fi l ed a motion to substitut e judge s, which was g rante d, and the case was ref err ed to the chief judge for rea ssignment. Despite the fac t that there we re at l ea st two judge s available to preside over the trial on that date, no trial was held. The defe ndant’s motion to dismiss based on a violation of his speedy trial ri gh t wa s gra n ted. The State
appea led. ¶ 14 On appea l, the court held that a substitution of judg es under the statute is not delay per

se char g eable to the defendant. Mack lin
, 7 I ll. App. 3d at 715. The court held t hat because the delay of t he defenda

nt’s trial was not unavoidable, there being two judge s av ai l able to hear the t rial wit hin t h e s peedy trial period, the circ uit court did not abuse its discretion in finding that the delay was not attributabl e t o t h e defe ndant and discharg ing the defe ndant. Mack lin
, 7 I ll. App. 3d at 715-16. The court he ld that a def endant ha s a statutory

rig ht to a speedy trial and a statutory rig ht to substitut e judge s, and the court stated, “Ne ither rig ht may be prec luded by the other nor may a defe ndant be forc ed to choose betwee n the two when an

exe rcise of both rights will not cause an unavoidable delay .” (Emphasis added.) Mack lin
, 7 I ll. App. 3d at 715-16. The Mack lin court expressly held that it was not deciding the question in a fac tual situation wher e the exercise of both statutory rig hts would cause an unavoidable delay . 7 I ll. App. 3d at 716. ¶ 15 The case at bar prese nts the fac tual situation that the Mack lin cou rt d i d n o t ad d re s s: wher e the exercise of both the defe ndant’s statutory rig hts would cause an unavoidable delay

. I n the case at bar, there is no indication in the rec ord that any judge or trial set t i n g wa s available to hear the defe ndant’s case during the 120-day speedy trial period. A delay beyond

-4-that period was an unavoidable conseque nce of the defe ndant’s exercise of his statutory rig ht

to substitut e judge s. Nor is there any indication in the rec ord that the ear liest setting was not chosen for the defe ndant’s trial. Acc ording ly
, the circ uit court did not abuse its discretion in denying the defe ndant’s motion to dism iss. ¶ 16 In People v. McClure
, 75 I ll. App. 3d 566 (1979), t h e d ef en d an t ’s m o t i o n fo r a substitut ion of judge s was g ranted
, and near ly two months later the defe ndant filed his motion to dismiss based on a v i o l at i o n o f hi s statutory rig ht to a speedy trial. This motion

was g rant ed and the State appea led. On appea l, the court found that it was nece ssary to deter mine the leng th of the delay that was actua lly attributable to the defe ndant’s motion. McClure
, 75 I ll. App. 3d at 570. The court pointed out that this deter mination should be made by th e trial judge
, who would be possessed of knowledg e of the conditions and circ umstances of the circ uit court and would be better able to evaluate the time nece ssary to complete the requisite administrative proce dures involved in substitut ing judge s. McClure
, 75 I ll. App. 3d at 570. The court further held that the circ uit court’s deter mination should be sustained unless it is clea

rly shown that the court below abused its discr etion. McClure
, 75 I ll. App. 3d at 570. ¶ 17 In McClure
, the circ uit co u rt did not abuse its discretion in concluding that duringthe delay the State had taken no action in bring ing the defe ndant to trial. 75 I ll. App. 3d at 570. Whil e the defe ndant had temporar ily suspended the speedy trial period by his motion to substitut e judge s, he could not be held acc ountable for the entire two-month delay
, and the brunt of the delay rested with the State. McClure
, 75 I ll. App. 3d at 570-71. The g ranting of the def endant’ s motion t o dismiss was a ffirme d. McClure , 75 I ll. App. 3d at 571. ¶ 18 In the case at bar, there is no indication in the rec ord that any part of the 14-day delay in the defe ndant’s trial is attributable to the State. The rec ord ref lects that immediately upon the
g ranting of the defe ndant’s motion to substitut e judge s, the trial was resc heduled for the first available date. ¶ 19 Fi n al l y , t h e d ef en dant arg

ues that he should not be forc ed to choose betwee n two statutory rig hts–the right to a speedy trial and the rig ht to substit u t e j u d ges

