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Criminal Defense – Procedures in Misdemeanor Court


 

ALWAYS REMEMBER THAT YOU HAVE A RIGHT TO REMAIN SILENT AND ANYTHING CAN AND WILL BE [MISTATED, TWISTED, MISCONTRUED] USED AGAINST YOU IN A COURT OF LAW. THE BEST POLICY IS TO SAY YOU WISH TO REMAIN SILENT AND ASK FOR AN ATTORNEY. IT IS TRULY AMAZING HOW THE PROSECUTORS AND POLICE ARE ADEPT AT CHANGING WHAT YOU SAY TO SOMETHING INCRIMINATING EVEN IF YOU ARE INNOCENT. THEY SAY TRUST THEM – THAT’S A BAD CHOICE!

THE FOLLOWING REFERS TO MY EXPERIENCE IN COOK COUNTY COURTS IN ILLINOIS – IT MAY NOT APPLY TO COURTS ELSEWHERE

Arrest and bail – when you are arrested you will be photographed (mug shot), fingerprinted and receive a bond slip – either a personal recognizance bond (“I-Bond”) or a bond slip that requires you to pay 10% of the bail to get out (“D-Bond” – usually $100). These kinds of bonds may be written by the senior officer at the precinct where you are booked. Anything more requires you go before a judge. All felonies require bail/bond to be set by a judge. The precinct officer will give you a copy of the bond slip that list your first court date, time, and place, after you sign it and then you are released.

First Appearance after arrest and bail set-

If the complainant (officer or citizen who signed complaint) does not appear the States Attorney will move to SOL (stricken on leave of court to re-instate [within 160 days]). Then the judge will tell you that you can leave. The State may petition to re-open the case within 160 days. If they do, you will receive a postcard to appear. You should immediately orally make a statement demanding trial: “I move for speedy trial”. This is to preserve your right to sue for unlawful arrest, malicious prosecutions, etc. if you should later want to do so. Once 160 days have passed you should consider going to the clerk and asking for the forms to expunge the record, otherwise you will continue to have a criminal record that could be seen by people doing background checks.

If the officer or complainant appears, then the judge will ask if you have an attorney. If you can afford one but don’t have an attorney you can ask the judge for a continuance so you have time to find one. If you can’t afford one, you can ask the judge to  appoint a public defender and the judge will do so and pass the case. You then will be told to talk to the PD in the hall or whatever and you will then decide what to do with his assistance. When you next go before the judge when the case is recalled, the prosecutor (Assistant States Attorney) will hand your PD the “discovery” – that is a small package of papers containing the complaint (charge), the arrest report, police incident reports, your rap sheet, and a “bill of particulars” stating the date, time, place, and names of witnesses to the crime.

Miranda Warning (Admonishments) are NOT REQUIRED in misdemeanor cases.

Bail is generally granted at the police station and you are released (usually $1000 I-Bond i.e. personal recognizance bond or $1000 D-Bond – you have to pay 10 % or $100 to get out). The senior officer at the station is allowed to decide to give and issue this bond order at the station by Illinois Supreme Court Rules. If they want a higher bail ordered or you refuse to sign the bond slip stating you agree with the conditions, you will be held until you can be taken before a judge who will then set bail.

Phone Calls – you have a statutory right to make a phone call to your attorney and to your family. They however do not have to let you do this until you are  processed (fingerprinted, photographed, attempt to interview you, check your criminal record and see if any outstanding warrants). If you are ill and taken to the hospital or infirmery immediately at the jail you will illegally be denied this right in C[r]ook County.

Every time you are moved to another location, the right to call attorney and family is renewed, but this may not be honored as the C[r]ook County Sheriff and local police don’t feel they need to follow the law.

Discovery – Discovery is where both sides exchange evidence and witness names, etc. prior to trial. In misdemeanor cases, the defendant is NOT required to give the State ANYTHING prior to trial and it is often best not to do so. The State however must give “Schmitt Discovery”. This is only what is required by the decision in the U.S. Supreme Court Case. People v. Schmitt, 56 Ill. 2d 572. Schmitt requries the following modified by a case called Kladis – all explained in the following which YOU SHOULD READ if you are defending  yourself in a misdemeanor case.

Sadly many public defenders are not familiar with this and don’t realize that Illinois Supreme Court Rules for discovery ONLY APPLY TO FELONIES!

READ THIS TO TOTALLY FAMILIARIZE YOURSELF WITH DISCOVERY BEFORE TRIAL (FINDING OUT WITNESS NAMES, EVIDENCE, VIDEOS ETC. THAT THE STATE MAY HAVE:

Schmidt is the name of a case that sets forth the discovery obligations of the state in a misdemeanor case. Discovery is felony cases is governed by supreme court rule so the courts had to address what information a defendant is entitled to receive in pretrial discovery in misdemeanors.

 

Discovery is limited in misdemeanor cases as guided by People v. Schmidt 56 Ill. 2d 572. However, in People v. Williams, (4th Dist 1980), 90 Ill. App. 3d 158, 45 Ill. Dec. 785, 413 N.E.2d 118, United States v. Nixon, (1974) 418 U.S. 683, 945 Ct. 3090, 41 L.ed.2d 1039, People v. West, (1981), 102 Ill. App. 3d 50, 57 Ill. Dec. 701, 429 N.E.2d 599, and People v. Harris, 91 Ill. App. 3d 1, 46 Ill. Dec. 256 it was decided that courts have inherent discretionary authority to order discovery in a nonfelony case for purpose of seeing that criminal trial process is fair and achieves the goal of ascertaining the truth. It was also held that disobeyance of a court order to comply with a valid subpoena is not proper manner in which to test scope of subpoena but, rather, any claim that subpoena process is being abused should be presented to trial court in motion to quash.

 

 

Supreme Court Summaries

Opinions filed December 30, 2011

 

People v. Kladis, 2011 IL 110920

 

Appellate citation: 403 Ill. App. 3d 99.

 

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

 

On May 3, 2008, this defendant was stopped by a Northlake policeman for drunken driving and refused to submit to a Breathalyzer test. The officer at the scene notified her that, pursuant to the Illinois Vehicle Code, her driver’s license would be summarily suspended. She was arrested, charged with misdemeanor DUI, and, later, with speeding and driving an uninsured vehicle.

In the Cook County civil proceeding concerning her license, she sought production of the videorecording which had been made by a camera located in the officer’s squad car. The State agreed to this, but, by the time of the first trial date, the Northlake police department had destroyed the tape pursuant to its own rules for automatic expungement after 30 days.

The circuit court judge found no bad faith on the part of the State but did find a discovery violation and ruled that, as a sanction, the officer could not testify as to what was on the tape (activities during the actual stop). At the presentation of evidence in the civil proceeding on the petition to rescind, the State presented no witnesses and did call the officer to testify as to events not covered by the tape which he did observe. The motion to rescind was granted.

In the criminal case, the same type of discovery sanction was imposed, and the State appealed, claiming its prosecution of the matter was substantially impaired. The appellate court upheld the sanctions imposed below.

