# People v. Smith

> Illinois Supreme Court · November 28, 2022 · 465 Ill. Dec. 686

URL: https://www.frixlaw.com/law-library/cases/9226168

## Case

- **Court:** Illinois Supreme Court
- **Decided:** November 28, 2022
- **Citations:** 465 Ill. Dec. 686; 215 N.E.3d 891; 2022 IL 127946
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9226168

## Opinion text

2022 IL 127946

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 127946)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
CARL SMITH JR., Appellant.

Opinion filed November 28, 2022.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion.

Chief Justice Theis and Justices Anne M. Burke, Neville, Michael J. Burke,
Overstreet, and Carter concurred in the judgment and opinion.

OPINION

¶1 We are presented with two issues in this appeal. First, we are called upon to
determine whether video clips of surveillance footage re-recorded on an iPhone are
admissible pursuant to Illinois Rule of Evidence 1003 or 1004 (eff. Jan. 1, 2011) or
barred by the best evidence rule. The second issue presented is whether defendant,
Carl Smith Jr., forfeited his argument the cell phone video clips of the surveillance
footage lacked an adequate foundation for admissibility. In August 2018, defendant
was charged with one count of residential burglary alleging he knowingly and
without authority entered Michael Whittington’s apartment at 504 South Rawlings
Street in Carbondale, Illinois, with the intent to commit therein a theft, in violation
of section 19-3 of the Criminal Code of 2012. 720 ILCS 5/19-3(a) (West 2018). In
a pretrial motion, defendant sought to bar admission of two short video clips
recorded by pointing an iPhone’s video camera at a screen as the recording of
surveillance footage played. Defendant argued admitting the cell phone video clips
would violate the best evidence rule (Ill. Rs. Evid. 1001 to 1004 (eff. Jan. 1, 2011)).
Following hearings, the Jackson County circuit court denied defendant’s motion to
bar admission of the video clips. After a jury trial, defendant was convicted of
residential burglary and sentenced to 6½ years’ imprisonment. Defendant appealed.
The appellate court affirmed in a split decision, finding the cell phone video clips
were properly admitted into evidence. 2021 IL App (5th) 190066. Justice Wharton
specially concurred (id. ¶¶ 80-101(Wharton, J., specially concurring)), and Justice
Cates dissented (id. ¶¶ 102-32 (Cates, J., dissenting)).

¶2 BACKGROUND

¶3 The victim, Whittington, testified he was on disability, had served three years
in the Marine Corps, and had a Class 2 felony driving-under-the-influence
conviction in 2018. Whittington explained he had been friends with defendant and
“Tina,” who shared another apartment in the same building. Whittington would
sometimes pay defendant and Tina to clean his apartment while he was home, and
this occurred on the morning of July 29, 2018. Defendant and Tina finished
cleaning and left the apartment around noon. Whittington left around 12:30 to 1
p.m. After locking and closing the door to the apartment, he went to a bar, where
he drank beer with friends.

¶4 Whittington returned home around 6 to 6:30 p.m. and had trouble opening the
door because its lock or “striker plate” was bent. Although his “key would turn” in
the lock, “the door wouldn’t open” until he pushed it hard with his knee. Becoming
suspicious as he entered the apartment, Whittington then discovered loose change
and 40 to 50 prescription hydrocodone pills were missing. He called the landlord
and left a message saying he thought someone had broken into his apartment.

-2-
Whittington also called the police to make a report, and a police officer came to the
apartment on July 29 and spoke with him. Michael McCrary, a patrol officer with
the Carbondale Police Department, testified he was dispatched to Whittington’s
apartment on July 29, 2018, at 7 p.m. McCrary spoke with Whittington and
inspected the doorknob and latch, which was “bent and was causing *** a problem
to open the front door.” Whittington stated items were missing including
hydrocodone pills. Whittington seemed “kind of confused” because “someone had
been in his house and taken his stuff.” McCrary did not think Whittington seemed
intoxicated. Whittington had no suspects to offer that day and at that point was not
interested in pressing charges. Based on that, McCrary gave him his card and asked
Whittington to call if he found anything else.

