People v. Calderon

1

2024 IL App (2d) 240042-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PEDRO CALDERON, Defendant-Appellee.

No. 2-24-0042

Court of Appeals of Illinois, Second District

November 13, 2024

This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l).

Appeal from the Circuit Court of Kane County. No. 22-CF-2106 Honorable John A. Barsanti, Judge, Presiding.

JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Mullen concurred in the judgment.

ORDER

BIRKETT, JUSTICE

Held Defendant's statements were properly suppressed where the trial court's findings as to the testifying officers' credibility and defendant's language barriers were not against the manifest weight of the evidence.

¶ 1 The State appeals the trial court's order suppressing alleged confessions made by defendant, Pedro Calderon. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On January 5, 2023, the State charged defendant with two counts of predatory criminal sexual assault of a victim under 13 years old (720 ILCS 5/11-1.40(a)(1) (West 2012)) (counts I and II) and two counts of aggravated criminal sexual abuse of a victim under 13 years old (720 ILCS 5/11-1.60(b), (c)(1)(i) (West 2012)) (counts III and IV). Generally, the complaint alleged that defendant engaged in various sexual acts with the victim, L.C., who was under 13 years old at the time of the offenses but was "presently under the age of 38 years." As early as November 11, 2022, defendant was appearing in court with the assistance of a court interpreter.

¶ 4 On October 18, 2023, defendant filed his motion to suppress evidence, seeking to suppress what defendant characterized as his "unlawful interrogation." The motion described how, on November 10, 2022, defendant was arrested and transported to the North Aurora Police Department, where he was taken to an "interview room and interrogated by [i]nvestigators Dave Smith and Tom Ruzevich." Following the interrogation, in which defendant purportedly "provided self-incriminating answers regarding the allegations in this case," investigators realized that the audio equipment in the interview room had malfunctioned and no audio of the interview was recorded. A second interview was conducted, presumably so that officers could record defendant's statements. However, once more, the audio equipment apparently malfunctioned, making it "impossible to hear any of the questions asked by the investigators or any of the answers allegedly given by [defendant.]" Because no recorded audio of the interrogation existed, defendant argued that, under section 103-2.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/1032.1 (West 2022)), any confessions defendant may have made were presumed inadmissible and must be suppressed.

¶ 5 On November 16, 2023, the trial court held a hearing on defendant's motion to suppress. As usual, an interpreter was present to aid defendant. The State conceded that defendant's supposed confessions were not recorded, and that, as a consequence, it was the State's burden to show that defendant's alleged confessions were reliable and voluntary in order to be admissible.

¶ 6 The State called David Arndt, an information technology Manager for the Village of North Aurora, to testify. Arndt recalled being contacted by the Village's police department in November 2022 concerning the recording system in one of the department's interview rooms. After confirming that the system was inoperable, Arndt phoned Griffon Systems, who had installed the recording equipment and would verify that a faulty microphone was to blame. Arndt had a new microphone installed, and since then, the police department had not reported any further issues to him.

¶ 7 The State next called Investigator Dave Smith to testify. Smith testified that he was a criminal investigator for the Kane County State's Attorney's Office, who was assigned to the Child Advocacy Center. On November 10, 2022 a Thursday, he, Ruzevich, and two other detectives had gone to St. Charles to "arrest and look for defendant," who had been accused of "different sexual abuse to a minor child." After his arrest, defendant was transported to the North Aurora Police Department. There, Ruzevich and Smith interviewed him in English, without the aid of an interpreter. At the beginning of the interview, Smith offered defendant a cup of water and advised defendant of his Miranda rights through the use of a standardized form, which included Spanish and English versions. Defendant indicated that he understood his rights before signing the form. Defendant, who introduced himself to officers as "Pete," purportedly went on to generally describe himself and his family, including the minor victim, whom he had babysat "over eight years" in the past.

¶ 8 Smith informed defendant of the allegations against him, leading defendant to admit that he had previously placed his mouth on the victim's vagina. According to Smith, defendant had been so distraught with his actions that he "went to see a priest" to ask "for forgiveness." Smith asked defendant whether he had ever forced the victim to place her hand on his penis, which defendant initially denied. Eventually, after being questioned further by Detective Ruzevich, defendant relented and admitted to "plac[ing] the little girl's hand on his penis." Defendant denied that he ever had "rubb[ed] his body with an erection on her body," but he did admit that he had previously rubbed the victim's stomach area while pressing himself onto her. Defendant had further informed the investigators that he had never held down or hurt the victim.

¶ 9 The investigators asked defendant whether he had forced the victim's sister to watch pornography on his phone. Defendant denied that he had, but he explained that she had unexpectedly interrupted him while he was watching pornography and masturbating in the past. The interview concluded after approximately 50 minutes.

¶ 10 After completing the interview, Smith was informed that "the interview room was not recording." Smith did not check the audio equipment, but instead "decided that [they] should start the recording again and bring [defendant] out of [his] cell and summarize exactly what [they] had talked about *** in the prior interview." He and defendant entered the same interview room, where he reminded defendant of his Miranda rights. Smith summarized everything that had been discussed with defendant earlier. Defendant confirmed Smith's recollections and made no further admissions. The second interview lasted approximately eight minutes. After completing the second interview, Smith returned to his office, where he "contacted the State's Attorney's Office for felony review and prepared the charging documents." Before leaving the department for a three-day weekend, Smith received a copy of the interview, which he did not immediately review. Upon his review of the recording the following Monday, Smith "noticed that the first interview was actually on that video with no sound and the second interview was also on there and that had no sound as well." Smith immediately contacted a supervisor to see whether the audio from the interviews could be recovered. He never received the recordings, however.

¶ 11 Smith could recall some "direct quotes" from his first interview with defendant. For instance, Smith recalled that defendant had stated that he "couldn't help himself" once he saw the victim. Smith also recalled defendant's demeanor as being generally remorseful. Smith took some notes during the interview, which the State characterized as being "pretty bare bones," as there was "not a lot of information contained" therein, save for the ages and names of the involved parties. Smith made no notes of any questions that he had asked defendant, nor did he notate any of defendant's answers. The notes included no references to any phrases or quotations defendant said. The entirety of the notes Smith took at the interview-with certain redactions of the alleged victims' names-can be found below:

(Image Omitted)

¶ 12 On cross-examination, Smith testified that, "for the most part," interviews were recorded for later reference when compiling an interview report. However, in the instant matter, he had waited four days "or shortly after" to generate a report on defendant's interview. Upon further questioning, Smith admitted that it was not until an entire week had passed that he finally created his report of his interview with defendant. Smith also admitted that, during that week, he had conducted other interviews in other cases.

¶ 13 Smith further recalled on cross-examination that he made not one, but two sets of notes from his interview with defendant. According to Smith, the second set of notes, which had never been previously mentioned or otherwise disclosed, was not used and was discarded before he made the report.^[1] Smith did not elaborate on whether the second set of notes contained more detail than the first and, when creating his report, he could only rely on the first, "bare bones" set of notes, his memory of the interview the week before, and the silent recording of defendant's interviews.

¶ 14 Smith, on cross, testified that he was unaware that defendant's primary language was Spanish. However, he did recognize that defendant spoke with "a Spanish accent." Smith did recall defendant "stuttering or having difficulty finding the correct words," but nonetheless maintained that he never struggled to speak English during the interview.

¶ 15 Defendant next asked Smith whether he had checked the interview room's recording equipment prior to beginning the second interview. Despite having just been made aware of the room's...