 

In this decision, the supreme court affirmed the appellate court, agreeing that the circuit court’s sanctioning order was not an abuse of discretion. The supreme court did not agree with the State’s argument that a 1974 decision (People v. Schmidt, 56 Ill. 2d 572) should limit the discovery sanctions imposed in misdemeanor cases to the narrow list referred to in that case. Recording devices carried by police cars are now widespread, and have gone beyond the usages of 1974. The court held here that videorecordings from squad-car mounted cameras are discoverable in misdemeanor DUI cases. The court also noted that the sanctions did not preclude the officer from testifying as to what he observed that was not recorded on the tape, although, in the civil proceeding, the State had not called him to do so. Thus, the State had declined opportunities to present evidence apart from what was barred by the sanction.

 

The appellate court’s judgment was affirmed.

 

Appellate Court of Illinois, Second District.

 

PEOPLE v. VÁZQUEZ

The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. William VÁZQUEZ, Defendant–Appellant.

No. 2–09–1155.

— September 01, 2011

 

Thomas A. Lilien and Darren E. Miller, both of State Appellate Defender’s Office, of Elgin, for appellant.Joseph E. Birkett, State’s Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State’s Attorney, and Lawrence M. Bauer and Diane L. Campbell, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

¶ 1 A jury convicted defendant, William Vázquez, of two misdemeanors: contributing to the delinquency of a minor (720 ILCS 130/2a (West 2004)) and harboring a runaway (720 ILCS 5/10–6(b) (West 2004)). On appeal, defendant argues, and the State agrees, that the trial court failed to properly admonish him as required by Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) before permitting him to conduct his own defense. They also agree that defendant’s convictions cannot stand. However, defendant argues that, under the rule in People v. Campbell, 224 Ill.2d 80, 87–88 (2006), because he has fully served his sentence, the proper remedy is vacatur of his convictions without remand for retrial. The State argues that Campbell is not decisive on the issue and that retrial is the proper remedy. We agree with the State. We conclude that Campbell is distinguishable and that under these facts defendant may be retried.

¶ 2 Defendant also argues that, under the rule in People v. Schmidt, 56 Ill.2d 572 (1974), because the State did not disclose a transcript of certain text messages that he had sent, it could not use the transcript as evidence. Given that the transcript was never disclosed, the underlying issue of whether it was subject to Schmidt discovery is an issue that may recur on retrial and thus we address it. We conclude that the transcript is not discoverable.

¶ 3 BACKGROUND

¶ 4 Defendant was charged with contributing to the delinquency of a minor and harboring a runaway (both involving Brandon P.). At an initial hearing on December 22, 2005, the judge asked defendant only if he needed time to hire an attorney. When defendant asked to make an oral motion to dismiss, the judge told defendant that he had the right to represent himself. Defendant responded that he had done so “in this district and the 1st district, federal district, Boston District” and was “prepared to move forward.” The judge responded, “I just need to caution you that if you’re not a lawyer[-].” Vasquez replied, for the record, that he understood. The judge said, “Understand it’s my job,” and defendant responded, “Yes.” The judge also advised defendant that he was entitled to discovery as required by Schmidt, under which a misdemeanor defendant is entitled to “a list of witnesses [citing what is now section 114–9(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114–9(a) (West 2008)) ], any confession of the defendant [citing what is now section 114–10(a) of the Code (725 ILCS 5/114–10(a) (West 2008)), and] evidence negating the defendant’s guilt [citing Brady v. Maryland, 373 U.S. 83 (1963) ] .” Schmidt, 56 Ill.2d at 575.

¶ 5 Shortly after the hearing just described, defendant filed a motion to dismiss in which he denied the factual basis of the charges and claimed that Brandon had been physically abused and neglected by his father. On February 28, 2006, Greg P., Brandon’s father, filed a petition for an emergency order of protection to bar defendant from contact with Brandon. The petition for an order of protection, though filed under the misdemeanor case number, was heard by a different judge.

¶ 6 On October 20, 2006, the judge handling the order-of-protection matter held a hearing on a plenary order of protection. The judge became concerned that defendant was not aware that the State could use his testimony against him in the criminal proceedings. As part of the ensuing discussion, the court advised defendant of his right to appointed counsel:

“If you choose to consult an attorney before proceeding, you have the right to do that. If you—and if you cannot afford one, as I know, in other cases, I’ve advised you, you have the right to fill out an affidavit of assets and liabilities to see if you qualified under the poverty guidelines. And if you cannot afford an attorney, then under those circumstances, an attorney would be appointed for you.”

¶ 7 Defendant’s trial, which was before a jury, did not take place until March 2008. At trial, the State presented evidence tending to show that Brandon was a runaway and that defendant had allowed Brandon to live with him, had condoned Brandon’s use of alcohol, and had allowed Brandon, who lacked a driver’s license, to drive a truck. Defendant testified that he had encountered Brandon when Brandon was homeless and that he did not allow Brandon to drink or drive.

¶ 8 On cross-examination, the State asked defendant about four text messages that it asserted he had sent to Brandon’s cell phone. Defendant admitted that he had sent one that said, “No truck for you tonight.” He denied sending others suggesting that Brandon should limit his driving, saying that Brandon had smelled like beer, and complaining that Brandon had left him “one hit” and that “it” had better be replaced. Defendant asked to look at the transcript of the messages, but the court denied the request. He then objected that he had not received the transcript during discovery. The court told the State to continue with the examination. The State called Brandon as a rebuttal witness; he testified to receiving the texts from defendant.

¶ 9 The jury found defendant guilty on both counts. Defendant then requested the appointment of the public defender, explaining that he felt out of his depth and that he no longer had any source of income. He further said that a federal court had found him to be indigent. The court refused to appoint counsel, noting that the presentencing report indicated that defendant had funds to sustain himself for two months.

¶ 10 The court sentenced defendant to concurrent terms of 24 months of probation with 180 days in jail. Defendant again requested counsel, and this time the court appointed the public defender. Counsel filed a motion for a new trial, asserting, among other things, that the State had not laid an adequate foundation for the introduction of the text messages. The motion did not raise either of the matters at issue in this appeal. The court denied the motion.

¶ 11 Defendant moved in this court for leave to file a late notice of appeal, and this court granted that motion. Defendant raises two issues. He argues primarily that he did not receive the admonishments that Rule 401(a) requires and that this was reversible as plain error. Secondarily, he argues that the State violated his Schmidt discovery rights by failing to tender the text-message transcript.

¶ 12 As we noted, the State and defendant agree that the admonishments were insufficient under Rule 401(a) and they agree that we can review the failure as reversible plain error. However, they disagree about the proper remedy. The State has not conceded any error with regard to the transcript.

