People v. Kladis

FOURTH DIVISION
July 22, 2010

No. 1-09-0686

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. YM408550
)
MARINA KLADIS, ) Honorable
) William H. Wise
Defendant-Appellee. ) Judge Presiding.

PRESIDING JUSTICE O’MARA FROSSARD delivered the opinion of the court:

Defendant was charged with violating section 11-501(a)(2) of the Illinois Vehicle Code

(625 ILCS 5/11-501(a)(2)(West 2006)), which states that “[a] person shall not drive or be in

actual physical control of any vehicle within this State while under the influence of alcohol.” 625

ILCS 5/11-501(a)(2)(West 2006). Plaintiff, the People of the State of Illinois, pursuant to Illinois

Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)), appeals the circuit court’s decision

granting the motion of defendant, Marina Kladis for sanctions against the State for destroying the

in-car videotape of defendant’s arrest for driving under the influence of alcohol. (DUI).

The videotape was destroyed by the Northlake Police Department after the defendant

requested that it be produced. The circuit court barred the State from introducing the testimony of

the arresting officer for the time period contained on the videotape. The issue is whether the trial

court abused its discretion in partially barring the testimony of the arresting officer in the

criminal case as a sanction for the destruction of the videotape after the State was served with
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defendant’s Supreme Court Rule 237 written notice to produce the videotape (166 Ill. 2d R. 237).

We affirm.

BACKGROUND

On May 3, 2008, defendant was arrested for driving under the influence of alcohol (DUI).

As a result of defendant failing to submit to a Breathalyzer test, the arresting officer notified her

of her statutory summary license suspension. Defendant was ultimately cited with speeding and

driving an uninsured vehicle, as well as DUI.

Five days after her arrest, on May 8, 2008, defendant filed a petition to rescind the

statutory summary suspension of her driver’s license. She also filed a motion to quash arrest and

suppress evidence, contending that the arresting officer did not have probable cause to arrest her.

In addition, defendant filed a notice to produce, pursuant to Illinois Supreme Court Rule 237

(166 Ill. 2d R. 237). This notice commanded the State to produce, at the start of the summary

suspension hearing, the arresting officer, all his arrest reports, a copy of defendant’s driving

abstract, a copy of the arresting officer’s sworn report, and all police radio transmissions and

videotapes that pertained to defendant’s detention and arrest. The notice to produce was hand

delivered by the defense to the State’s Attorney’s office. Defendant did not subpoena the

videotapes from the police department.

On June 3, 2008, at approximately 1:30 p.m., the parties appeared for the first court date.

The defendant was ready to proceed on the petition to rescind the summary suspension of her

driver’s license. The State had not yet produced the requested materials and defendant made an

oral motion for discovery under People v. Schmidt, 56 Ill. 2d 572 (1974), including any

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videotapes. Not all police cars have a video recording device, so the State asked the arresting

officer whether there was a videotape. The officer informed the State that there was a videotape

created on the date of defendant’s arrest. The videotape at issue came from an in-car camera that

was mounted to the windshield of Officer Phillip Gaske’s car and recorded the defendant’s arrest.

The State agreed to produce the requested materials and made no objection to producing the

videotape without a subpoena. As a result of this agreement by the State, the court did not enter

an order requiring production of the videotape. The court continued the matter to June 17, 2008.

At the time of the June 3, 2008, court proceeding, the State was not aware that the

videotape had already been destroyed by the Northlake Police Department earlier that same day,

at 4:24 a.m. Although as early as May 8, 2008, the State was on notice of the request for the

videotape, it had not communicated with the police department regarding the request and had not

instructed the department to preserve the videotape. After the court proceeding, on June 3, 2008,

the State, consistent with its agreement to produce the requested materials, mailed the request for

any videotape of defendant’s arrest to the Northlake Police Department.

At the second court date, on June 17, 2008, the State tendered defendant two pages of the

Northlake Police Department’s business records. The records indicated that the Northlake Police

Department had searched its video archives in an attempt to retrieve the in-car videotape, but the

videotape had been automatically purged after 30 days. In view of the unavailability of the

requested evidence, and considering the fact that, but for its absence, defendant would have been

ready to proceed on a hearing on her petition to rescind the statutory summary suspension of her

driver’s license, the court entered an order granting her leave to file a motion for sanctions. The

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court scheduled a hearing on the motion and further ordered that the hearing on the petition to

rescind the statutory summary suspension would proceed on the same date, after the court ruled

on the motion for sanctions.

On June 26, 2008, the court held a hearing on the motion for sanctions. The trial judge

noted that he had read all of the pleadings, documents, notices, motions, and responses, and had

done the research in its entirety on the question before the court. The parties entered into an oral

stipulation as to the following facts:

(1) on May 3, 2008, at approximately 11:06 p.m. a traffic stop ensued;

(2) defendant was subsequently charged with a DUI;

(3) on May 8, 2008, defendant filed a petition to rescind the statutory summary

suspension of her driver’s license and hand delivered it to the State’s Attorney’s office;

(4) attached to that petition was a notice to produce pursuant to Supreme Court Rule 237

(166 Ill. 2d R. 237);

(5) the first court date was June 3, 2008, at 1:30 p.m. at which time defendant made an

oral motion for discovery including the videotape under People v. Schmidt, 56 Ill. 2d 572 (1974);

(6) the State asked the arresting officer whether there was a videotape made and the

officer confirmed that he had made a videotape;

(7) the State agreed to mail discovery, including the videotape, to defendant;

(8) the summary suspension hearing was entered and continued by agreement to June 17,

2008;

(9) discovery was subsequently mailed and received by defendant, but no videotape was

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received;

(10) at the scheduled court hearing of June 17, 2008, the State tendered to defendant two

pages of business records from the Northlake Police Department stating the videotape had been

purged on June 3, 2008, at 4:24 a.m.;

(11) at that time, defendant made a motion for a substitution of judge, which was granted;

(12) the case was transferred and defendant made an oral motion for sanctions, and asked

leave of court to file a written motion, which was filed on June 20, 2008.