¶5 Over the next day or so, Whittington realized jewelry was also missing,
including pieces from his deceased mother, and a window in the apartment was
broken. He called the police again to tell them about the missing jewelry and that
the window was “pushed in *** off the tracks” and its screen was also “bent up on
the outside.” He noted he informed the police there were cameras in the building.
No one had permission to enter his apartment when he was not home, and he never
found his missing jewelry.

¶6 On visiting Whittington’s apartment again, McCrary noted Whittington then
wanted to press charges. At that point, McCrary dusted for fingerprints around the
area where the jewelry had been kept. McCrary learned from Whittington on July
29 there were cameras in the building, but the landlord was not there. And when
McCrary talked to the landlord on July 30, “he said he would make a copy of the
video, and I believe it was the day after that he called me again and said he had it
ready.” After watching the cell phone videos, McCrary identified defendant in the
videos and in a search incident to arrest found $3000 cash and approximately 20
hydrocodone pills on defendant’s person. McCrary clarified he talked to the
landlord on July 30 and did not investigate more on July 29 because Whittington
did not then want to press charges but later changed his mind.

¶7 Another patrol officer, Ashley Noto, testified she responded to a call at
Whittington’s apartment on July 31, 2018, relating to his window. Noto observed
Whittington’s window was “off of its hinges or *** its tracks” “[l]ike it had been
tampered with, pushed in,” and the screen was “busted.”

-3-
¶8 The landlord, Schmidt, also testified. Schmidt owned the apartment building at
504 South Rawlings Street, knew both Whittington and defendant as tenants in the
building, and had installed four cameras in the building earlier that year. Schmidt
testified he was familiar with the operation of the video surveillance system and
explained the cameras run all the time and record to a system in his office. Footage
is saved for 48 hours, after which it is “automatically deleted *** unless you save
it.”

¶9 Schmidt testified he received a voicemail message from Whittington stating
some items had been taken from his apartment during a certain time period that
day. Schmidt talked to Whittington, who indicated the police “wanted to know if
the surveillance system worked and if we had video.” Schmidt and his wife went
and reviewed the surveillance footage for the time period Whittington provided—
both during and “some before that” time.

¶ 10 Schmidt noted they then “recorded it onto [Schmidt’s] wife’s cellphone” and
“she forwarded that to my phone. *** [W]e have a technical guy in my office ***
that helps with things like that *** and he downloaded it onto a disc.” The trial
court admitted the cell phone video clips into evidence, noting defense counsel’s
previous objections.

¶ 11 Schmidt explained how he and his wife chose the sections of the original
footage to record as follows:

“We thought those were the most important or pertinent things that were
observed on the videotape and [otherwise] my wife and I *** would have had
to hold that cellphone up to the monitor for, you know, 20 some minutes to
record nothing happening in the hallway. It was just empty.”

Schmidt stated they copied what they found to be relevant to the break-in of
Whittington’s apartment.

¶ 12 As the first cell phone video clip played in court, Schmidt identified defendant
in the video as walking up to and standing in Whittington’s doorway for a few
moments before walking away. Then, as the second cell phone video clip played in
court, Schmidt identified defendant “coming out of Michael Whittington’s
apartment and turning left down the hallway.” At the same time, a woman Schmidt

-4-
did not know came around the corner into the hallway, but she did not enter or exit
Whittington’s apartment. Schmidt stated he never saw defendant enter
Whittington’s apartment on the video clips. Schmidt stated that, in the second video
clip, “I see what I believe is [defendant] exiting Mr. Whittington’s apartment.” He
then stated he was certain it was Whittington’s apartment defendant exited in the
second video and not the empty apartment next door. Schmidt clarified he was also
certain it was defendant exiting the apartment in the second video clip.