¶ 13 II. ANALYSIS

¶ 14 We agree with the State and defendant that the admonitions to defendant were fatally defective and that this was reversible plain error. Rule 401(a) requires that the court advise a defendant of the nature of the charge, the minimum and maximum sentences possible, and the right to counsel, including the right of an indigent defendant to appointed counsel. “[S]ubstantial compliance with Rule 401(a) is required for an effective waiver of counsel.” Campbell, 224 Ill.2d at 84. Where a court has not advised a defendant of, among other things, the possible penalties for an offense, substantial compliance has not occurred. E.g., People v. Childs, 278 Ill.App.3d 65, 74 (1996). Because the right to counsel is fundamental, an appellate court may review a failure to substantially comply with Rule 401(a) under the plain-error doctrine despite a defendant’s failure to properly preserve such an error. People v. Vernon, 396 Ill.App.3d 145, 150 (2009); People v. Stoops, 313 Ill.App.3d 269, 273 (2000).

¶ 15 Here, we find in the record no time at which the court advised defendant of the nature of the charges or the minimum penalties. A judge, other than the trial judge, did advise defendant of the right to appointed counsel, but only in the related order-of-protection hearing and well after the proceedings began. Given the basic flaws in the admonishments, we agree that the court failed to substantially comply with Rule 401(a), such that vacatur of the convictions is necessary.

¶ 16 Having agreed that the convictions must be vacated, the parties dispute whether the case should be remanded for retrial. The dispute arises from the wording of Campbell, a supreme court case with facts similar to those here. In Campbell, the defendant was charged with a misdemeanor traffic offense, was not properly admonished of the right to counsel, was convicted without having counsel, and had completed his sentence by the time of the appellate decision. The Campbell court held that, in that case, retrial would serve no good purpose:

“Ordinarily, [the lack of admonishments] would compel the reversal of defendant’s conviction and a remand for a new trial. In this case, however, defendant has already discharged his sentence, and a new trial therefore would be neither equitable nor productive. Accordingly, we agree with the appellate court’s conclusion that defendant’s conviction must be vacated.” Campbell, 224 Ill.2d at 87–88.

Defendant argues that he is almost identically situated and that we should similarly conclude that retrial would serve no good purpose. The State implies that the circumstances in Campbell are distinguishable because of the disparity in the seriousness of the defendants’ offenses, pointing to the fact that the defendant in Campbell was convicted of driving with a suspended license. Id. at 82–83. We agree.

¶ 17 In light of Campbell, we are called upon to decide whether retrial in this case would be neither equitable nor productive. We conclude that retrial would be both equitable and productive.

¶ 18 We examine the quoted language from Campbell. Although we appreciate defendant’s position that the quoted passage could be read to say that the fact that the defendant had discharged his sentence directly implied that a new trial would be “neither equitable nor productive” (Id. at 87–88), such a reading is insensitive to the particular facts of that case, its context, and other language. The quoted passage contains the phrase, “In this case,” which, read in context, would limit the decision to its facts. We note that, generally, vacatur of a conviction is followed by remand for retrial, and we conclude that a decision to vacate a defendant’s conviction without remand for retrial must be limited to the facts of Campbell. We note further that the Campbell court’s reasoning was that retrial would be neither equitable nor productive. The court did not elaborate on which facts or circumstances it considered in concluding that retrial would be neither equitable nor productive, nor did it enunciate factors to guide future courts. In the absence of such guidance, we must look to the facts upon which the decision was based. In Campbell, the facts included both that the defendant served his complete sentence and that the charge at issue was a misdemeanor traffic offense—driving with a suspended licence.

¶ 19 We acknowledge that here defendant has completed his sentence but conclude that the charges in question are significantly different. We cannot reasonably apply Campbell‘s holding to criminal convictions of a very different character from the one involved in Campbell.

¶ 20 The Campbell defendant’s offense, driving with a suspended license, is, of course, a traffic offense and not one that inherently involves danger to the public. To the contrary, defendant here was charged with harboring a runaway and contributing to the delinquency of that minor, offenses that inherently involve harm and danger. Further, these offenses are directed against minors, who are most vulnerable and thus most in need of protection.

¶ 21 There is nothing inequitable in allowing the State the opportunity to obtain convictions for wrongdoing, even if the court is ultimately unable to impose any additional penalty. A criminal conviction means something. Its presence in a criminal history has value to the State in its role as prosecutor. The presence or absence of a criminal conviction may be a factor in charging a potential defendant. It may impact whether a plea agreement is offered and certainly will impact the nature of the offer. A prior conviction may be used in aggravation in a future sentencing hearing without placing upon the State the additional burden of producing a minor or other witness to testify. While these factors could apply to all convictions, we conclude that the implications noted here are enhanced with the severity of the offense at issue. In other words, the more severe the offense at issue, the greater the importance of the conviction. The existence of these possibilities makes retrial here both equitable and productive. Thus, we deem that Campbell is distinguishable on its facts and conclude that, because defendant was charged with contributing to the delinquency of a minor and harboring a runaway, remand for retrial is both equitable and productive.

¶ 22 We now turn to the State’s use of the text-message transcript, which, in the context of retrial, we treat as a question of the scope of Schmidt discovery. Because any retrial will not follow precisely the same path as the original trial, the precise manner in which the State introduced the content of the text-message transcript is no longer relevant. However, because defendant never saw the full transcript, whether he is entitled to its disclosure is not moot. The rule in Schmidt entitles a misdemeanor defendant to disclosure of “confession[s].” Schmidt, 56 Ill.2d at 575. Defendant implies that another supreme court case, People v. Williams, 87 Ill.2d 161, 165 (1981), effectively expanded that entitlement to include any “inculpatory statements.” We conclude that Williams should not be read as an expansion of Schmidt, and that, in any event, the transcript does not contain “inculpatory statements.”

¶ 23 Schmidt, although a 1974 decision, remains the standard citation for the sources of law under which a misdemeanor defendant is entitled to discovery. Per Schmidt, such a defendant is entitled to “a list of witnesses [citing what is now section 114–9(a) ], any confession of the defendant [citing what is now section 114–10(a), and] evidence negating the defendant’s guilt [citing Brady].” Schmidt, 56 Ill.2d at 575.

¶ 24 Section 114–10(a) provides:

“On motion of a defendant in any criminal case made prior to trial the court shall order the State to furnish the defendant with a copy of any written confession made to any law enforcement officer of this State or any other State and a list of the witnesses to its making and acknowledgment. If the defendant has made an oral confession a list of the witnesses to its making shall be furnished.” (Emphasis added.) 725 ILCS 5/114–10(a) (West 2008).

¶ 25 Most cases, including Schmidt itself, use the word from the statute, “confession,” to describe what the State must disclose (Schmidt, 56 Ill.2d at 575), and an entire line of cases specifically holds that the statute covers only confessions in the strict sense, and not merely admissions. For instance, in People v. Brown, 106 Ill.App.3d 1087, 1091 (1982), an appellate panel followed that narrow interpretation:

“In the present case * * * it is apparent that the statement in question was not a confession[,] which is ‘ “a voluntary acknowledgment of guilt after the perpetration of an offense, and it does not embrace mere statements or declarations of independent facts from which guilt may be inferred.” ‘ [Citation.] Here, section 114–10 does not apply since defendant’s statement that he threw a gun out of his window was not an acknowledgment of guilt for the crime of rape but was, at most, a declaration of an independent fact from which guilt could be inferred.”