. We note, howeve r, that any

time a def

endant f iles a motion which delay s his trial he makes just such

a choice

. I t is, in the end, the defe ndant’s choice
, and in the case at bar, the defe ndant chose
to exercise his rig ht to substitut e judge s at the expense of his rig ht to be tried within 120 day s of his arr est. The circ uit court did not abuse its discretion in finding that the two-we ek delay in the defe ndant’s trial as a result o f the filing of his motion to substitut e judge s was attributable to him and that the defe ndant’s statutory rig ht to a speedy trial was not violated. ¶ 20 The d ef

en d ant’s next argument relates to the admission into evidenc e of a copy of the surveillance video taken at the scene of the arme d robber y , as well as three still photogr aphs of the defe ndant produce d from that video. The defe ndant argues that the circ uit court err ed in admitting this video beca use the State fa iled to establish a suffic ient foundation. ¶ 21 Prior to the trial, the defe ndant filed a motion in limine seeking to bar the a dmission of the video beca

use Rick Hicks, who had produce d the CD from the surveillance came ra hard drive and would be a nece ssary witness to lay a proper foundation for the video, had not been listed a s a State witness. Hicks owne d the surveillance video company and had been asked

-5-by the police to co m e t o t h e scene of the crime and download the video taken by the

surveillance came ras onto a CD. Hicks was also asked by the p o l i ce t o print three still photogr aphs from the surveillance video. At the hear ing on the moti o n in limine
, the defe ndant arg

ued, “It woul d seem to me for somebody to say that is fair and acc urate repr esentation to say what occur red within Times Square L iquor that Rick Hicks would be

a nece ssary witness to lay a foundation.” The defe ndan t fu rt h er argued, “[A] video surveillance sy stem, whether or not it’s operating proper ly and–and no time lapse in the time lost in the video, think it might be essential for a foundation case .” The circ uit court denied the motion in limine

. ¶ 22 The law rec og nizes two way s to provide a foundation for the admis sion of an audio or visual rec ording

. People v . Taylor , 398 I ll. App. 3d 74, 83 (2010), appeal allowed
, 237 I ll. 2d 585 (2010). The nece ssary foundation depends on whether a witness can authenticate the
contents of the rec ording based on personal o b s er v ation of the event on the rec ording or authenticate the working s of the device and proce ss that produce d the rec ording

. Taylor
, 398 I ll. App. 3d at 83. The tradit i o n al foundation occur s wher e a witness is available and can authenticate the content of the rec ording by testifying that the rec ording acc urate ly repr esents wh at h e o r she persona lly saw or hear d. Taylor
, 398 I ll. App. 3d at 83. The court can t h en admit the rec ordingas demonstrative evidenc e. Taylor , 398 I ll. App. 3d at 83. In that case , additional authentication, such as a chain of custody
, is not nece ssary

. Taylor
, 398 I ll. App. 3d at 83. ¶ 23 Alternatively
, a court can a dmit a rec ording as primary
, substantive evidenc e based on

a foundation that establishes the rec ording ’s authenticity by other means. Taylor
, 398 I ll. App. 3d at 83. When, as in the case at bar, the rec ording is a visual rec ording , courts ofte n descr ibe this as authentication under a silent-witness theory

. Taylor
, 398 I ll. App. 3d at 83. Under the silent-witness theory
, a rec ording may be admitted without the t es timony of an ey ewitness if there is sufficie nt proof of t he reliability of the proce ss that produce d the

rec ording

. People v. Vaden
, 336 I ll. App. 3d 893, 898 (2003). A vi d eo rec ording may be admissible under the silent-witness theor y wh en the State introduces evidenc e on the
capa bility of the de vice f

or re cording
, the competency of its operator, the prope r oper ation of the device
, the prese rvation of the rec ording with no chang es additions or deletions, and the identification o f the persons, locale, or objects depicted sufficie nt to make a clea r showing of rele vance