The hearing on the “Motion for Sanctions and Petition to Rescind Statutory Summary

Suspension” was conducted on June 26, 2008. After hearing arguments from both sides on

defendant’s motion for sanctions, the court stated “ the trial assistants have so much work to do

and so many cases to handle, that I don’t find any bad faith here.” However, the court found that

the State was on notice to produce as the result of the Rule 237 request, which it construed as a

motion for discovery, and found the destruction of the videotape was a discovery violation. The

court further indicated that under case law, appropriate sanctions can be imposed even where the

discovery violation is inadvertent, which the court noted it found in the instant case. The court

also recognized that it had discretion in determining the appropriate sanction.

In imposing a sanction the court ruled that, for the purpose of the petition to rescind the

statutory summary suspension, no testimony would be allowed concerning what was contained

on the videotape. The court ruled that the bar on testimony included the time period from “five

seconds of what the car was doing prior to the actual stop” before the arresting officer activated

his emergency lights until the time defendant was formally placed under arrest. The court further

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identified the testimony not subject to that sanction exclusion that would be admissible which

included the arresting officer’s observations any time before the beginning of that time period

and any actions after defendant was formally placed under arrest.

Defendant then presented her case on the petition to rescind the summary suspension of

her driver’s license. Defendant and Officer Gaske testified. The State presented no witnesses.

The State conducted a brief cross-examination of Officer Gaske, but did not establish whether

Officer Gaske observed defendant operate the motor vehicle before the period of time captured

on the videotape. The record does not reflect whether Officer Gaske made any observations of

defendant or had any conversation with her after the time period captured on the videotape.

The trial court granted defendant’s petition to rescind the statutory summary suspension. The

State filed a notice of appeal for both the sanctions order and the rescission of defendant’s

summary suspension. The case was continued for a hearing on defendant’s motion for sanctions

on the criminal case, motion to quash arrest and suppress evidence, as well as for trial on the

criminal case.

At that hearing the parties initially addressed whether the court would impose the same

sanctions order in the criminal case that it had imposed after the hearing on the civil petition to

rescind the summary suspension of defendant’s driver’s license. The court agreed with the State

that an order imposing the same sanctions in the criminal case would implicate a ruling on

defendant’s motion to quash arrest and suppress evidence which would substantially impair the

State from going to trial.

The parties then stipulated that testimony from the June 26, 2008, hearing on defendant’s

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“Motion for Sanctions and Petition to Rescind Statutory Summary Suspension” would be the

same testimony as to the defendant’s “Motion for Sanctions” in the criminal case. The court

granted the defendant’s motion for sanctions. The sanctions order in the criminal case mirrored

the order entered by the court in the civil case. In the criminal case, the trial judge ruled as

follows:

“So my ruling will be exactly the same. I have no evidence different here, that the

Motion for Sanctions pertaining to the case in chief will be granted, 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. If there was something that she did in the squad car or anything else after that when

she got out of the squad car at the police station, or anything that happened in the police

station pertaining to this matter which is relevant it will be admitted into evidence.”

The State then filed this appeal challenging the court’s sanction order in the criminal case.

The State voluntarily dismissed its earlier appeal in the civil case regarding the ruling on the

motion for sanctions and the ruling on the statutory summary suspension.

ANALYSIS

The issue before this court is whether the trial court's sanction order entered in the

criminal misdemeanor case against the State for destruction of evidence was an abuse of

discretion. A trial court’s decision to impose sanctions is reviewed under an abuse of discretion

standard. People v. Schambow, 305 Ill. App. 3d 763, 766 (1999). A trial court abuses its

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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).

Defendant did not file a brief. The State’s brief and record are sufficient to resolve this appeal;

accordingly, we consider the merits of the appeal. People v. Schambow, 305 Ill. App. 3d at 766.

A. Discovery Violation

A discovery violation may be analyzed in one of two ways. It can be analyzed as a due

process violation under Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289, 109 S.

Ct. 333, 337 (1988), or under Illinois Supreme Court Rule 415(g)(I). The Supreme Court of the

United States in Illinois v. Fisher made it clear that when evidence is potentially useful, but not

material exculpatory evidence, then failure to preserve potentially useful evidence does not

violate due process unless the defendant can show bad faith by the prosecution. Illinois v.

Fisher, 540 U.S. 544, 548-659, 157 L. Ed. 2d 1060, 1066-1067, 1254 S. Ct. 1201, 1202-1203

(2004). However, to establish a discovery violation under Illinois Supreme Court Rule 415(g)(I)

it is only required to show that “ a party has failed to comply with an applicable discovery rule or

an order issued pursuant thereto.” 134 Ill. 3d R. 415(g)(I).

In challenging the trial court’s use of discretion in finding a discovery violation and

excluding some of the evidence, the State relies primarily on cases discussing whether

destruction of evidence violated due process. Relying on a due process analysis, the State

contends that because the defendant failed to show that the State acted in bad faith or that the

destroyed videotape was material exculpatory evidence, the trial court abused its discretion by

imposing a sanction order excluding some of the prosecution’s evidence.

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Regarding the due process analysis, we find Illinois v. Fisher, 540 U.S. 544, 157 L. Ed.

2d 1060, 124 S. Ct.1206 (2004), instructive. In Fisher defendant was charged with possession of

cocaine and filed a discovery motion for all physical evidence the State intended to use at trial.