¶ 26 Despite such precedent, and despite the language of Schmidt itself, defendant cites Williams, 87 Ill.2d at 165, for the proposition that all “inculpatory statements” fall within the scope of Schmidt discovery. Defendant’s reading of Williams is a natural, if superficial, reading of certain language in the decision. However, that reading of Williams -a case that was not even concerned with discovery of confessions or the like-is not a good statement of Illinois law.

¶ 27 At issue in Williams was whether the court could require the defendant in a misdemeanor case to disclose his witnesses. Williams, 87 Ill.2d at 164. In particular, the question was whether the holding in Schmidt left room for a trial court to order additional kinds of discovery at its own discretion. A discussion of the Schmidt court’s intent on that point produced the following passage, the passage on which defendant relies:

“In Schmidt, the court noted certain instances whereby discovery procedures would be allowed in nonfelony cases. These procedures include providing the defendant with a list of witnesses, the results of any breathalyzer test, any inculpatory statements made by the defendant, and any evidence which tends to negate the defendant’s guilt. [Citation.] These limited additional provisions arose under case law and statutes which we do not consider in conflict with the discovery rules. It is noteworthy that none of the allowable disclosures accord the State discovery rights in misdemeanor cases.” (Emphasis added.) Id. at 165.

Given the issue before the Williams court, the passage in question can be read only as a less-than-carefully worded attempt to summarize Schmidt. We therefore conclude that, in spite of the language in Williams, a misdemeanor defendant is entitled to disclosure of confessions.1 The text messages were not acknowledgments of guilt, and so were not confessions and thus not discoverable.

¶ 28 That said, even if we assumed that, under Williams, the State must disclose all “inculpatory statements,” we nevertheless would not conclude that such a rule would require the State to disclose the transcript of the text messages. In Illinois at least, the phrase “inculpatory statements” is not a term of art with a formal definition established by statute or precedent. Our own sense of the normal usage is that the phrase refers to postoffense statements of a defendant that, although not necessarily confessions in the strict sense, nevertheless tend to incriminate him or her. Thus, if a witness hears a perpetrator saying, “hand over the money or I’ll shoot you,” that, because it is not postoffense, is not an “inculpatory statement” according to ordinary usage. Our sense of the language is reinforced by learning that, in Louisiana, where a statute requires the state to disclose “inculpatory statements,” the definition of an inculpatory statement is “an out of court admission of incriminating facts made by the defendant after the crime has been committed.” State v. Curington, 09–867, at 9 (La.App. 5 Cir. 10/26/10); 51 So.3d 764. We deem the text messages to be concurrent with the commission of the alleged offenses rather than postoffense admissions. Thus, even under the looser standard advocated by defendant, the text-message transcript is not discoverable.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we vacate defendant’s convictions and remand the matter for proceedings consistent with this decision.

¶ 31 Vacated and remanded.

¶ 33 I write to address several points.

¶ 34 First, the majority’s analysis conflates the holding of Campbell with its rationale. The application of the holding of Campbell to this case is inapt because the facts are substantially dissimilar. The majority’s suggestion that the charges in this case are more serious than the offense in Campbell is questionable and essentially immaterial. The seriousness of the offense is of little importance if, as in Campbell, an enhanced punishment was provided for a subsequent offense.

¶ 35 Second, I do not agree with all the reasons given by the majority as to why the State has a valid reason to retry the cause. The analysis regarding the claim that the offenses charged involve inherently harmful or dangerous activities does not apply to the charge of harboring a runaway. In fact, defendant claimed that he was harboring the minor because the minor was being physically abused and neglected by a parent. Under the statute, this mitigating and exculpatory factor would not preclude conviction. However, the statute allows an exemption for certain entities that are reasonably presumed to be reliable harborers of minors, such as youth emergency shelters and agencies providing crisis intervention services. See 720 ILCS 5/10–6(a) (West 2008). Further, proof of the infliction of harm, danger, or injury to the minor is not required in order to establish the offense. It is difficult to understand how harm, danger, or injury is deemed important for reprosecution when it is not an element of the offense. The State could achieve some of the goals cited without obtaining a conviction. However, a conviction would make it simpler for the court to punish any future acts that would endanger minors, by taking judicial notice of the conviction. The State did not argue that the conviction would require future restrictions on defendant. Were defendant, upon conviction, required to fulfill duties and obligations in futoro, the need for a conviction to impose these conditions would be manifest. I concur in remanding for retrial based upon the particular facts in this case. The reasons given by the State reasonably outweigh the costs of further prosecution. Additionally, while case law has indicated that the State has been known to vindictively reprosecute defendants after vacated or reversed convictions (see People v. Brexton, 405 Ill.App.3d 989 (2010)), the record does not indicate such a motive here.

¶ 36 Third, the general principle that a defendant may be retried so long as jeopardy has not attached would apply here, and Campbell would not alter the application of this principle to this case:

“At common law a convicted person could not obtain a new trial by appeal except in certain narrow instances. As this harsh rule was discarded courts and legislatures provided that if a defendant obtained the reversal of a conviction by his own appeal he could be tried again for the same offense. Most courts regarded the new trial as a second jeopardy but justified this on the ground that the appellant had ‘waived’ his plea of former jeopardy by asking that the conviction be set aside. Other courts viewed the second trial as continuing the same jeopardy which had attached at the first trial by reasoning that jeopardy did not come to an end until the accused was acquitted or his conviction became final. But whatever the rationalization, this Court has also held that a defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal.” Green v. United States, 355 U.S. 184, 189 (1957).

¶ 37 Finally, defendant’s sentence has been satisfied. It no longer pends. It is completed. Thus, any sentence upon reconviction would be a second punishment for the same event. See People v. Miller, 238 Ill.2d 161, 174 (2010) (“The double jeopardy clause protects against, inter alia, multiple punishments for the same offense.”). Were defendant to be convicted after a new trial, the trial court may only sentence defendant up to the same sentence imposed before and then declare it satisfied and discharged.

FOOTNOTES

1. We do not here address the issue of whether, per section 114–10(a), the only disclosable confessions are those “made to any law enforcement officer of this State” (725 ILCS 5/114–10(a) (West 2008)), or whether, per a literal reading of Schmidt, the State must disclose any confession.

Presiding Justice JORGENSEN delivered the judgment of the court, with opinion:

Justice BURKE concurred in the judgment and opinion.Justice McLAREN specially concurred, with opinion.

defense case law:

 

MEMORANDUM OF LAW – EXCEPTIONS TO SCHMIDT DISCOVERY – WRITTEN BY DR. LINDA LORINCZ SHELTON (PARALEGAL)

 

Discovery is limited in misdemeanor cases as guided by People v. Schmidt 56 Ill. 2d 572. However, in People v. Williams, (4th Dist. 1980), 90 Ill. App. 3d 158, 45 Ill. Dec. 785, 413 N.E.2d 118, United States v. Nixon, (1974) 418 U.S. 683, 945 Ct. 3090, 41 L.ed.2d 1039, People v. West, (1981), 102 Ill. App. 3d 50, 57 Ill. Dec. 701, 429 N.E.2d 599, and People v. Harris, 91 Ill. App. 3d 1, 46 Ill. Dec. 256 it was decided that courts have inherent discretionary authority to order discovery in a non-felony case for purpose of seeing that criminal trial process is fair and achieves the goal of ascertaining the truth. It was also held that disobeyance of a court order to comply with a valid subpoena is not proper manner in which to test scope of subpoena but, rather, any claim that subpoena process is being abused should be presented to trial court in motion to quash.