¶ 13 Schmidt acknowledged on cross-examination that he observed the 20-minute
period between the two cell phone video clips on the original footage but did not
provide a copy of that footage to the police. Schmidt admitted he tried and failed to
copy it directly to a flash drive, “[s]o that’s why we used the phone.” They did not
ask anyone else for help copying the footage.

¶ 14 In closing arguments, the State stressed the cell phone video clips, noting they
showed defendant “was clearly inside Mr. Whittington’s home *** without Mr.
Whittington’s authority.” The defense highlighted the missing portions of video
that were not provided, asserting the “State’s whole case rests on these 20 seconds
of video that they’re trying to tell you what it shows.” Defense counsel went on,
stating:

“Out of 48 hours of video, the only thing the State can show you is two 20
second clips. We don’t have anything else to show. The Defense can’t show
any other clips because we don’t have it from them. That’s all we’ve got was
two 20 second clips.

You don’t have the period before they say [defendant] was down there in
the hall. You don’t have the period in between the two times, which is about
1:45 and about 2:10. What happened in between those times? You don’t have
the period after. Who else is going up and down the hall? Who else is in that
building? What else is going on? We don’t know because they didn’t give it to
us.”

¶ 15 In rebuttal argument, the State asserted the evidence clearly showed defendant
“tried to get in through the front” but, when that didn’t work, he broke into the
apartment through the window and exited through the front door.

-5-
¶ 16 While deliberating, the jury sent out a note asking to see the cell phone video
clips again, and they were replayed in open court. The jury then found defendant
guilty of residential burglary.

¶ 17 Defendant filed a motion for new trial or judgment of acquittal notwithstanding
the verdict, challenging the admission of the cell phone video clips. The trial court
denied the motion and, following a sentencing hearing, sentenced defendant to 6½
years in prison.

¶ 18 On appeal, defendant argued the trial court erred by admitting the cell phone
video clips under either Rule 1003 or 1004; alternatively, defendant argued,
admission should have been barred under the common-law version of the best
evidence rule, which defendant argued still applied. 2021 IL App (5th) 190066,
¶¶ 49, 53. The State argued the videos were properly admitted where the foundation
was sufficient under this court’s opinion in People v. Taylor, 2011 IL 110067. 2021
IL App (5th) 190066, ¶ 50. In response to the State’s argument, defendant
distinguished Taylor from this case and maintained his arguments related to the
best evidence rule. Id. ¶ 52. The Fifth District affirmed in a three-way split opinion.

¶ 19 The lead opinion initially bypassed the issue of admission under Rule 1003 and
concluded the videos were admissible under Rule 1004. Id. ¶ 55. However, the lead
opinion ultimately went on to “reject the contention that the admission of the iPhone
clips was an error based on inaccuracy or unfairness.” Id. ¶ 61. Furthermore, Justice
Vaughan determined the common-law best evidence rule, as discussed in Electric
Supply Corp. v. Osher, 105 Ill. App. 3d 46, 48 (1982), no longer applies following
Illinois’s codification of the Illinois Rules of Evidence in 2011. 2021 IL App (5th)
190066, ¶ 53. As to whether defendant forfeited his argument challenging the
foundation for admitting the cell phone video clips under Taylor, the lead opinion
noted defendant failed to raise the issue in his opening brief. According to the lead
opinion, although the State did address Taylor in its brief, defendant’s reply brief
was not responsive to the State pursuant to Illinois Supreme Court Rule 341(j) (eff.
Oct. 1, 2020). 2021 IL App (5th) 190066, ¶ 52. Justice Vaughan went on to note he
would have agreed with the special concurrence on the Taylor analysis, had he
reached the issue. Id.

¶ 20 In an opinion specially concurring in the judgment, Justice Wharton agreed with
the trial court’s decision to admit the cell phone video clips but on other grounds.