Fisher, 540 U.S. at 545, 157 L. Ed. 2d at 1064, 124 S. Ct. at 1201. After defendant was released

on bond, he became a fugitive for 10 years. Fisher, 540 U.S. at 545, 157 L. Ed. 2d at 1064, 124

S. Ct. at 1201. He was eventually arrested and before trial the defendant learned that the police

destroyed the substance seized from him 10 years earlier. Fisher, 540 U.S. at 546, 157 L. Ed. 2d

at 1065, 124 S. Ct. at 1201. The trial court denied the defendant’s motion to dismiss and a jury

found him guilty. Fisher, 540 U.S. at 546, 157 L. Ed. 2d at 1065, 124 S. Ct. at 1201.

The appellate court reversed the conviction, finding no evidence of bad faith, but

concluding the destroyed evidence was the defendant’s only hope of exoneration and was

essential to the outcome of the case. Fisher, 540 U.S. at 546-47, 157 L. Ed. 2d at 1065, 124 S.

Ct. at 1201. The appellate court did not address whether there was a discovery violation

independent from a due process analysis; rather, the court reversed the conviction based upon a

finding that defendant was denied due process. Fisher, 540 U.S. at 547, 157 L. Ed. 2d at 1065,

124 S. Ct. at 1201. The Illinois Supreme Court denied leave to appeal, however, the United

States Supreme Court granted the State’s petition for certiorari. Fisher, 540 U.S. at 545, 157 L.

Ed. 2d at 1064, 124 S. Ct. at 1200.

The Supreme Court of the United States in Fisher disagreed with the appellate court’s

conclusion that defendant had to show bad faith by the State because Fisher found the substance

seized from defendant was not material exculpatory evidence but merely potentially useful

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evidence. Fisher, 540 U.S. at 548, 157 L. Ed. 2d at 1066, 124 S. Ct. at 1202. Fisher made it

clear that when evidence is potentially useful, but not material exculpatory evidence, then failure

to preserve potentially useful evidence does not violate due process unless the defendant can

show bad faith. Fisher, 540 U.S. at 548-49, 157 L. Ed. 2d at 1066-67, 124 S. Ct. at 1202-03.

Before the ruling in Fisher, the Illinois Supreme Court case of People v. Newberry was

one of the leading cases in Illinois addressing the prerequisites for demonstrating a due process

violation when evidence was destroyed by the State. People v. Newberry, 166 Ill. 2d 310, 317

(1995). In Newberry, the police destroyed evidence after defense counsel had requested it in a

discovery motion. The Illinois Supreme Court in Newberry found that where the State was on

notice by such a discovery request, the defense did not have to show bad faith or that the

evidence had exculpatory value to establish a due process violation. People v. Newberry, 166 Ill.

2d at 317.

The United States Supreme Court in Fisher, under its due process analysis, discussed the

issue of bad faith and brushed aside the significance that Newberry placed on the discovery

request. Under a due process analysis, the Court in Fisher noted that “[w]e have never held or

suggested that the existence of a pending discovery request eliminates the necessity of showing

bad faith on the part of police.” Fisher, 540 U.S. at 548, 157 L. Ed. 2d at 1066, 124 S. Ct. at

1202.

The impact of Fisher on Newberry was discussed in People v. Kizer, 365 Ill. App. 3d

949, 959-61 (2006). In Kizer, the court applied the Fisher due process analysis to a felony DUI

case and concluded that without bad faith by the prosecution, no sanction for destroying evidence

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that was potentially useful evidence, not material exculpatory evidence, was required. People v.

Kizer, 365 Ill. App. 3d at 959-61. Kizer noted that Fisher supercedes Newberry regarding

application of the due process clause in cases involving the destruction of evidence by the State.

People v. Kizer, 365 Ill. App. 3d at 960-61.

We need not determine whether the State’s destruction of evidence in the instant case

violated due process because the trial court found a discovery violation independent of a due

process analysis. We next consider whether the trial court abused its discretion in finding a

discovery violation.

In deciding whether a discovery violation occurred, the trial court discussed the principles

articulated in People v. Koutsakis, 255 Ill. App. 3d 306 (1993). In Koutsakis, the defendant was

stopped while driving on Interstate 80 in Bureau County and after a search of his vehicle he was

charged with the felony of cannabis trafficking. Koutsakis filed a motion for discovery for the

tape of any radio transmissions between the State Police officers who conducted the investigation

leading up to his arrest. The court ordered production of the tape; however, after defendant’s

discovery request, but before the court order to produce, the tape was destroyed by the State

Police as part of their 31-day recycling process. In Koutsakis, the court noted that the tape was

requested by Koutsakis before the State destroyed it and held that the State was required by Rule

412 to produce the tape when Koutsakis requested it in his written motion for pretrial discovery.

Koutsakis, 255 Ill. App. 3d at 311.

The court in Koutsakis rejected the State’s argument that the defendant was required to

demonstrate the requested tape was material to the case and favorable to him as follows:

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“The State relies on subsection (h) of Supreme Court Rule 412, which requires a showing

of materiality before a court may order the disclosure of information to defense counsel.

However, subsection (h) only applies to material and information ‘not covered by this

rule.’ (134 Ill. 2d R. 412(h).) We agree with Koutsakis’ argument that the requested tape

is covered by Rule 412.” Koutsakis, 255 Ill. App. 3d at 310.

The court in Koutsakis noted that Rule 412 provided that the State shall upon written

motion of defense counsel disclose recorded statements of witnesses it intends to call. Koutsakis,

255 Ill. App. 3d at 310-11. Koutsakis further noted that “where there is a request for specific

evidence, a defendant does not need to show the exculpatory value of the evidence because the

specific request puts the State on notice to preserve the evidence.” (Emphasis omitted.)

Koutsakis, 255 Ill. App. 3d at 311 (and cases cited therein). Additionally relying on subsection

(f) of Rule 412, which provides that “the prosecution has the duty to ensure that a flow of

information is maintained between various investigative personnel and its office sufficient to

place within its possession or control all material and information relevant to the accused,” the

court in Koutsakis found the State violated Rule 412 when it failed to produce the requested tape.

