                                    2014 IL App (1st) 130300


                                                                              SECOND DIVISION
                                                                              June 30, 2014
No. 1-13-0300



THE PEOPLE OF THE STATE OF ILLINOIS,                          )      Appeal from the
                                                              )      Circuit Court of
                       Plaintiff-Appellant,                   )      Cook County
                                                              )
v.                                                            )      No. YW-020-052
                                                              )
THOMAS STROBEL,                                               )      Honorable
                                                              )      Noreen M. Daly,
                       Defendant-Appellee.                    )      Judge Presiding.



       JUSTICE PIERCE delivered the judgment of the court, with opinion
       Presiding Justice Harris and Justice Liu concurred in the judgment and opinion.


                                              OPINION

¶1     Defendant Thomas Strobel was arrested and charged with the misdemeanor offenses of

driving under the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 2012)) and speeding (625

ILCS 5/11-601(b) (West 2012)). In response to a discovery motion, the State tendered to

defendant a squad car video of the arrest of the defendant and his performing field sobriety tests.

The video did not contain any audio. The trial court entered a discovery sanction that barred the

State from presenting any testimony or video at trial regarding the field sobriety tests due to the

lack of a contemporaneous audio recording. The State appeals, contending that the circuit court

abused its discretion by imposing the discovery sanction where the State promptly tendered the

video that contained no audio of the traffic stop because no audio was ever recorded. We reverse

and remand.
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¶2       On November 1, 2012, Orland Park police officers stopped defendant after observing him

driving at a speed of 59 miles per hour in a 45-mile-per-hour zone. The officers' report noted

that defendant had glassy/watery eyes, his breath smelled of alcohol, and he stated that he drank

two beers. The officers further reported that defendant refused chemical testing to determine the

alcohol content in his system, and that he failed the field sobriety tests they administered on the

scene.

¶3       On December 12, 2012, defendant filed a "Motion In Limine and for Discovery

Sanctions." In support of his motion, defendant stated that he issued a subpoena to the Orland

Park police department requesting all video and audio recordings taken in this case. The squad

car video was given to his attorney, but the video did not contain any audio. Defendant

requested an order to exclude any testimony, observations, and conversations from the State's

witnesses regarding events captured on the in-squad video where police obtained witness

statements and evidence against him that was not tendered to the defense. Defendant asserted

that the absence of any audio was the "destruction of evidence" of what occurred during the

traffic stop, which constitutes a discovery violation. Relying on People v. Kladis, 2011 IL

110920, defendant argued that traffic stop videos of an arrest are to be preserved until final

disposition of a case and that sanctions against the State barring it from using the officer's

testimony and the video evidence may be imposed where video evidence was destroyed after it

was requested. Defendant moved the trial court to enter an order that the video and audio

recording is required discovery pursuant to Kladis, grant his motion in limine to preclude

testimony by the State's witnesses as to any matters captured on the video that does not have an

audio component, and allow a favorable presumption that any unrecorded audio portions of the

video would have been beneficial to him had it been produced.


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¶4     The State responded that the audio was unavailable because the police officer forgot to

activate the audio device in his car when he approached defendant. The State also argued that

unlike Kladis, which involved a video that existed but was destroyed after the discovery request,

the audio portion of the video in this case never existed. Therefore, since no audio was ever

recorded, a discovery violation was impossible because there was never an audio recording in the

State's possession or control to tender.

¶5     On December 21, 2012, the court ruled that, in light of the absence of any audio, there

was a discovery violation. The court ruled that it would allow testimony about the traffic stop up

to the point of administration of the field sobriety tests and any video up to that point. The court

sanctioned the State by not allowing any testimony about the field sobriety tests and by

prohibiting the introduction of any video that showed the performance of those tests "because of

the importance of the instruction phase" and there was no "tape on that." The trial court

explained that "the reason for this introduction of this video and expectation of their use is not

only to protect police and aid the state in the prosecution of these matters, but it is also, from this

Court's perspective, in many instances it protects the defendants both in terms of what they say

and how they do." The State filed a certificate of substantial impairment and timely filed this

appeal from the sanction order. Ill. S. Ct. R. 604 (a) (eff. July 1, 2006).