. Taylor
, 398 I ll. App. 3d at 90. This burden implicitl y incl udes a prese rvation of a chain of custody and an explanat i o n o f an y copying so that during that
proce ss there wer e no cha ng es, additions, or dele tions. Taylor , 398 I ll. App. 3d at 90. This method of authentication is the same method used to a uthenticate audiotapes when there is no party to the conver sation prese nt to testify at the trial. Vaden , 336 I ll. App. 3d at 898. ¶ 24 The defe ndant argues that the State failed to lay any foundation for the admission of the videotape and phot og raphs. He arg ues t hat no traditional foundation wa s prese nted i n that

no witness testified that the re co rd i n g or photogr aphs acc urate ly repr esent what he or she
persona lly saw and no silent-witness foundation was prese nted beca use no witness testified
to the capa

bility of the device s used for rec ording
, the competenc y of the operators, the
proper operation of the rec ording device s, or the prese rvation of t h e recording without chang es, additions, or dele tions.

-6-¶ 25 At the trial, crime scene investigator Roge r Hay se testified t h at h e hear d the dispatch

about the robber

y and proce eded direc tly to the liquor store. The victim of the robber y was there and was injured and b l ee d ing; he was taken from the scene in an ambulance

. Hay se noticed that items wer e strewn about on the floor and that the floor was wet with some liquid. I t appea red the re ha d been some kind of strug g le behind the c ounter. ¶ 26 Ha y s e t el ep h o n ed Ricky Hicks, the proprietor of the company that had installed th e surveillance s y s tem in the l iquor store, and asked him to come down to the s tore and burn

a copy of the surveillance video to a CD. Hicks arr ived within 20 minutes. Hicks and Hay se first viewed the video on the scre en at the store and saw what it contained. Hay se then asked
two other office rs to come in and view the video on the scre en at the store. Hicks then burnt
two copies of the surveillance tape onto two CDs, which he g ave to H ay se. Hay se took one of the CDs bac k to his office a nd put his label on it, showing that it was burnt by Hicks on November 1 2, 2008. Hay se testified that the events depicted on the CD are a true and

acc urate copy of the surveillance video he had viewed at the store. At this point in the trial, the CD was admitted into evidenc e and permission g rante d to publish it over the defe ndant’s objection. ¶ 27 The decisio n t o ad m i t a p iece of evidenc e rests in the sound discretion of the circ uit
court. Taylor
, 398 I ll. App. 3d at 89. We find no abuse of d i s cr et i o n in the circ uit court’s decision to admit the video rec ording and still photogr aphs into eviden ce

. The State
prese nted sufficie nt proof of the reliability of the proce ss that produce d the video rec ording and photog raphs f

or them to be a dmitted under the silent-witness theor y

. ¶ 28 We note that neither in the circ uit court nor befor e this court does the defe ndant make a colora ble claim that the rec ording is n o t au t hentic or acc urate

. “ ‘Unless the defe ndant produce s actua l evidenc e of tampering , substitut ion, or contamination, the State ne ed only establish a probability that tampering
, substitut ion, or contamination did not oc c u r

. ’ ” Tay lor
, 398 I ll. App. 3d at 86 (quoting People v. Garth
, 353 I ll. App. 3d 108, 114 (2004))

. Any defic iencies g o to the weig ht rathe r than the admissibili ty of the evidenc e. People v. Payne
, 239 I ll. App. 3d 698, 706 (1993). Even if one link in the chain of custody is missing, if there is testimony descr ibing the condition o f the evidenc e when delivere d that matches the descr iption of the evidenc e when examined, the evidenc e is sufficie nt to establish a chain of custody

. Payne
, 239 I ll. App. 3d at 706. The circ uit court did not abuse it s d i s cr et ion in admitting the video r ecor ding a nd still photogr aphs copie d there from into evidenc e. ¶ 29 For the fore g oing rea sons, the judgme nt of the circ uit court of J eff erson County is he reby aff irmed.

¶ 30 Affir

med.

-7-