Koutsakis, 255 Ill. App. 3d at 311.

Applying Rule 415, the court in Koutsakis noted that sanctions were proper even where

the discovery violation was inadvertent. Koutsakis, 255 Ill. App. 3d at 311-12 (and cases cited

therein). Koutsakis concluded that the trial court’s sanction to limit the testimony of the police

officers involved in the stop and search by precluding testimony concerning matters on the tape

was an appropriate sanction even though there had been no showing of bad faith on the part of

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the State. Koutsakis, 255 Ill. App. 3d at 314.

The trial court in the instant case after discussing Koutsakis indicated as follows:

“I do think that police departments should be educated by their legal

representatives so that this will not constantly happen. This is the third case I

have had like this in three weeks. And they’re all different police departments.

I find the State was given notice, and that–whether it’s under the Code of

Civil Procedure or whether it is – it isn’t, in my opinion that could be construed

as a motion for discovery.”

The court further indicated that it found no fault with the officer in this case or with the

State’s Attorney’s office. However, the court noted that the tape would have been used during

the summary suspension hearing or during the case in chief and either way “what was on that

video is an important piece of evidence.” The court concluded:

“So the Court rules as follows: pursuant to the case law and pursuant to my

discretion, I feel that was something that should have been tendered to the

defendant. The police department had ample notice; yet, they destroyed it.

***

Based upon the case law and based upon what I said, I will enter

sanctions.”

We are mindful that Koutsakis is a felony case, relying on supreme court rules pertaining

to discovery in felony cases. Accordingly, it provides limited guidance in answering the question

as to whether the court abused its discretion by imposing sanctions for a discovery violation in

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the factual context of the evidence destruction that occurred in this misdemeanor DUI case. We

note that discovery is more limited in misdemeanor cases. See People v. Schmidt, 56 Ill. 2d 572

(1974).

In the instant case, in addition to the Rule 237 notice to produce, defense counsel on the

first court date made a motion for discovery under People v. Schmidt, 56 Ill. 2d at 575. We find

Schmidt provides instruction as to the limited scope of discovery in a misdemeanor case. At

issue in Schmidt was the scope of discovery in a misdemeanor DUI case. In Schmidt, the State

made a videotape available prior to trial and only the police report requested by the defendant

was at issue in pretrial discovery. Schmidt, 56 Ill. 2d at 573. The State argued the police report

was not subject to pretrial discovery; however, the State agreed to produce it at trial for

impeachment purposes. Schmidt, 56 Ill. 2d at 573. When the State refused to comply with a

court order to produce the report prior to trial, the trial court entered an order excluding all

information in the report from being used at trial. Schmidt, 56 Ill. 2d at 573. The appellate court

reversed, and the supreme court affirmed the appellate court. Schmidt, 56 Ill. 2d at 574-75

In Schmidt, the trial court commented that it believed the Illinois Supreme Court would

ultimately extend application of the discovery rules to misdemeanor cases. Schmidt, 56 Ill. 2d at

574. The Illinois Supreme Court in Schmidt did not agree with the trial court that defendants in

misdemeanor and felony cases were entitled to the same discovery. However, Schmidt did

conclude that the State was required to furnish defendants some limited discovery in

misdemeanor cases. Schmidt, 56 Ill. 2d at 575.

The court in Schmidt delineated misdemeanor discovery as follows:

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“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 [1963]), and, in this particular

case, the results of the breathalyzer test (Ill. Rev. Stat. 1971, ch. 951/2, par. 11-501(g)).

Additionally, the [police] 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 [1969].) At the time of adoption of the 1971 rules we believed adequate for the

lesser offenses the discovery provided by case law and statute, and we see no reason to

depart from that view now.” Schmidt, 56 Ill. 2d at 575.

The Schmidt court believed that the discovery it required the State to furnish, together with the

discovery provided by case law and statute, was adequate discovery for misdemeanor cases.

Schmidt, 56 Ill. 2d at 575.

Since the Schmidt principles were articulated in 1974, case law has provided very little

instruction as to their application in misdemeanor cases. As previously noted, People v. Kizer

addressed application of due process to a felony DUI and concluded that without bad faith by the

State, destruction of evidence did not violate due process. People v. Kizer, 365 Ill. App 3d 949,

960-61 (2006). People v. Koutsakis addressed application of the Illinois Supreme Court

discovery rules to destruction of evidence in a felony cannabis trafficking case and concluded

inadvertent destruction of evidence violated Rule 412. Koutsakis, 255 Ill. App. 3d at 311.

People v. Schambow, 305 Ill. App. 3d 763 (1999), and People v. Petty, 311 Ill. App. 3d 301

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(2000), recognized that in the context of a rescission hearing a discovery violation can occur in a

misdemeanor DUI case when audiotapes made during the arrest are inadvertently destroyed by

the police; however, both cases found the sanctions imposed were not proportional to the

magnitude of the discovery violation. People v. Schambow, 305 Ill. App. 3d at 768-69; People v.

Petty, 311 Ill. App. 3d at 303-04. People v. Petru, 52 Ill. App. 3d 676 (1977), addressed

imposing sanctions in a misdemeanor case for a discovery violation which did not involve

destruction of evidence, noted that the disputed discovery was tendered to defendant before the

entry of the court’s exclusion order, and found the sanction which excluded testimony of all

witnesses was excessive and an abuse of discretion. Petru, 52 Ill. App. 3d at 679-80.

However, none of these cases address application of the limited discovery principles

articulated in Schmidt as to inadvertent destruction of evidence in a misdemeanor case. As

previously noted, under the limited misdemeanor principles delineated in Schmidt, which was a

misdemeanor DUI case, the State is required to furnish the defendant a police report for use by

defendant in impeachment of the prosecution witness who prepared the report. Schmidt, 56 Ill.

