NO. 4-04-0550 Filed: 2/1/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
THAD L. JOHNSON, ) No. 03CF430
Defendant-Appellant. )
) Honorable
) Scott H. Walden,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
In September 2003, the State charged defendant, Thad L.
Johnson, and a codefendant by information with unlawful posses-
sion of a controlled substance. 720 ILCS 570/402(c) (West 2002).
The information alleged they both unlawfully possessed less than
five grams of a substance containing methamphetamine.
On November 20, 2003, defendant filed a motion to
suppress evidence and quash his arrest, alleging the stop,
detention, and search of defendant were illegal. The trial court
set a hearing on defendant's motion for December 19, 2003, but
continued it until January 9, 2004 (the date of trial), upon the
State's request due to the unavailability of witnesses. A joint
proceeding on defendant's motion to suppress, codefendant's
motion to suppress, and both defendant's and codefendant's bench
trials was held. Both defendant and codefendant testified but
only in regard to their motions to suppress, not on the issue of
guilt. The court denied the motions to suppress and found both
defendants guilty. On April 14, 2004, the trial court sentenced
defendant to 24 months' probation. On appeal, defendant argues
the trial court did not have the authority to hold a joint
suppression hearing and bench trial and thus "the order denying
the motion is void and a nullity." Defendant further contends
that since the conviction was based on evidence that was the
subject of the motion to suppress, the conviction is also a
nullity. We affirm.
The following exchange occurred at the beginning of the
January 9, 2004, proceeding:
"THE COURT: The cause was originally
scheduled for hearing on [m]otion to
[s]uppress which both defendant's [sic] have
now filed.
It is my understanding the parties are
wishing to expand the scope of today's hear-
ing. Is that correct?
MR. FARHA [(prosecutor)]: Your Honor, it
is my understanding--and the People are will-
ing to do so. I think, first of all, both
defendants would be willing to enter into
waivers of right to jury trial; we would
proceed with a trial simultaneously with both
defendants. There is [sic] not any mutually
exclusive defenses that would have reason to
cause a severance. It is also my understand-
ing we would proceed also at the same time on
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the [m]otion to [s]uppress. The People would
present testimony. Even though we do not
have the burden, we would go forward, and we
have our witnesses here. There was a state-
ment made by Ms. Anderson as to ownership of
a purse where some of the evidence was found.
I don't believe the motion entails suppress-
ing the statement per se other than question-
ing the stop and legality of the contact with
the police.
THE COURT: I assume though, if the
[m]otion to [s]uppress were granted with
respect--
MR. FARHA: Yes, Your Honor.
THE COURT: --the stuff, that would also
apply to the statements.
MR. FARHA: Yes, Your Honor. But I don't
think it was specifically addressed toward
the statement.
THE COURT: Correct, Mr. Downey?
MR. DOWNEY [(defense counsel)]: Judge,
it is correct. And we're going to tender to
the [c]ourt a waiver of jury by my client,
Thad Johnson. Since this is going to be a
joint [t]rial/[m]otion to [s]uppress, the
State is going to introduce evidence; we are
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not going to object every time. They have to
present evidence in order to present their
case.
THE COURT: So, we'll note a continuing
objection.
MR: DOWNEY: Note a continuing objection
so as not to interrupt the proceeding."
The State presented its witnesses. Then defendant and
codefendant both testified but only for purposes of the suppres-
sion hearing. The trial court heard arguments on defendant's and
codefendant's respective motions to suppress and denied the
motions.
On January 15, 2004, following arguments on the issue
of guilt or innocence, the trial court found codefendant guilty
and took the matter of defendant's guilt under advisement.
In a written order, file-stamped January 20, 2004, the
trial court found defendant guilty. The court stated it did not
consider defendant's or codefendant's testimony at the hearing on
their motions to suppress as evidence in defendant's bench trial
and that this was possible because it was a bench trial, not a
jury trial. The court sentenced defendant as stated and this
appeal followed.
Defendant argues the standard of review is de novo.
The State does not dispute this.
Section 114-12 of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/114-12 (West 2002)) governs motions to
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suppress illegally seized evidence. We note section 114-12 is
silent on the issue of when a hearing on a pretrial motion to
suppress must be held, but it does state the following, in
pertinent part:
"The motion shall be made before trial
unless opportunity therefor did not exist or
the defendant was not aware of the grounds
for the motion. If the motion is made during
trial, and the court determines that the
motion is not untimely, and the court con-
ducts a hearing on the merits and enters an
order suppressing the evidence, the court
shall terminate the trial with respect to
every defendant who was a party to the hear-
ing and who was within the scope of the order
of suppression, without further proceedings,
unless the State files a written notice that
there will be no interlocutory appeal from
such order of suppression." 725 ILCS 5/114-
12(c) (West 2002).
Although no statute sets forth when a hearing on a
motion to suppress filed before trial must take place, defendant
claims People v. Flatt, 82 Ill. 2d 250, 412 N.E.2d 509 (1980),
and People v. Pugh, 133 Ill. App. 2d 168, 272 N.E.2d 742 (1971),
support his argument that the trial court did not have authority
to hold the suppression hearing at the same time as trial.
