dissenting:
I would deny the State’s appeal on jurisdictional grounds, and therefore I respectfully dissent.
As a reviewing court, we have a duty to determine whether we have jurisdiction on appeal. People v. Smith, 228 Ill. 2d 95, 106 (2008). The majority correctly finds that ordinarily we would have no jurisdiction to consider the State’s appeal because the State failed to appeal the original suppression order within the required 30-day period. People v. Taylor, 50 Ill. 2d 136, 139-40, 277 N.E.2d 878, 880-81 (1971). There is an exception to this jurisdictional bar based on newly presented facts, if those facts represent a material change and if they could not have been previously discovered with due diligence. People v. Williams, 138 Ill. 2d 377, 392, 563 N.E.2d 385, 394 (1990). I agree with the majority that this exception cannot be applied to the defense revelation that the victim had previously made a rape accusation (labeled as “false” by the defense) against a Cleveland Browns football player, who subsequently made child support payments to her. Those facts, or accusations, were disclosed in open court by the defense during the initial pretrial hearing. What I cannot agree with is the majority’s use of that same rape accusation as a basis for invoking the exception, merely because in subsequent discovery the State effectively denied that this had occurred and the defendant then produced a police report indicating that there had been a rape outcry. What the majority seems to overlook is that we are still concerned with an incident which had been revealed earlier. I cannot see how the production of a police report by the defense, which could have been readily obtained by the State, can be said to represent a material change in the facts or a matter which due diligence by the State would not have previously disclosed. The “new fact” which the majority claims is revealed upon its review of the record, thereby allowing the State a second bite of the apple, is not new at all. The majority does not even address the issue of due diligence by the State as to this police report, which is at the crux of the State’s rationale for seeking to invoke the jurisdictional exception.
The State’s motion asking that the trial court reconsider its ruling on the prior crimes evidence came nearly two years too late. The same trial judge evaluated the original evidence in the first hearing and the “new” evidence in the second hearing, so the judge clearly had a solid foundation for his use of discretion. It is also noteworthy that this evidence of the rape outcry and the subsequent payment of child support by the accused, which clearly involves prior sexual conduct by the victim, would in all likelihood be barred under the rape shield statute at the time of trial. 725 ILCS 5/115 — 7(a) (West 2004). The statute provides that in prosecutions for criminal sexual assault, evidence of the past sexual conduct of the victim is barred unless that evidence either relates to sexual conduct with the defendant to bolster the defendant’s claim of consent or would be constitutionally required to be admitted. Our supreme court has made clear that the latter exception does not apply to evidence of prior sexual activity with a third party when that evidence will be used to impeach the victim as to truthfulness. People v. Santos, 211 Ill. 2d 395, 403-09, 813 N.E.2d 159, 163-66 (2004). Thus, all of the machinations by the State and its argument regarding “leveling of the playing field” would be for naught. The defendant will in all likelihood find that none of this information regarding the victim’s prior sexual activity with third parties is available to him in putting on a defense. Likewise, the State should be required to prove its case without the use of the unrelated evidence which the trial court properly barred. Accordingly, I would find that we lack jurisdiction to hear this case and therefore we should dismiss this appeal.
Because of this determination, I would not reach the substantive issue of the admissibility of the prior crimes evidence. But I would just note that the State is not only seeking to reopen an issue which it is clearly barred from reopening, it is also using the alleged mendacity of its primary witness as an illogical excuse for introducing potentially devastating evidence of other crimes. It makes a mockery of the abuse of discretion standard for this court to hold that the trial court abused its discretion in barring one of the defendant’s prior crimes. When the State’s actions are analyzed, this becomes clear. The State failed in its attempt to introduce other crimes evidence against the defendant and the State chose not to appeal that ruling. Only when it became clear to the State that the defense had documentation of the previously revealed rape outcry by the victim against a professional football player did the State then seek to bar that evidence by renewing its motion to introduce evidence of other crimes. In argument before the trial court the State made its plan clear. The assistant State’s Attorney told the court that if the prior convictions were not allowed into evidence then the defendant’s “new discovery” should also be barred. Thus the State in effect sought to force the exclusion of evidence damaging to its case by threatening to obtain the introduction of the previously barred other crimes evidence. The trial court declined to participate in this scheme and this court should affirm the trial court’s ruling, which is clearly consistent with established case law and holds the State accountable for following the law.
Accordingly, I would dismiss this appeal for lack of jurisdiction.