 

In these cases tests have been adopted which allow pretrial discovery under certain limited conditions under the powers of judicial discretion. Under the suggested tests to be used for deciding if an exception to the Schmidt discovery rules should be granted:

 

“… a party must show (1) the material sought is evidentiary and relevant; (2) the material sought is not otherwise reasonably procurable by the exercise of due diligence in advance of trial; (3) the moving party cannot properly prepare for trial without such production and the failure to obtain the materials sought may tend to unreasonably delay the trial; and (4) the application is made in good faith and in is not intended as a general fishing expedition.”(Ibid)

 

Considering the relevance of evidence, there is other case law that provides cause for appeal if the subpoena of and use of evidence by the defense at trial is prohibited by the court:

 

“Evidence concerning acts which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances is admissible.” People v. Olivias, 354 N.E. 2d 242, 41 Ill. App. 3d 146.

 

“For suppression of evidence to involve a violation of right to due process, it must be shown that he evidence was suppressed after a request for it by defendant, that the evidence was favorable to him and that it was material.” People v. Jordan, 69 Ill. Dec. 777, 448 N.E. 2d 237, 114 Ill. App. 3d 16, affirmed in part, reversed in part 82 Ill. Dec. 925, 469 N.E.2d 569, 103 Ill. 2 192, habeas corpus dismissed by U.S. ex rel. Jordan v. Detella, 1995 WL 76913.

 

“Evidence having a natural tendency to establish the facts in controversy in a criminal prosecution should be admitted.” People v. Jenko, 102 N.E. 2d 783, 410 Ill. 478.

“Defendant is entitled to all reasonable opportunities to present evidence which might tend to create doubt as to his guilt.” People v. Johnson, 355 N.E. 2d 699, 42 Ill. App. 3d 425.

 

It would be a violation of Defendant’s due process rights if she was denied the use of relevant evidence and witnesses pertaining to affirmative defenses which are material and favorable to the Defendant. The above case law suggests that a judge has the discretionary authority to order recalcitrant witnesses for the defense to come to court and submit to interview by defense counsel so that defendant may prepare defense, and even to order them to submit to interview by deposition.

 

ILLINOIS OFFICIAL REPORTS

Supreme Court

People v. Kladis, 2011 IL 110920

Caption in Supreme

Court:

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARINA

KLADIS, Appellee.

Docket No. 110920

Filed December 30, 2011

Held

(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)

A squad-car video recording of a misdemeanor DUI arrest was discoverable, and there was no abuse of discretion in sanctioning its destruction, subsequent to a timely request to produce, by barring the arresting officer’s testimony as to what was on the tape.

Decision Under Review

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. William H.

Wise, Judge, presiding.

Judgment Affirmed; cause remanded.

Counsel on Appeal Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins and John E. Nowak, Assistant State’s Attorneys, of counsel), for the People.

Edward M. Maloney, of Ahern, Maloney, Moran & Block, of Skokie, Louis A. Berns, of Favil David Berns & Associates, LLC, of Northlake, Robert B. Marcus and Michael Maksimovich, of Lyons, and Katie M. Anderson, of Chicago (Ralph Ruebner, of Chicago, of counsel), and Danielle L. Berns and Nikki G. Ashmore, law students, for appellee.

Justices JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Marina Kladis, was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2006)). She requested that the State produce the video recording of the stop made by the camera located in the arresting officer’s vehicle. After the State destroyed the recording, the circuit court of Cook County granted defendant’s motion for sanctions and barred the State from introducing testimony concerning what was contained on the videotape. The State filed a certificate of substantial impairment and a notice of appeal. The appellate court affirmed. 403 Ill. App. 3d 99. We granted the State’s petition for leave to appeal and now affirm the judgment of the appellate court.

¶ 2 BACKGROUND

¶ 3 On May 3, 2008, defendant was arrested for DUI by Northlake police officer Phillip Gaske. On May 8, 2008–five days after her arrest and 25 days prior to the first court date on June 3, 2008–defendant filed and hand delivered to the State’s Attorney’s office a petition to rescind her statutory summary license suspension. Defendant also filed and delivered on the same date a document captioned “Notice to Produce at Summary Suspension Hearing.”

The notice was premised upon our Rule 237 (Ill. S. Ct. R. 237 (eff. July 1, 2005)) and requested that at the first court date the State produce the arresting officer along with copies of various reports and “any and all video tapes of defendant” while she was in custody.

¶ 4 On June 3, 2008, at approximately 1:30 p.m., the parties appeared in court for the first -2- time. 1 Because the State had not yet produced the materials defendant had previously requested, defense counsel made an oral motion for discovery, pursuant to People v. Schmidt, 56 Ill. 2d 572 (1974), which included the videotape. Because the State claimed that it did not know whether such a tape existed, Officer Gaske–who was present for the hearing–was questioned. Gaske confirmed that his squad car had a camera mounted to the windshield which had recorded his encounter with defendant.

¶ 5 The State thereafter agreed to produce all the requested materials–including the videotape–to defense counsel.2 Later in the day on June 3, the State mailed written discovery to counsel and a request for the video recording to the Northlake police department. By agreement, the hearing on defendant’s petition to rescind the statutory summary suspension of her driver’s license was entered and continued to June 17, 2008.

¶ 6 When the parties returned to court on that date, the State tendered to defense counsel a two-page business record from the Northlake police department. This document stated that pursuant to departmental policy, video recordings are automatically purged within 30 days of arrest, and that the tape requested by defendant had been erased at 4:24 a.m. on June 3, 2008, just hours before the parties first appeared in court. Because the requested evidence had been destroyed, and in view of the fact that, but for its absence, defendant would have been ready to proceed on her petition to rescind the statutory summary suspension, the court granted her leave to file a written motion for sanctions against the State.3 The court scheduled a hearing on the sanctions motion for June 26, 2008, and further ordered that the hearing on the petition to rescind the statutory summary suspension would proceed immediately after the court ruled on the motion for sanctions.

¶ 7 Upon their return to court on June 26, the parties discovered that the judge handling this case had been transferred, and they appeared before a different judge who was unfamiliar with what had previously transpired. The parties stipulated to the facts in the case up to that point, and then engaged in brief argument on defendant’s sanctions motion.

¶ 8 The court found that the “Notice to Produce” which accompanied defendant’s petition to rescind her statutory summary suspension placed the State on clear notice that she wished to have a copy of the video recording at the first court date–a fact which the State did not

1No transcripts exist for the June 3, 2008, court date or for the proceedings subsequently held on June 17, 2008. However, during a court hearing on June 26, 2008, the parties stipulated as to what transpired on those earlier dates.