-6-
Id. ¶ 81 (Wharton, J., specially concurring). The special concurrence concluded
defendant did not forfeit his argument challenging the foundation for the cell phone
video clips, but it then determined the totality of the evidence supported admission
of the video clips under Taylor. Id. ¶¶ 81-99. Justice Wharton, in the alternative,
agreed with the lead opinion on the best evidence rule and further concluded the
video clips were admissible under Rule 1003. Id. ¶¶ 100-01.

¶ 21 Finally, in a dissenting opinion, Justice Cates addressed what she determined to
be “two critical issues” here: (1) “whether there was an adequate foundation for the
admission of the two, 20-second video clips under the ‘silent witness’ theory” of
Taylor and (2) “whether, under the Illinois Rules of Evidence, the admission of the
video clips was unfairly prejudicial to the defendant.” Id. ¶ 120 (Cates, J.,
dissenting). The dissent would have reached the merits of the first issue and would
have resolved both issues in favor of defendant. Id. ¶¶ 120-21. On the second issue,
Justice Cates agreed the cell phone video clips were each a “duplicate” under Rule
1001. However, she would have concluded their admission was unfair to defendant
under Rule 1003. Id. ¶¶ 131-32.

¶ 22 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct.
1, 2021).

¶ 23 ANALYSIS

¶ 24 Defendant appeals, arguing (1) the trial court erred in admitting the cell phone
video clips where they were inadmissible pursuant to Rule 1003 or 1004 or were
inadmissible under the common-law best evidence rule or (2) defendant did not
forfeit his argument the cell phone video clips lacked an adequate foundation for
admissibility and this court should remand and direct the appellate court to address
his challenge to the video clips’ foundation.

¶ 25 A trial court’s decision whether to admit evidence is reviewed for an abuse of
discretion. People v. King, 2020 IL 123926, ¶ 35; Taylor, 2011 IL 110067, ¶ 27.
“An abuse of discretion occurs only where the trial court’s decision is arbitrary,
fanciful, or unreasonable to the degree that no reasonable person would agree with
it.” People v. Rivera, 2013 IL 112467, ¶ 37. When considering the interpretation of
the Illinois Rules of Evidence, we employ the de novo standard of review. People

-7-
v. Deroo, 2022 IL 126120, ¶ 19.

¶ 26 Illinois Rules of Evidence

¶ 27 Defendant initially argues the cell phone video clips are inadmissible under both
the duplicate exception contained within Rule 1003 and the other-evidence
exception contained within Rule 1004. Multiple provisions of the Illinois Rules of
Evidence are relevant to our analysis. Rule 1001 (“Definitions”) defines the terms
“[w]ritings and [r]ecordings” to include “photographing”—while defining
“[p]hotographs” in turn to include “video tapes, motion pictures and similar or other
products or processes which produce recorded images.” Ill. R. Evid. 1001(1),
(2) (eff. Jan. 1, 2011). A cell phone video, like those at issue, therefore qualifies as
a “writing or recording.”

¶ 28 Rule 1001(3) then defines an “original” of “a writing or recording” as the
following:

“An ‘original’ of a writing or recording is the writing or recording itself or any
counterpart intended to have the same effect by a person executing or issuing
it. An ‘original’ of a photograph includes the negative or any print therefrom.
If data are stored in a computer or similar device, any printout or other output
readable by sight, shown to reflect the data accurately, is an ‘original.’ ” Ill. R.
Evid. 1001(3) (eff. Jan. 1, 2011).

¶ 29 In contrast to the definition of an “original,” Rule 1001(4) defines a “duplicate”
as follows:

“A ‘duplicate’ is a counterpart produced by the same impression as the original,
or from the same matrix, or by means of photography, including enlargements
and miniatures, or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately reproduces
the original.” (Emphases added.) Ill. R. Evid. 1001(4) (eff. Jan. 1, 2011).