¶6     The State contends that the trial court abused its discretion when it issued the discovery

sanction barring testimony and video of the field sobriety tests. The State argues that no

discovery violation occurred because it promptly tendered what it possessed and controlled: the

video of the incident that had no audio component.

¶7     We review a trial court's decision regarding sanctions for a discovery violation under the

abuse of discretion standard of review. Kladis, 2011 IL 110920, ¶ 23. The trial court abuses its


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discretion only in cases where the court's decision is arbitrary, fanciful, or where no reasonable

person would take the view adopted by the trial court. Id.

¶8     Illinois Supreme Court Rules 411 (eff. Dec. 9, 2011) through 417 (eff. Mar. 1, 2001),

provide for discovery in criminal cases. The rules apply only to cases in which a defendant may

be imprisoned for a felony. Ill. S. Ct. R. 411 (eff. Dec. 9, 2011). However, in People v.

Schmidt, 56 Ill. 2d 572 (1974), the supreme court provided for limited discovery in misdemeanor

cases. The court held that the State must furnish the defendant with a list of witnesses, any

confession by the defendant, evidence negating the defendant's guilt, and the results of a

Breathalyzer test. Id. at 575. The supreme court later observed that the holding in Schmidt did

not establish 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" and expanded

discovery in misdemeanor cases to include any relevant videotape made by an in-squad camera

of the events leading to the defendant's arrest. Kladis, 2011 IL 110920, ¶¶ 26-29.

¶9     "The goals of discovery are to eliminate surprise and unfairness and to afford an

opportunity to investigate." People v. Rubino, 305 Ill. App. 3d 85, 87 (1999). Discovery

sanctions are not designed to punish and should be used to further these goals and to compel

compliance. Id. at 87. However, harsh sanctions, such as the exclusion of evidence, may be

warranted where the defendant is denied a full opportunity to prepare his defense and make

tactical decisions with the aid of the information that was withheld. People v. Leon, 306 Ill. App.

3d 707, 713-14 (1999). When the State fails to comply with a discovery order, the "court may

order a variety of sanctions, including discovery of the previously undisclosed statement, a

continuance, the exclusion of the evidence in toto, or some other remedy it sees fit." People v.




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Harper, 392 Ill. App. 3d 809, 821-22 (2009). The exclusion of evidence is generally not a

preferred sanction because it does not further the goal of truth seeking (People v. Edwards, 388

Ill. App. 3d 615, 628 (2009)) and is an appropriate sanction only in the most extreme situations

and is disfavored (Harper, 293 Ill. App. 3d at 821-822 (citing People v. Walton, 376 Ill. App. 3d

149, 157 (2007))).

¶ 10   In this case, the trial court resolved the motion in limine based on its interpretation of the

supreme court decision in Kladis. In Kladis, the police officer's squad car was equipped with

video recording equipment. The defense promptly requested a copy of the video recording of the

traffic stop that resulted in the driving under the influence arrest. This timely, prehearing request

came before all copies of the video recording were destroyed. As a sanction for the destruction

of the relevant video recording evidence, the trial court barred the State from presenting any

testimony regarding what was depicted in the video recording. Kladis, 2011 IL 110920, ¶ 15.

Our supreme court held that the trial court did not abuse its discretion by imposing this sanction

based upon the circumstances involving the destruction of the video that admittedly existed at the

time the discovery request was made. Id. ¶¶ 39, 46.