2We note that at no time did the State dispute that it received defendant’s Rule 237 request for production of the video recording, nor did the State object to defendant’s oral Schmidt motion to preserve and produce the same recording referenced in her earlier request for production. The record, therefore, unquestionably establishes that the State was fully on notice regarding defendant’s repeated requests to obtain the recording, a fact supported by its ready agreement during this hearing to produce it.

3This motion, which was premised on our Rule 219 (Ill. S. Ct. R. 219 (eff. July 1, 2002)), was filed on June 20, 2008.

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dispute. The State, however, did nothing in response. The court observed that the State “could have called the police department and got the tape prior to the time that it ran out” or it “could have filed an answer *** stating it’s not our obligation [to produce the tape] yet because we don’t deem this to be a discovery motion *** [because it includes] things requested in here that we don’t have to supply to you.”

¶ 9 Noting that this was “the third case I have had like this in three weeks” where a defendant asked the State to preserve a video recording and it was destroyed, the court found the recording of defendant’s traffic stop to be “an important piece of evidence” and held that imposition of a sanction against the State for its destruction was proper. The court determined that it would bar the State from introducing testimony relating to what was contained on the tape. However, because no one had seen the recording, defendant called Officer Gaske to establish its contents and thereby clarify the scope of the court’s ruling.

¶ 10 Gaske testified that the in-car video system begins recording five seconds prior to the activation of the emergency lights. At that time, the microphone he wears is also activated.4

According to Gaske, the tape would have captured the following: images of defendant’s car five seconds prior to the stop; the manner in which defendant pulled over and curbed her vehicle; defendant’s actions when he approached her vehicle; the manner in which defendant opened her car door and exited her vehicle; and defendant’s performance of the field sobriety tests. Gaske stated that he turned off the emergency lights prior to transporting defendant to the station, and it was then that the recording ended.

¶ 11 The court then clarified its sanction ruling, holding that “[t]he video may not be used for any purpose from five seconds prior to the lights going on at the time that the defendant was stopped getting out of the car until she was taken away via the arrest.” The court specified, however, that any driving or actions of defendant prior to this were admissible, as were any of her actions after she was placed under arrest.

¶ 12 The court then proceeded to conduct the hearing on defendant’s petition for recision of the statutory summary suspension of her driver’s license. Although defendant answered ready, the State requested leave to immediately file a notice of appeal of the sanctions ruling.

However, because the State did not ask the court to certify an interlocutory appeal on the sanctions issue and because there was no final judgment in the statutory summary suspension matter at that time, the State’s request was denied.

¶ 13 The hearing on defendant’s petition proceeded. Based upon the evidence presented, the court held that Officer Gaske had no probable cause to stop, detain and arrest defendant.

Accordingly, defendant’s petition to rescind the statutory summary suspension of her driver’s license was granted.

¶ 14 Defense counsel then made an oral motion to quash arrest and suppress evidence in After defendant’s arrest, Gaske realized that 4 the microphone was not on, and believed that the recording of that encounter would not have had audio.

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defendant’s criminal DUI case. The court instructed counsel to file a written pleading5 and the parties set a return date by agreement. The State then renewed its request for leave to file an appeal, which was granted. The State thereafter filed an appeal of the sanctions ruling in the statutory summary suspension case. However, it later voluntarily dismissed that action.

Accordingly, that ruling is not at issue here.

¶ 15 The parties returned on September 2, 2008. The court inquired of the State whether it wished to “relitigate the sanctions for purposes of trial.” The State responded that “[t]here is going to be a lot of the same testimony, and we were here, basically, for arguments and for ruling [on] the criminal case at hand.” The court then granted defendant’s motion for sanctions in the DUI case, stating that its ruling would be “exactly the same” as on June 26.

The court held that “the video may not be used, or any testimony regarding what is on the video pertaining to just before the officer stopped the defendant and the time that the defendant was placed in the squad car, which would mean anything that happened on the street prior to her being placed in the squad car.” As it had in the summary suspension matter, the court again clarified that any relevant evidence of defendant’s conduct which occurred before and after the recording would be admissible.

¶ 16 After the court had ruled, the State maintained that the court’s decision on the sanctions motion substantially impaired its ability to prosecute defendant. Based upon the court’s understanding of the State’s position, it granted the State leave to file a certificate of substantial impairment and a notice of appeal of the sanction order.

¶ 17 The appellate court upheld the sanctions imposed by the trial court in the DUI case. 403 Ill. App. 3d 99. Applying Schmidt, the court held that the video recording was discoverable, and that the State was placed on notice that it should not be destroyed. Nevertheless, the State took no action in response to defendant’s discovery request, which set the stage for the deletion of the recording. The appellate court further determined that the sanction imposed by the trial court was proportionate to the State’s discovery violation and that there was no abuse of discretion.

¶ 18 We granted the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)).

¶ 19 ANALYSIS

¶ 20 The State does not dispute that it was placed on notice by defendant to produce the recording of her stop and arrest in the civil statutory summary suspension proceedings. The State also does not contest that its inaction resulted in the destruction of this recording, and, in fact, concedes that the sanction was proper in that matter.

¶ 21 The State does contend, however, that its conduct has no import with respect to defendant’s criminal DUI case. Asserting that discovery in misdemeanor actions is strictly limited by our decision in People v. Schmidt, 56 Ill. 2d 572 (1974), and noting that video recordings are not included within Schmidt’s list of discoverable items, the State maintains

5Defendant filed her “Motion to Quash Arrest and Suppress Evidence Illegally Seized” on July 10, 2008.

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that it had no obligation to produce the recording. The State therefore concludes that its failure to preserve the recording was not sanctionable in the DUI case and the trial court abused its discretion by doing so. We disagree.

¶ 22 A. Discovery Violation

¶ 23 The State contends that because the trial court had no discretion to order discovery in a misdemeanor case beyond the limited areas set forth in People v. Schmidt, 56 Ill. 2d 572 (1974), it therefore erred in imposing sanctions against the State. A trial court’s decision to impose sanctions is reviewed under an abuse of discretion standard. People v. Ramsey, 239 Ill. 2d 342, 429 (2010). A trial court abuses its discretion when its decision is “fanciful, arbitrary, or unreasonable to the degree that no reasonable person would agree with it.” People v. Ortega, 209 Ill. 2d 354, 359 (2004).

¶ 24 We must first determine whether the State’s failure to produce and preserve the video recording of the stop and arrest in defendant’s misdemeanor DUI case constitutes a discovery violation. This court addressed the scope of discovery required in a misdemeanor case nearly 40 years ago in People v. Schmidt, 56 Ill. 2d 572 (1974). There, the defendant was charged with a misdemeanor DUI. She sought pretrial discovery of various reports, including a “Driving While Intoxicated Arrest Report,” which the State refused to produce. Id. at 573.