¶ 30 A cell phone video, like those at issue, could therefore qualify as a “duplicate”
of any original footage it recorded as “a counterpart produced *** by means of
photography *** or electronic re-recording”—so long as it “accurately reproduces
the original.”

-8-
¶ 31 Rule 1003 (“Admissibility of Duplicates”) provides: “A duplicate is admissible
to the same extent as an original unless (1) a genuine question is raised as to the
authenticity of the original or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original.” Ill. R. Evid. 1003 (eff. Jan. 1, 2011). Notably,
no issue is raised here under Rule 1003(1) as to authenticity.

¶ 32 And finally, Rule 1004 (“Admissibility of Other Evidence of Contents”), part
(1) allows the admission of alternative types of evidence of the contents of an
original that was lost or destroyed, as follows:

“The original is not required and other evidence of the contents of a writing,
recording, or photograph is admissible if—

(1) Originals Lost or Destroyed. All originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith[.]” Ill.
R. Evid. 1004(1) (eff. Jan. 1, 2011).

¶ 33 Here, the parties agree the cell phone video clips constitute “writings and
recordings” (as defined under Rule 1001(1)-(2)) that did not qualify as “originals”
(as defined under Rule 1001(3)).

¶ 34 They dispute the trial court’s admission of the cell phone video clips, first as to
(1) whether the video clips were “duplicates” as defined under Rule 1001(4) and,
if so, (2) whether the video clips were admissible under Rule 1003(2), based on
whether “in the circumstances it w[as] unfair to admit the duplicate in lieu of the
original.”

¶ 35 The parties also contest the trial court’s admission of the cell phone video clips
in the alternative under Rule 1004. Defendant asserts that, if this court agrees the
video clips were inadmissible under Rule 1003, it would be improper to then
consider admissibility under Rule 1004—but defendant further asserts, in the
alternative, the video clips were inadmissible under Rule 1004 based on bad faith.
The State asserts the cell phone video clips were admissible under either Rule 1003,
Rule 1004, or both.

-9-
¶ 36 Admissibility of the Cell Phone
Video Clips Under Rule 1003

¶ 37 We first address the Rule 1003 arguments. Defendant initially argues the cell
phone video clips were not “duplicates” that could be admitted under Rule 1003
because they did not “ ‘accurately reproduce the original’ footage,” under the
language of Rule 1001(4). But defendant does not argue the video clips were altered
or inauthentic, or otherwise unfaithfully depicted the content they did include.
Rather, defendant’s contention is that the cell phone video clips’ short duration,
together capturing only two small portions of the then-existing surveillance
footage, did not provide enough context to “accurately” relay the entirety of the
original surveillance footage.

¶ 38 Defendant asserts this is so because the video clips “omitted possibly the most
relevant time period to the commission of this offense”—the period between the
videos—“as well as any other potentially relevant time period throughout the day,”
when witnesses’ (and other potential suspects’) comings and goings to the
apartment could have been established and contrasted with presented testimony.

¶ 39 The parties agree there is no Illinois caselaw on point. Defendant looks instead
to interpretations of the “functionally identical” Federal Rule of Evidence 1003 as
persuasive authority. See Fed. Rs. Evid. 1001(e), 1003. Defendant cites United
States v. Condry, 574 F. Supp. 979, 981-82 (N.D. Okla. 2021), where the police
used a cell phone camera to re-record a video of the defendant’s cell phone playing
original videos and the district court held the re-recorded video qualified as a
“duplicate” in part because it contained “the entirety of the videos” and could be
authenticated by witnesses. Defendant asserts that here, by contrast, the cell phone
videos were “incomplete and unfair” and the appellate court ruling “encourages the
admission of unreliable evidence.”