2d at 575. The videotape in the instant case is similar to the police report at issue in Schmidt.

Applying the limited discovery principles articulated in Schmidt, we conclude defendant was

entitled to the production and use of the videotape at trial for cross-examination and

impeachment of Officer Gaske, the prosecution witness who was responsible for creating the

videotape. Under Schmidt we find no abuse of discretion by the court’s ruling that the videotape

was discoverable.

Moreover, in the factual context of the instant case, we agree with the trial court that the

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State was on notice and should have taken the appropriate action to make sure the tape was not

destroyed. On May 8, 2008, five days after defendant was arrested, defense counsel hand

delivered to the State in the form of a Rule 237 notice to produce a written request for the

videotape. The first court date was June 3, 2008, at 1:30 p.m. The videotape was destroyed on

the first court date at 4:24 a.m., which was several hours before court convened at 1:30 p.m. The

destruction of the videotape occurred 25 days after the defense in writing requested the videotape

and 30 days after the arrest. The trial court concluded the Rule 237 notice to produce, which was

hand delivered to the State 25 days before the first court date and contained defendant’s written

request for the videotape, provided proper notice to the State. In support of that conclusion, the

trial court found that “the State was given notice, and that–whether it’s under the Code of Civil

Procedure or whether it is-- it isn’t, in my opinion that could be construed as a motion for

discovery.” We find no abuse of discretion by the trial court’s conclusion that the State was

given notice that could be construed as a motion for discovery and that the videotape “should

have been tendered to the defendant.”

In the factual context of the instant case, we agree with the trial court that upon receiving

the written Rule 237 notice to produce, the State was properly on notice of defendant’s request

for discovery and had a variety of options, including filing an answer, calling the police

department and obtaining the tape before it was destroyed or objecting to the written request.

The trial court noted that the State took no action. The State did not respond to the discovery

request, did not object to the request, did not answer the request and took no action to preserve,

procure or produce the videotape. That inaction by the State set the stage for the destruction of

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the videotape evidence. We recognize that the trial court found the inaction by the State was not

bad faith. While we agree that the State did not act in bad faith, we do not condone the

destruction of evidence which occurred in this case.

Moreover, we reject the State’s argument that because there is a finding of no bad faith

the defendant is required to show the videotape was material exculpatory evidence. We note that

demonstrating the destroyed evidence was material exculpatory evidence is required under a due

process analysis. As previously discussed, under a due process analysis where there is no bad

faith by the State, the defense must show the destroyed evidence is not potentially useful

evidence, but material exculpatory evidence. Fisher, 540 U.S. at 548-49, 157 L. Ed. 2d at 1066-

67, 124 S. Ct. at 1202-03. However, in the instant case the trial court did not find a discovery

violation based on due process. The Rule 237 written request to produce the videotape served on

the State by defense counsel was construed by the trial court in the underlying DUI case as a

motion for discovery.

The scope of misdemeanor discovery the State is required to furnish is delineated in

People v. Schmidt. Schmidt, 56 Ill. 2d at 575. In discussing the limited discovery the State is

required to furnish in misdemeanor cases regarding reports prepared by prosecution witnesses,

the court in Schmidt imposed no requirement that the defendant must show the evidence

requested under Schmidt is material exculpatory evidence. The State under Schmidt is required

to make available the police reports requested by a defendant for impeachment of the prosecution

witness who prepared the report. Schmidt, 52 Ill. 2d at 575. Schmidt does not require the

defendant to show that the report is material exculpatory evidence as a prerequisite for requiring

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the State to produce it.

We note that in the instant case the State made no objection to producing the videotape

and did not argue that defendant was required to demonstrate the videotape was material

exculpatory evidence before the State would produce it. Rather, the State on the first court date

agreed to produce it. Only on appeal did the State argue that defendant was required to show

either the videotape was material exculpatory evidence or that it was destroyed in bad faith.

Considering the limited scope of the discovery the State is required to furnish under Schmidt in a

misdemeanor case, we find no reason to create a “material and exculpatory” prerequisite in order

for the defense to obtain the videotape at trial for impeachment of the prosecution witness who

prepared it.

The trial court noted that the videotape would have been used during the summary

suspension hearing or during the case in chief, and either way, “what was on that video is an

important piece of evidence.” The trial court further noted that this was the third case of evidence

destruction from different police departments that it had in three weeks. Under the particular

circumstances of this case, we find no abuse of discretion by the court in finding that the

defendant’s Rule 237 written request to produce was a motion for discovery, which required the

State to preserve and produce the videotape, and finding a discovery violation by the State’s

destruction of the tape.

We caution, however, that to eliminate any question about whether the State is required to

preserve and produce evidence, a signed protective order from the judge could be obtained and

then served on the State at the same time the Rule 237 request is served on the State. See People

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v. Johns, 336 Ill. App. 3d 682, 687-88 (2002) (sanction for violation of a protective order signed

by court obtained by defendant in timely manner and specific in nature was proportional to the

discovery violation). It is well settled that a trial court has the power to enforce its discovery

orders. See People v. Schambow, 305 Ill. App. 3d at 769 (“By our holding, we do not intend to

undermine the trial court’s ability to enforce its discovery orders.”). Obtaining such a discovery

order in advance of the first trial date will eliminate destruction of evidence when, as in this case,

the first trial date and the evidence purge date coincide. Obtaining a signed protective order

from the judge will eliminate any question as to whether the State is required to preserve and

produce the evidence.

In the factual context of the instant case, we conclude the trial court properly exercised

discretion in finding that the destruction of the videotape was a discovery violation. We next

address the question of whether the trial court in exercising discretion imposed an appropriate

sanction for the discovery violation.