¶ 25 In holding that the requested report should have been tendered to the defendant, we observed that it was only one of a number of items a misdemeanor defendant may discover:

“The State is required to furnish defendants in misdemeanor cases with a list of witnesses (Ill. Rev. Stat. 1971, ch. 38, par. 114-9), any confession of the defendant (Ill. Rev. Stat. 1971, ch. 38, par. 114-10), evidence negating the defendant’s guilt (Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194), and, in this particular case, the results of the breathalyzer test (Ill. Rev. Stat. 1971, ch. 95½, par. 11-501(g)). Additionally, the report which the defendant seeks will be available at trial for use in impeachment of the prosecution witness who prepared it. (People v. Cagle, 41 Ill. 2d 528.)” Id. at 575.

This ruling was based on “the discovery provided [for] by case law and statute” at that time, and distinguished its limited scope from the broader discovery available for felony cases under our Rule 411. Id. at 574-75. Our decision to limit discovery in misdemeanor matters was based on “our awareness of the very substantial volume of less serious cases and the impact upon their expeditious disposition” if broader discovery were required. Id. We concluded that there was “no reason to depart from th[e] view” that the scope of discoverable items noted in that opinion was “adequate for the lesser offenses” at the time of that ruling. Id. at 575.

¶ 26 The State misapprehends our decision in Schmidt and interprets it in a far too narrow manner. Schmidt determined the scope of discovery in misdemeanor cases by considering relevant decisions, statutes, and custom and practice as it existed in 1974. From this survey, the Schmidt court drew together a number of items which share important evidentiary value and are relevant to those charged with offenses in crafting a defense. Indeed, our case law with respect to discovery at that time was clear. We previously held that pretrial discovery

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“presupposes a range of relevance and materiality which includes not only what is admissible at the trial, but also that which leads to what is admissible.” Krupp v. Chicago Transit Authority, 8 Ill. 2d 37, 41 (1956). The State overlooks the nature and relevancy of these discovery items, instead focusing on the incorrect concept that Schmidt set forth a rigid list which it believes should remain static and not take into account the fundamental changes which have occurred in law and society since that ruling.

¶ 27 Relevancy is “determined by reference to the issues, for generally, something is relevant if it tends to prove or disprove something in issue.” Bauter v. Reding, 68 Ill. App. 3d 171, 175 (1979). In the nearly four decades since we decided Schmidt, video recordings made by in-squad car cameras in misdemeanor DUI cases have become as relevant to the issue of proving or disproving guilt as the materials specifically mentioned in Schmidt. As such, allowing their discovery furthers the objectives of pretrial discovery to “enhance the truthseeking process, to enable attorneys to better prepare for trial, to eliminate surprise and to promote an expeditious and final determination of controversies in accordance with the substantive rights of the parties.” D.C. v. S.A., 178 Ill. 2d 551, 561 (1997).

¶ 28 Since the time of Schmidt, the use of video recordings as evidence at trial has become a common practice to allow a defendant the opportunity to present an effective defense and to further the truth-seeking process. We recently reaffirmed the general admissibility of such evidence (People v. Taylor, 2011 IL 110067), and courts across the country are increasingly relying on video recordings to present an objective view of the facts in a case. See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (relying on a squad car video recording, Supreme Court reversed lower court’s denial of summary judgment on claim against the officer for the use of excessive force; Court found that a videotape capturing the events in question clearly contradicted the version of the story told by the driver and adopted by the court of appeals, and stated that the court of appeals should have viewed the facts in the light depicted by the videotape); United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011) (reversing the district court’s denial of the defendant’s motion to suppress on the basis that the officer’s testimony at the suppression hearing was clearly contradicted by his contemporaneous statements captured on the squad-car video recording).

¶ 29 In sum, we conclude that the routine video recording of traffic stops has now become an integral part of those encounters, objectively documenting what takes place by capturing the conduct and the words of both parties. We therefore hold that this important and relevant evidence falls within the scope of materials held to be discoverable under Schmidt. We therefore clarify that under Schmidt, these video recordings are discoverable in misdemeanor DUI cases.

¶ 30 This conclusion is supported by several recent legislative enactments regarding recordings of traffic stops made by law enforcement officers. Although the passage of these laws occurred subsequent to defendant’s arrest in this case, the great importance placed by the General Assembly upon the production and preservation of video recordings made by squad car cameras during law enforcement actions confirms our recognition of their significant evidentiary value and relevance.

¶ 31 In late 2008 our legislature mandated that Illinois State Police squad cars be equipped

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with recording equipment. 20 ILCS 2610/30(b) (West 2008) (Pub. Act 95-1009 (eff. Dec. 15, 2008)). The law specified that both video and audio must be captured (id.) and required that these recordings be maintained for a storage period of at least 90 days before being destroyed. 20 ILCS 2610/30(f) (West 2008).

¶ 32 The following year, the General Assembly clarified and broadened the production and preservation safeguards for police recordings. It established the general rule that when any law enforcement agency makes an in-squad video and audio recording in connection with either law enforcement or investigative duties, that recording shall be retained for a minimum period of 90 days. 720 ILCS 5/14-3(h-15) (West 2010) (Pub. Act 96-670 (eff. Aug. 25, 2009)). Significantly, the legislature has also mandated an extended period of storage for certain recordings. Where “the recordings *** are made as a part of an arrest or *** are deemed evidence in any criminal, civil, or administrative proceeding” they cannot be destroyed except “upon a final disposition and an order from the court.” Id. We note that this heightened protection is triggered either where, as here, an arrest occurred or where the recording is considered to be evidence in any criminal, civil or administrative proceeding.

Significantly, the General Assembly placed no restriction on this latter factor, encompassing all proceedings.

¶ 33 The transcript of the debates of the 2009 enactment reveals that the General Assembly intended that the routine recording of traffic stops by squad car cameras would be of benefit to both citizens and law enforcement agencies by providing an objective record of what occurred during the encounter. This is illustrated by remarks made by the sponsor of this provision, who explained that “[i]t’s a tool for law enforcement, but I also believe it is a tool for the citizens, too, because then there is actual proof of what was said or what was done.

So I think it’s a protection for both.” 96th Ill. Gen. Assem., House Proceedings, April 2, 2009, at 84-85 (statements of Representative Dugan).

¶ 34 These enactments express the clear legislative intent that the purpose of recording traffic stops and preserving these recordings for later production is to assist in the truth-seeking process by providing objective evidence of what occurred between the law enforcement officer and the citizen. As noted in the legislative history, the General Assembly enacted these laws with the view that these recordings could be useful to both the State and the defendant. If the recording reflects the defendant committing an offense, the State could use it to cement his or her guilt. The reverse is also true: if the recording does not clearly reflect commission of a crime, the defendant could use it in support of his or her defense. In either instance, the recording assists the trier of fact in seeking the truth and at arriving at a just result.

¶ 35 The State contends, however, that requiring discovery of video recordings in misdemeanor DUI cases is unduly burdensome and will delay the judicial process. Noting that the limited scope of misdemeanor discovery set forth in Schmidt was partially driven by consideration of the large number of misdemeanor actions and the desire to efficiently move them through the system, the State contends these same considerations apply with equal force today. We believe that the particular facts of this case undermine the State’s general assertions.