¶ 40 The State contests defendant’s argument that a “duplicate” needs to be a
complete copy of the original, asserting “there is no such requirement that a
duplicate fully reproduce the original,” so long as the reproduction of a portion of
the original is done “accurately.” (Emphasis in original.) The State also points to
persuasive authority in jurisdictions with substantially similar rules of evidence to
Illinois, citing United States v. Sinclair, 74 F.3d 753, 760 (7th Cir. 1996) (upholding
the admission of partial copies of documents as “duplicates” of the originals), and

- 10 -
State v. Jones, 2015-Ohio-4694, ¶¶ 18-20, 32-37 (App. 8th Dist.) (upholding the
admission as duplicates of copies of sequences reformatted from portions of
original surveillance footage, first “deemed relevant” and selected by the apartment
manager, where the content produced had not been altered).

¶ 41 The State asserts defendant conflates the unfairness question under Rule
1003(2) with the question of whether the cell phone video clips constituted
duplicates under Rule 1001(4). The State argues that no case cited by defendant
supports his position that a partial recording cannot be considered a duplicate,
noting instead that the cited cases “simply hold that a complete duplicate does, a
position that is unchallenged here.” Defendant notes that the duplicates at issue in
the cases cited by the State, while containing only portions of the originals, still
showed all the material events at issue in those cases.

¶ 42 After considering the plain language of Rules 1001(4) and 1003, and the
specific circumstances here, we are persuaded the cell phone video clips constitute
duplicates under Rule 1001(4), as required for admissibility under Rule 1003.
Interpretating Rule 1001(4) to require any duplicate to include the entirety of an
original does not follow the plain language of the rule, and we decline to adopt such
a view. Absent from Rule 1001(4) is any language requiring a duplication of the
original in its entirety in order to constitute a duplicate. In the absence of such
language, reading such a requirement into the rule would be improper. We note
defendant fails to provide any precedent—persuasive or otherwise—directly
supporting his contention that a recording including only a portion of an original
cannot be admitted as a duplicate of that portion under Rule 1003.

¶ 43 We conclude defendant’s concern that the cell phone video clips contain only a
portion of the original surveillance footage speaks to the fairness analysis the trial
court must conduct under Rule 1003(2), to which we now turn.

¶ 44 As noted, under Rule 1003(2), a duplicate should not be admitted if “in the
circumstances it would be unfair to admit the duplicate in lieu of the original.”
Defendant asserts the trial court erred in admitting the cell phone video clips
because their admission was unfair to the defense under this provision. Defendant
notes “the full footage” would have “depicted all of the entries and exits by
[defendant] and Whittington (and anyone else) on the day of the incident,” whereas
showing only the cell phone video clips “invited the jury to draw negative

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inferences that the entire video could have foreclosed.” Defendant believes
“questionable circumstances like what occurred here” should bar admission under
Rule 1003 for unfairness, citing the dissent below and two civil cases where
duplicates were admitted when the opposing party did not contest the duplicates as
inaccurate.

¶ 45 The State argues the trial court was correct to reject defendant’s argument on
unfairness, noting there is no “non-speculative basis on which to conclude that the
footage that [the landlord] Schmidt did not record contained relevant evidence or
to impugn Schmidt’s credibility in recording the footage.” The State asserts the
court did not abuse its discretion and any unfairness was dispelled by the court
allowing the defense “ample latitude” to cross-examine the witnesses and “exploit”
the gaps between the video clips at trial.

¶ 46 Defendant disagrees with the State that “the potential unfairness” of the cell
phone video clips was offset by the defense being allowed extra leeway in cross-
examination and closing arguments, asserting that “the information on the [video]
clips was so limited that it left the defense without the means to fully formulate its
own theory.” Defendant also points to an advisory committee note on Federal Rule
of Evidence 1003, which states: “Other reasons for requiring the original may be
present when only a part of the original is reproduced and the remainder is needed
for cross-examination or may disclose matters qualifying the part offered or
otherwise useful to the opposing party.” Fed. R. Evid. 1003, Advisory Committee
Notes. Defendant believes this “perfectly describes the circumstances here.”