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In Pugh, defendant made a motion to suppress a weapon
that had been removed from the cab in which he had been riding.
Pugh, 133 Ill. App. 2d at 168, 272 N.E.2d at 743. Defendant
indicated he would plead not guilty and waive his right to a jury
trial. Pugh, 133 Ill. App. 2d at 168, 272 N.E.2d at 743. The
trial court then stated the hearing on the motion would be
conducted simultaneously with the trial. Pugh, 133 Ill. App. 2d
at 168, 272 N.E.2d at 743. Defense counsel objected and re-
quested a ruling on the motion to suppress. Pugh, 133 Ill. App.
2d at 168, 272 N.E.2d at 743. Defense counsel also stated he was
prepared to proceed with the trial subject to his objection.
Pugh, 133 Ill. App. 2d at 169, 272 N.E.2d at 743.
In Pugh, the court found that proceeding to trial over
defendant's objection was contrary to statute and was thus error.
Pugh, 133 Ill. App. 2d at 170, 272 N.E.2d at 744.
The version of section 114-12(d) of the Code applicable
in Pugh contained language not in the Code in effect at all
relevant times in the instant case. The version of the Code
applicable in Pugh stated, in part, that "the motion [to sup-
press] may be renewed if the trial takes place before a judge
other than the one who heard the motion." Ill. Rev. Stat. 1967,
ch. 38, par. 114-12(d). Section 114-12(d) of the Code, in effect
in the instant case, does not have the language the previous
version had that allowed the motion to suppress to be renewed if
the trial was to take place before a different judge than the one
who ruled on the motion to suppress. See 725 ILCS 5/114-12(d)
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(West 2002).
Pugh was distinguished in People v. Evans, 22 Ill. App.
3d 733, 735, 317 N.E.2d 734, 735 (1974). There, defendant argued
he was denied due process of law because defense counsel was
forced into waiving a formal hearing on his motion to suppress.
Evans, 22 Ill. App. 3d at 735, 317 N.E.2d at 735. Counsel had
expressly agreed to conduct the hearing on his motion to suppress
simultaneously with the trial. Evans, 22 Ill. App. 3d at 735,
317 N.E.2d at 735. The court rejected defendant's argument and
stated it is well settled that a defendant can waive certain
rights through the actions of his attorney. Evans, 22 Ill. App.
3d at 735, 317 N.E.2d at 735. The instant case is similar to
Evans in that defense counsel did not object to holding the
suppression hearing and the trial simultaneously but instead
agreed to it. Defendant argues that the Evans court did not
consider the statutory authority of the trial court to conduct a
hearing on a pretrial motion to suppress during trial. However,
as stated, section 114-12 of the Code is silent on the trial
court's authority to conduct a hearing on a motion to suppress
during trial.
Defendant also contends that the principle in Flatt
applicable to the instant case is "that the trial court's author-
ity to conduct a hearing on a motion to suppress after trial has
commenced is limited by section []114-12(c)" of the Code.
Defendant's statement is correct. However, contrary to defen-
dant's assertion, Flatt is not applicable to the case before us.
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Unlike the instant case, the trial court in Flatt entertained a
motion to suppress made by defendant after the jury had been
sworn. Flatt, 82 Ill. 2d at 265, 412 N.E.2d at 517. The trial
court is limited by section 114-12(c) of the Code in that section
114-12(c) only allows the court to entertain such a motion if it
alleges the evidence was illegally seized. Flatt, 82 Ill. 2d at
265-66, 412 N.E.2d at 517; 725 ILCS 5/114-12(c) (West 2002). The
motion in Flatt did not allege the evidence was illegally seized
and thus the trial court erred in entertaining the motion.
Flatt, 82 Ill. 2d at 266, 412 N.E.2d at 517. Unlike in Flatt,
the motion to suppress in the instant case was filed before trial
began and it alleged the evidence was illegally seized. Thus,
the facts involved and the reasoning behind the holding in Flatt
make that case inapplicable in this case.
Defense counsel's objection at the beginning of the
joint suppression hearing/bench trial was a continuing objection
to the evidence presented. Defense counsel recognized the State
would have to present evidence, some of which was subject to the
motion to suppress, and thus made a continuing objection so
counsel would not interrupt the proceeding. His objection was
not to holding the hearing and bench trial at the same time.
The facts of this case do not warrant remanding for
another hearing on defendant's motion to suppress as defendant
requests. Section 114-12 of the Code is silent on the issue of
when a hearing on a motion to suppress filed prior to trial must
be held. Defendant acquiesced to holding the suppression hearing
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and the bench trial on the same day. Further, the record shows
the court did not consider the testimony of defendant or
codefendant during the suppression portion of the proceeding when
deciding defendant's guilt or innocence. We endorse and adopt
the decision in People v. Evans, 22 Ill. App. 3d 733, 317 N.E.2d
734 (1974).
We note the State argues the trial court has the
inherent power to control its docket and thus the court can
conduct the suppression hearing simultaneously with the trial.
In making this argument, the State implies the court always has
the power to order the suppression hearing and trial be held
jointly. Our ruling is limited to the facts of this case, i.e.,
where defendant did not object to holding a joint suppression
hearing and bench trial.
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
APPLETON and COOK, JJ., concur.
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