Discovery Violation Sanction

The State challenges the sanction order, contending it is tantamount to dismissal of the

charge and that “having found defendant had never subpoenaed the tape and that the People had

not acted in bad faith, the court’s sanction was disproportionately harsh and evidences an abuse

of discretion.” As previously noted, the State in the instant case did not object to producing the

videotape without a subpoena. Rather, the State agreed to produce the videotape but was unable

to do so because the police department destroyed the tape as part of its automatic 30-day purge

policy.

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As a result of the destruction of the tape the trial court entered a sanction limited to

barring the testimony of Officer Gaske from the point in time five seconds before he activated his

emergency lights and followed the defendant until he placed defendant under arrest. In imposing

this limited sanction, the trial court noted that testimony as to any driving or conduct by the

defendant prior to that time would be admissible and would not be barred. The court further

limited the sanction by indicating that evidence of conduct after defendant was formally placed

under arrest in the squad car was also admissible. The trial court made it clear that Officer Gaske

was only barred from testifying about matters recorded on the videotape and no other prosecution

evidence or prosecution testimony would be barred.

Regarding the testimony of Officer Gaske that was barred, the court noted as follows:

“My ruling will be five seconds of what her car was doing prior to the actual

stop.*** And the lights going on, okay. I think we’re all clear on that. Any driving prior

to that and actions prior to that are admissible. Any actions after she was formally placed

under arrest are admissible.”

The State, relying on Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct.

333 (1988), argues that the court abused its discretion when it imposed sanctions after

specifically finding that the State had unintentionally destroyed the videotape. The State argues

that unless a defendant can show bad faith on the part of the police, the failure of the State to

preserve evidence does not constitute a denial of due process. Similarly, the State relies on In re

C.J., 166 Ill. 2d 264 (1995), which, consistent with the due process analysis in Youngblood,

concludes that to justify an exclusionary sanction, defendant would have to show either that the

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destroyed evidence was material exculpatory evidence or that the State destroyed the evidence in

bad faith. C.J., 166 Ill. 2d at 272-73. As previously noted, in the instant case the court did not

impose sanctions for a discovery violation based on a due process analysis; accordingly, we do

not find the State’s argument persuasive.

The State further challenges the imposition of sanctions, relying on People v. Schmidt, 56

Ill. 2d 572, 574-75 (1974). The State contends that “[i]t is well-settled that the Supreme Court

Rules do not provide a basis for discovery sanctions in misdemeanor cases.” As previously

noted, Schmidt addressed the scope of discovery the State is required to provide in misdemeanor

cases. Schmidt, 56 Ill. 2d at 575. Schmidt is not instructive because it did not discuss the issue

of whether discovery sanctions can be imposed in misdemeanor cases.

The State also relies upon People v. Petru, 52 Ill. App. 3d 676 (1977), in support of its

argument that the limitation on Officer Gaske’s testimony was an abuse of discretion because

that sanction “completely precluded the People from prosecuting the defendant.” In Petru as a

discovery sanction the court excluded the testimony of all the investigating police officers who

could testify for the State. Petru, 52 Ill. App. 3d at 679. The court in Petru found the exclusion

of the testimony of all the witnesses was excessive and an abuse of discretion. Petru, 52 Ill. App.

3d at 679. The court noted that several less stringent sanctions could have been applied. The

court in Petru concluded that it did not intend to “preclude the imposition of any other

appropriate sanction in the proper case” and noted that the “disputed discovery which is the

subject of this appeal was in fact furnished to defendant prior to the entry of the exclusion order

by the trial court.” Petru, 52 Ill. App. 3d at 679.

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We find Petru factually distinct from the instant case. Unlike Petru, the evidence that is

subject of the instant appeal was destroyed; it was not furnished to defendant prior to the court’s

imposition of the sanction order as was done in Petru. Petru, 52 Ill. App. 3d at 679. Unlike the

sanction imposed in Petru, the trial court did not bar all the testimony of the police officers who

could testify for the State. Moreover, the trial court did not bar all the testimony of Officer

Gaske, the arresting officer. Rather, it limited the sanction to excluding Officer Gaske from

testifying only to matters on the videotape. The trial court was careful to note that Officer Gaske

could testify to what he observed as to defendant’s operation of the motor vehicle she was

driving before he activated the videotape and the officer could testify about observations or

statements after defendant was arrested.

On appeal the State argues the limitation on Officer Gaske’s testimony essentially

precludes it from prosecuting defendant. In support of that argument the State notes that Officer

Gaske’s observations of defendant while the videotape was recording constituted the State’s

entire proof of defendant’s alleged intoxication. However, at the sanction hearing and the

rescission hearing the State declined to call any witnesses. The only witnesses who testified were

the defendant and Officer Gaske, who were both called by the defense during the rescission

hearing. The State did not cross-examine defendant and only asked Officer Gaske a few brief

questions. On appeal the State argues that the videotape “consisted of the entire set of events that

led to defendant’s arrest.” However, the State did not make a record during the hearing which

supports that conclusion. The record does not reflect whether Officer Gaske was the only police

officer to observe defendant or have contact with defendant. The State did not ask Officer Gaske

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what, if any, observations he made of defendant’s operation of the car defendant was driving

before he activated the videotape. The State did not ask Officer Gaske whether defendant made

any incriminating statements after her arrest. The State did not ask Officer Gaske whether the

videotape reflected the only and the entire proof of defendant’s alleged intoxication. The State

had an opportunity to make that record but did not do so.

Both the defense and the State agreed to stipulate to the transcript of the hearing for

purposes of the sanction determination by the trial court in the criminal DUI case. The trial court

in imposing sanctions was clear to note that Officer Gaske was barred from testifying only to

matters on the videotape and no other testimony or evidence the State would offer was subject to

that sanction. That sanction was similar to the sanction imposed in Koutsakis, where as the result

of the State’s failure to produce the requested tapes, the court barred the officers from testifying

regarding matters that may have been contained on the tape. Koutsakis, 255 Ill. App. 3d at 313-

14. Similarly, in People v. Johns, 336 Ill. App. 3d 682 (2002), the court found no abuse of

discretion where the trial court imposed sanctions that barred police from testifying to any details

of the offense during the time period covered by the requested tapes that were inadvertently

erased.