¶ 47 We are mindful that we must review the trial court’s decision to admit the cell
phone video clips pursuant to the highly deferential abuse-of-discretion standard of
review. An abuse of discretion occurs when the trial court’s decision can be
characterized as “arbitrary, fanciful, or unreasonable to the degree that no
reasonable person would agree with it.” Rivera, 2013 IL 112467, ¶ 37. We begin
by pointing out that, here, there is no question as to the accuracy of the recording.
While it is undisputed that the entire original recording was not duplicated, no claim
has been raised that the short video clips in any way altered the original footage.

¶ 48 Here, the two short cell phone video clips showed (1) defendant approach and
stand close outside Whittington’s doorway for a few moments before walking away
and then—after a gap of approximately 20 minutes—(2) defendant leave

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Whittington’s apartment through the door while carrying a white plastic bag.
Whittington testified hydrocodone pills and jewelry were missing when he returned
later that day and defendant did not have authority to be in his apartment during
that time. Testimony also established the apartment window was knocked off its
track and the screen was bent. And the landlord, Schmidt, a neutral observer,
testified the hallway was “just empty” on the original surveillance footage captured
between the two cell phone video clips. Defense counsel was able to question
Schmidt on cross-examination and re-cross at length on all these topics,
emphasizing his lack of “competence” to make a complete copy of the original
footage. Finally, defense counsel made strong arguments to the jury encouraging
the jury to accept defense counsel’s view of the significance of the missing portions
of the surveillance footage and against whom that should be held.

¶ 49 Admitting the duplicates was fair where the jury heard both sides and had ample
information from defendant’s point of view to consider when deciding what weight
to give the video clips. Thus, on the record before us, we cannot say the trial court’s
conclusion was “arbitrary, fanciful, or unreasonable to the degree that no reasonable
person would agree with it.” Id. We therefore uphold the trial court’s admission of
the cell phone video clips.

¶ 50 We note defendant’s argument that this holding could lead to bad behavior by
parties attempting to selectively edit duplicates to gain advantage at trial. But a trial
court may determine, on different facts, that it would be unfair to admit a duplicate
that selectively contains only a portion of an original. Any evidence of
gamesmanship by the offering party could be considered in that analysis. Our ruling
here in no way constrains a trial court’s discretion on that issue in a future case.

¶ 51 Admissibility of the Cell Phone
Video Clips Under Rule 1004

¶ 52 Given our resolution of the issues under Rule 1003, we find it unnecessary to
address the parties’ alternative arguments under Rule 1004.

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¶ 53 Applicability of the Common-Law Best Evidence Rule

¶ 54 Finally, defendant asserts the best evidence rule as understood in the common
law is still applicable in Illinois, citing Osher, 105 Ill. App. 3d at 48-49, and argues
the common-law rule served as an independent basis to bar admission of the cell
phone video clips. Defendant asserts that, under Osher, the State was required to
show diligence in seeking the original surveillance footage under the common-law
best evidence rule.

¶ 55 In support, defendant cites two unpublished First District cases that continued
to cite older rulings like Osher after the enactment of the Illinois Rules of Evidence,
In re Marriage of Greenberg, 2021 IL App (1st) 210325-U, ¶¶ 16, 27 (discussing
the requirements of Rule 1004 and a need to show “diligence” under the older
common-law best evidence rule while reversing the circuit court’s denial of
admission of secondary evidence of a written arbitration contract based on lack of
fact finding), and People v. Grafton, 2017 IL App (1st) 142566-U, ¶¶ 78-80
(upholding admission of a video, citing older caselaw while noting a police officer
showed “diligence” in recording cell phone video of surveillance footage in attempt
to preserve it). Defendant also relies on one federal case that still cited the best
evidence rule as understood in the common law, following the enactment of the
Federal Rules of Evidence, United States v. Chavez, 976 F.3d 1178 (10th Cir.
2020).