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¶ 36 The record indicates that defendant’s request was not one that was unique in any way. The State never formally objected to the request, nor did it contend that it fell outside of Schmidt. Further, we note that during oral argument before this court, counsel for the State was asked to comment on the fact that the State had readily agreed to produce and preserve the videotape in this matter. He responded: “We have no problem tendering these videos in a particular case. If the defendant asks for it, and it is available, we will do so. *** It’s just a matter of collegiality.”

¶ 37 The video recording is relevant and admissible evidence because it reveals what transpired during the traffic stop which serves to further the truth-seeking function of a trial.

This evidence may be helpful to both the defendant and the State. Indeed, the flow of cases actually going to trial may be eased upon allowing defendants and their counsel to review these recordings: those which reflect events favorable to the State may result in defendants willing to enter pleas which they otherwise may not have contemplated. This also advances the purpose of our DUI statutes to ensure that our roads remain safe from impaired drivers.

¶ 38 We therefore agree with the courts below that upon receiving the written Rule 237 notice to produce the video recording five days after defendant was arrested–and 25 days before it was destroyed–the State was placed on notice and should have taken appropriate steps to ensure that it was preserved.6

¶ 39 In sum, we hold that the trial court did not abuse its discretion in finding that the video recording of defendant’s stop and arrest was subject to discovery in her misdemeanor DUI case and that the State committed a discovery violation by allowing the destruction of the recording. We next address the question of whether the sanction imposed by the trial court was appropriate for the discovery violation.

¶ 40 B. Reasonableness of the Discovery Sanction

¶ 41 The State contends that the discovery sanction imposed by the trial court was too harsh for the circumstances presented in this case and, therefore, amounted to an abuse of discretion. According to the State, the sanction was “effectively a dismissal of the charges as it prevented the officer from testifying about all of the relevant facts showing that defendant was driving under the influence of alcohol.” We reject the State’s contentions.

¶ 42 The correct sanction to be applied for a discovery violation is a decision appropriately left to the discretion of the trial court, and its judgment shall be given great weight. People v. Morgan, 112 Ill. 2d 111, 135 (1986). The trial court is in the best position to determine an appropriate sanction based upon the effect the discovery violation will have upon the Although the Rule 237 notice was filed in the civil 6 summary suspension proceeding, the

State explained at oral argument that the summary suspension proceeding and the criminal DUI case proceed in tandem, before the same judge and with the same State’s Attorneys handling both matters.

Although the better practice would be for the defendant to request production of the video recording in both proceedings, we have no doubt that in this case the State was aware of the need to preserve the recording. Indeed, defendant also made an oral motion for discovery pursuant to Schmidt during the proceedings on the first court date.

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defendant. People v. Koutsakis, 255 Ill. App. 3d 306, 314 (1993). As stated, an abuse of discretion exists only where the decision of the trial court is fanciful, arbitrary, or unreasonable to the degree that no reasonable person would take the view adopted by the trial court. Ortega, 209 Ill. 2d at 359.

¶ 43 The record clearly establishes that the discovery sanction imposed by the trial court did not preclude the State from prosecuting defendant. The court’s sanction ruling was narrowly tailored, and provided that “[t]he video may not be used for any purpose from five seconds prior to the lights going on at the time that the defendant was stopped getting out of the car until she was taken away via the arrest.” Notably, the court also clearly specified that any driving or actions of defendant prior to the start of the recording were admissible, as were any of her actions after she was placed under arrest.

¶ 44 Accordingly, under the court’s ruling, Officer Gaske was not barred from testifying; rather, his testimony was limited to observations regarding events other than those captured on the purged recording. Thus, the State could have questioned Officer Gaske concerning any erratic driving on the part of defendant prior to her being stopped. Gaske could also have been questioned about defendant’s behavior after he deactivated the lights and placed her in his squad car to transport her back to the police station, which occurred immediately after defendant performed the field sobriety tests. Gaske could have offered any observations of indications of intoxication at that time, including whether defendant exhibited bloodshot and glassy eyes, slurred speech or an odor of alcohol. He also could have testified to any problems with balance or dexterity defendant may have had as she arrived at the police station for processing. Thus, contrary to the State’s assertion that the court’s sanction “removed all possible proof that defendant had been driving under the influence of alcohol,” the State could have questioned Gaske on any of these points. It declined to do so.

¶ 45 As stated, the authority to impose reasonable sanctions for discovery violations lies within the sound discretion of the trial court. Here, the court properly exercised its discretion in choosing from the spectrum of available options and narrowly tailoring its sanction to bar the State from introducing testimony regarding what was contained in the video recording.

Contrary to the State’s assertion that the sanction was disproportionate to the discovery violation because it “excluded all evidence that defendant was guilty beyond a reasonable doubt,” the record establishes that the State made the conscious decision not to participate in the trial and to forgo the opportunities available to present evidence apart from that which was barred under the sanction.

¶ 46 Accordingly, we hold that the trial court did not abuse its discretion in imposing this sanction against the State. We therefore affirm the sanction order entered by the trial court against the State. We remand this cause to the trial court for further proceedings on the State’s prosecution of defendant’s misdemeanor DUI case.

¶ 47 CONCLUSION

¶ 48 For the foregoing reasons, the judgment of the appellate court is affirmed. This cause is remanded to the circuit court for further proceedings consistent with this opinion.

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¶ 49 Affirmed;

¶ 50 cause remanded.

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If you want to represent yourself,

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5 Comments »

  1. glad I found this site. just wonder if you have any experience in writing and the procedures for a Bill of Particulars and what needs to be done with the court to get it dismissed after they do not respond. to a Bill of Particulars?

    thanks Ann

    Comment by Ann Anderson — January 26, 2011 @ 1:11 am

  2. Please help . The police entered my garage which is a part of my home forcibly entered and arrested me for disorderly conduct. I dont know if this is a misdemeanor or not. However, no miranda, warrant or cause or evidence of disorder conduct. I never left my home. I told a woman that one cannot allow dog’s to poop on common property. She started to scream. I closed my door.Then her mo. & another woman trespassed on my property ringing and banging on my door. I opened it and they started screaming. I told them if they did not stop I would close the door. 1 left the mother stayed. She was appeased.Then her daug & a man flaying & screaming running down the middle of the street . I closed my garage door. They must have called the police. I dont know what they said but the only one disorderly was the woman. The are retaliating bec. they dont want me to call in complaints. Should I file a complaint with the internal affairs or wait until I defend myself. I dont want my name known bec of the pending court

    Ginny

    Comment by ginny — July 21, 2011 @ 6:54 pm

  3. Very quickly this website will be famous among all blog viewers, due to it’s nice content

    Comment by android tablet apps how to download — June 29, 2013 @ 11:32 pm

  4. Useful writing , Coincidentally , people need to fill out a a form , We used a template form here or http://www.nh.gov.

    [This post refers to forms only regarding New Hampshire state court form regarding verification of indigency- statement of assets. LS]

    Comment by Elie Fabs — January 10, 2016 @ 2:59 pm


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