In the instant case, during the hearing on the motion for sanctions, in support of

defendant’s request for a sanction proportional to the magnitude of the discovery violation

defendant relied on People v. Schambow, 305 Ill. App. 3d 763 (1999). As previously noted, in

Schambow the court addressed the proper sanction for destroyed evidence in a statutory summary

suspension proceeding, not in the context of a misdemeanor DUI prosecution. Schambow, 305

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Ill. App. 3d 763. The defendant in Schambow subpoenaed an audiotape of the police

communications to be produced on the court date for his statutory summary suspension.

Between the time the subpoena issued and the court hearing, the audiotape was inadvertently

erased. Schambow, 305 Ill. App. 3d at 765. After learning it had been destroyed, the defendant,

pursuant to Supreme Court Rule 415(g)(I) (134 Ill. 2d R. 415(g)(I)), filed a motion for sanctions

seeking rescission of his statutory suspension. Schambow, 305 Ill. App. 3d at 765-66. The trial

court entered an order rescinding the defendant’s summary suspension and the State appealed.

Schambow, 305 Ill. App. 3d at 766.

In Schambow, the court addressed the discovery violation under a due process analysis

and concluded that “[l]acking the predicate showing of exculpatory potential or prosecutorial

bad faith, the defendant cannot demonstrate that his due process rights have been violated.”

Schambow, 305 Ill. App. 3d at 768. The Schambow court, relying on Supreme Court Rule 219

(166 Ill. 2d 219), held that the rescission of the summary suspension was not an appropriate

discovery sanction because the State’s failure to preserve the tape was not deliberate or in bad

faith and because the audiotape had limited evidentiary value for the summary suspension

hearing. Schambow, 305 Ill. App. 3d at 768-69. The court noted that by that holding, “we do not

intend to undermine the trial court’s ability to enforce its discovery orders.” Schambow, 305 Ill.

App. 3d at 769. However, the court made clear that the “nature of the sanction must be

commensurate with the discovery violation.” Schambow, 305 Ill. App. 3d at 769. Citing

Koutsakis, the Schambow court explained how a more limited sanction would have been

appropriate:

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“[I]nstead of rescinding the summary suspension, the trial court could have simply

precluded [the officer] from testifying concerning statements he made to the

police dispatcher as well as any information he learned from the dispatcher. Such

a sanction would have been more proportional to the magnitude of the discovery

violation.” Schambow, 305 Ill. App. 3d at 769.

A similar sanction issue was resolved in People v. Petty, also in the context of a

rescission hearing where defendant failed to subpoena an audiotape but did move for discovery

of the audiotape under Rule 237 (134 Ill. 2d R. 237) and the Code of Criminal Procedure of 1963

(725 ILCS 5/114-13 (West 1998)). Petty, 311 Ill. App. 3d at 302. After the tapes of defendant’s

arrest were inadvertently destroyed following the request, the trial court granted the defendant’s

motion to quash the arrest and suppress all of the arresting officer’s testimony from further

proceedings. Petty, 311 Ill. App. 3d at 302-03. Although the case was reversed and remanded

because the sanction was not proportional to the magnitude of the discovery violation, we note

the trial court’s finding that there was a discovery violation remained undisturbed. Petty, 311 Ill.

App. 3d at 304.

Regarding the sanction, the appellate court in Petty held that the trial court abused its

discretion when it “completely” barred the arresting officer’s testimony and remanded the case to

the trial court for imposition of an appropriate sanction. Petty, 311 Ill. App. 3d at 304. In so

doing, the court cited Koutsakis and Schambow and explained how a more proportional sanction

could have been imposed:

“In this case, the trial court could have precluded the officer from testifying about

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his conversations with the dispatcher and limited the testimony to the officer’s

observations of defendant. Such a sanction would have been more proportional to

the magnitude of the discovery violation.” Petty, 311 Ill. App. 3d at 304.

We are mindful that Schambow and Petty address the issue of sanctions in the context of

a rescission hearing, while Koutsakis and Johns address the issue of sanctions in the context of a

felony prosecution. However, the sound principle articulated in these cases, that a sanction

should be proportionate to the magnitude of the discovery violation, is instructive in addressing

whether the sanction was appropriate in the instant case.

We further note People v. Camp, 352 Ill. App. 3d 257 (2004), recognized the need to

impose a discovery sanction proportionate to the magnitude of the discovery violation in a

misdemeanor DUI case where the videotape of defendant performing field sobriety tests was

destroyed by the State before trial. Camp analyzed the discovery violation using a due process

analysis and found the trial court erred in holding that due process required dismissal of the DUI

charge. Camp, 352 Ill. App. 3d at 261. However, Camp noted that the trial court based its ruling

solely on due process and “thus did not consider what sanctions would be proper under the

discovery rules.” Camp, 352 Ill. App. 3d at 262. Camp further noted that “[t]his is primarily a

question for the trial court, which has broad discretion to impose sanctions that are proportionate

to the magnitude of the discovery violation.” Camp, 352 Ill. App. 3d at 262, citing Newberry,

166 Ill. 2d at 317-18, and Koutsakis, 255 Ill. App. 3d at 314.

The court in Camp concluded that the dismissal of the charge was disproportionate to the

State’s discovery violation. Camp, 352 Ill. App. 3d at 262. Camp remanded for “the trial court