¶ 56 The State argues, in line with the appellate court lead opinion, that the
codification of the Illinois Rules of Evidence clearly abrogated the common-law
best evidence rule in existence at the time. The State cites the general committee
commentary on the Illinois Rules of Evidence, which explains the Illinois Rules of
Evidence were adopted to codify “the current law of evidence in Illinois.” Ill. R.
Evid. Committee Commentary 1 (adopted Jan. 1, 2011). The committee
commentary on Rule 1004 further notes it is “no longer necessary to show that
reasonable efforts were employed beyond available judicial process or procedure
to obtain an original possessed by a third party.” Ill. R. Evid. 1004, Committee
Commentary (adopted Jan. 11, 2011).

¶ 57 We agree with the State and the lead opinion below that the Illinois Rules of
Evidence codified—and therefore abrogated—the common-law rules of evidence
in Illinois. We therefore reject defendant’s reliance on Osher and the then-current

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understanding of the best evidence rule as it existed in the common law. We
reaffirm that the Illinois Rules of Evidence control on these issues.

¶ 58 Defendant’s Alternative Request for
Remand to Address Foundation

¶ 59 We end by addressing defendant’s alternative request for remand. The appellate
court split on the question of whether defendant had forfeited an issue of the videos’
foundation under this court’s decision in Taylor, 2011 IL 110067—where
defendant did not contest the issue in his opening brief but the State addressed an
issue relating to Taylor and defendant responded to it. We decline defendant’s
request for remand and conclude the issue is not properly before this court for two
reasons.

¶ 60 First, while defendant did raise in the trial court a freestanding challenge to the
cell phone video clips’ foundation under Taylor, apart from his arguments on the
best evidence rule, he chose not to advance that issue in the appellate court. 2021
IL App (5th) 190066, ¶¶ 49 n.2, 52. In an argument it has since abandoned, the
State argued the video clips’ sufficient foundation under Taylor essentially negated
defendant’s arguments under the best evidence rule. Id. ¶ 50. In responding to the
State’s argument, defendant distinguished Taylor—noting that, because the
recording at issue there qualified as an original, the best evidence rule was not
implicated—and reiterated his arguments under the best evidence rule. Id. ¶ 52; id.
¶ 121 (Cates, J., dissenting). The lead appellate court opinion initially noted this
same point. Id. ¶ 51 (lead opinion) (stating that because “the videotape in Taylor
was an original as defined by Rule 1001(3),” “[t]he best evidence rule and a
potential duplicate copy was not at issue”).

¶ 61 As noted, the Fifth District then split on whether defendant forfeited his
argument on foundation under Taylor—and the special concurrence and dissent
split again on the outcome each would have reached on the merits of the issue. But
defendant was simply arguing in the appellate court that the State’s position was
wrong: discussion of the issue of foundation under Taylor did nothing to resolve
the separate question of admissibility under the best evidence rule. See 31 Charles
A. Wright & Arthur R. Miller, Federal Practice and Procedure § 8004 (Apr. 2022
Update) (“Even assuming the proper foundation has been established, a duplicate

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is not admissible under Rule 1003 if either of two exceptions to the admissibility
of duplicates applies.”). Forfeiture was not at issue because none of this served to
revive a freestanding argument on foundation under Taylor.

¶ 62 Second, defendant still does not seek reversal on the basis of Taylor, instead
characterizing the issue as “not outcome determinative here.” We agree. Defendant
urges this court to nonetheless analyze the factors under Taylor in support of his
argument on the best evidence rule, under Rule 1003, but we conclude it does not
alter our analysis on that issue above. We decline to remand the case to the appellate
court to clarify this issue, as defendant asks in the alternative, because it is
unnecessary for the reasons discussed.

¶ 63 CONCLUSION

¶ 64 For the foregoing reasons, we affirm the judgment of the appellate court, which
affirmed defendant’s conviction and sentence.

¶ 65 Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9226168. Public record. Not legal advice.