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*** to consider the appropriate sanction under Rule 415(g)(I) for the State’s discovery

violation.” Camp, 352 Ill. App. 3d at 262. We note Newberry, which was relied upon by the

court in Camp, is a felony case which recognized that the Illinois Supreme Court discovery rules

provide a basis independent from due process for imposing a discovery sanction. That principle,

which was not addressed by the United States Supreme Court in Fisher, was articulated by the

Newberry court as follows:

“[T]he circuit court’s dismissal of the indictments can also be sustained as a

proper discovery sanction under our Rule 415(g)(I) (134 Ill. 2d R. 415(g)(I)), independent

of any due process considerations. Rule 415(g)(I) confers broad power on the trial court

to impose sanctions where, as here, the State fails to comply with its discovery

obligations. Where evidence has been destroyed following a defense request under Rule

412 (134 Ill. 2d R. 412), no showing of bad faith by the State is required in order for the

trial court to act. The correct sanction is a decision appropriately left to the discretion of

the trial court, and its judgment is entitled to great weight.” Newberry, 166 Ill. 2d 310 at

317-18.

People v. Camp is the only case we have found that addresses the issue of what

constitutes appropriate discovery sanctions under Rule 415(g)(I) for the State’s discovery

violation in the context of a misdemeanor case. Supreme Court Rule 415(g)(I) provides as

follows:

“If at any time during the course of the proceedings it is brought to the attention of

the court that a party has failed to comply with an applicable discovery rule or an order

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issued pursuant thereto, the court may order such party to permit the discovery of material

and information not previously disclosed, grant a continuance, exclude such evidence, or

enter such other order as it deems just under the circumstances.” 134 Ill. 2d R. 415(g)(I).

We are mindful that the Illinois Supreme Court discovery rules apply to felony cases, but

can appreciate the reliance by Camp on Rule 415(g)(I) as providing some guidance to the trial

court on remand in crafting a discovery sanction proportionate to the magnitude of the discovery

violation in the context of a misdemeanor case. Camp, 352 Ill. App. 3d at 262 (“On remand, the

trial court is to consider the appropriate sanction under Rule 415(g)(I) for the State’s discovery

violation.”). We note the trial court in the instant case did not rely on Camp; however, we find it

instructive in articulating the principle that a sanction should be proportional to the magnitude of

the discovery violation in a misdemeanor case. Camp, 352 Ill. App. 3d at 262.

In the instant case, consistent with the principles articulated in Schambow, Petty, Camp,

Koutsakis and Johns, defendant sought a sanction proportionate to the magnitude of the

discovery violation. Defendant did not seek dismissal of the misdemeanor criminal case. The

trial court did not completely bar the officer’s testimony and did not dismiss the charges in the

criminal case; instead, consistent with the principles articulated in Schambow, Petty, Camp,

Koutsakis and Johns, the court entered a sanction that was limited and proportionate to the

magnitude of the discovery violation. The entire testimony of Officer Gaske was not barred.

The court only barred Officer Gaske from testifying regarding matters on the videotape, while

testimony regarding defendant’s driving or other conduct not on the videotape would be

admissible. The court made it clear it was not barring the State from offering other testimony or

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evidence. Rather, the trial court noted that any of defendant’s actions or driving prior to

activation of the videotape would be admissible through the testimony of the arresting officer, as

well as any observations of defendant made by the officer after defendant’s arrest.

During the hearing on defendant’s motion for sanctions for the police department’s

destruction of the requested videotape, the trial judge noted that this case was the third case of

evidence destruction he had been confronted with in three weeks, involving three different police

departments. The court noted that the erasing of tapes after 30 days seemed to be the general

procedure of many police departments. See, e.g., People v. Schambow, 305 Ill. App. 3d at 765

(apparently, 30 days after the date of the original taping, the radio recordings of communications

are erased). The trial court suggested that police departments should be educated by their legal

representatives so that this destruction of evidence would not constantly happen. For the reasons

previously discussed, we find the trial court properly exercised discretion in imposing a limited

sanction for the discovery violation.

CONCLUSION

In the factual context of the instant case, we conclude that the trial court did not abuse its

discretion by finding a discovery violation and imposing sanctions. Defense counsel within five

days of defendant’s arrest hand delivered to the State a written notice to produce the videotape.

On the first court date defense counsel made a Schmidt motion for discovery including the

videotape. The State did not object to the notice to produce or to the motion for discovery; rather

the State agreed to produce the videotape. Relying on the State’s agreement to produce the

videotape, the defense did not issue a subpoena for the videotape or request a court order for its

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production or protection and the court did not enter an order to protect or produce. The

videotape was destroyed as the result of the police department’s 30-day automatic purge policy.

The court, independent of a due process analysis, found the State did not act in bad faith but

found the inadvertent destruction of the videotape was a discovery violation and imposed

sanctions. The trial court did not dismiss the charges against defendant; rather, the sanction

imposed, which excluded only testimony regarding what was contained on the destroyed

videotape, was limited and proportionate to the discovery violation.

The record does not reflect that the trial court’s use of discretion was “fanciful, arbitrary,

or unreasonable to the degree that no reasonable person would agree with it.” People v. Ortega,

209 Ill. 2d 354, 359 (2004). The trial judge noted this was the third case of evidence destruction

involving different police departments that he had before him during a period of three weeks.

We find no abuse of discretion by the trial court’s conclusion that the videotape was discoverable

and the destruction of the videotape after defendant requested its production was a discovery

violation. We find no abuse of discretion by the trial court’s conclusion that there was no bad

faith by the State in the destruction of the videotape. We find no abuse of discretion by the

limited sanction imposed. In the exercise of discretion, the experienced trial court found the

destruction of the videotape in the factual context of this case to be a discovery violation and

imposed an appropriate sanction that was limited in scope. We affirm the decision of the trial

court barring the State from introducing only the testimony of the arresting officer as to what was

contained on the videotape.

Affirmed.

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O’BRIEN and NEVILLE, JJ., concur.

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