¶ 11   The record in this case is clear that no audio recording of the police encounter with the

defendant ever existed. Kladis does not stand as authority for imposing a sanction against the

prosecution where the requested discovery material never existed in the first instance. Kladis

instructs that a non-due-process discovery violation may be found where the State, without bad

faith, destroyed relevant evidence after being put on notice of the defendant's request for the

evidence. Id. ¶ 39. Here, when the police stopped defendant they failed to activate the audio

recording function on their squad car video camera. As a result, the State tendered to defendant's

attorney everything it possessed and controlled: the video of the traffic stop without an audio


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component. There is nothing in this record to support any inference or suggestion that the police

or the prosecution intentionally or inadvertently destroyed any preexisting discoverable

evidence. Therefore, the imposed exclusion sanction punished the prosecution for something

that was outside its control and cannot reasonably be viewed as conduct that caused unfairness to

the defendant or deprived him of an opportunity to prepare his defense.

¶ 12   Defendant argues that it is possible that an audio portion of the video may have helped

defendant's defense. It is equally possible the unrecorded audio had "the potential to banish any

hope of exoneration." People v. Gentry, 351 Ill. App. 3d 872, 878 (2004). We cannot resolve

this question by pondering possibilities. We must consider only that which is certain: there never

was an audio recording of the events leading to defendant's field sobriety test. Given the facts of

this case, absent a showing that the State lost or destroyed the audio component of the video or

the existence of some other factor to justify a discovery sanction, there was an abuse of

discretion in barring testimony concerning the field sobriety tests and in prohibiting the

introduction of any video that showed the performance of those tests due to the State's failure to

produce any recording of any audio that presumably occurred at the time the video was created.

For these reasons, we find no discovery violation that supports the imposition of the sanctions

imposed or the exclusion of the evidence requested in defendant's motion in limine. See People

v. Hobley, 159 Ill. 2d 272, 308 (1994) (where the court could not be certain the requested

fingerprint report was ever in the possession, control or available to the State, the State was

under no obligation to produce the report).

¶ 13   We find that the trial court abused its discretion in granting defendant's motion and

barring any testimony about the field sobriety tests and prohibiting the introduction of that part

of the video that showed the performance of those tests because of the lack of any audio


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recording. In reaching this conclusion, we find unpersuasive defendant's argument that the trial

court's sanction was reasonable because it was not severe enough. In particular, defendant

"prays that this Court expand the sanction of the trial court to include all evidence from the time

of the initial interaction of the parties until the end of the video." As the State correctly argues in

its reply brief, we have no jurisdiction to expand the scope of the sanctions entered. See People

v. Johnson, 208 Ill. 2d 118, 138 (2003) ("The reviewing court has no jurisdiction over evidence

not suppressed by the trial court and may not entertain arguments by a defendant to suppress

evidence which was not suppressed by the trial court in the first instance."). Substantively, his

argument is without merit because, as explained above, the State fully complied with this aspect

of the discovery request, and thus the circuit court abused its discretion in finding a discovery

violation in this regard.

¶ 14    We also find People v. Ebener, 161 Ill. App. 3d 232 (1987), and People v. Taylor, 54 Ill.

App. 3d 454 (1977), relied on by defendant, distinguishable from the case at bar. In both Ebener

and Taylor, the evidence in question was destroyed or consumed during chemical testing. As a

result, the trial court in Ebener held that a discovery violation occurred and sanctioned the State

by preventing it from using the results of the scientific tests at trial. Ebener, 161 Ill. App. 3d at

235. This court affirmed the trial court, holding that the sanction was an appropriate remedy. Id.

at 236-37. In Taylor, after the trial court denied the defendant's motion to exclude testimony

regarding the chemical testing, he was convicted of delivery of a controlled substance. This

court reversed and remanded the matter for a new trial, finding that the defendant "was denied

due process of law and the opportunity for meaningful confrontation of the witnesses against him

by the State's unnecessary destruction of the allegedly prohibited substance which he allegedly

delivered to agents of the State." Taylor, 54 Ill. App. 3d at 457. Here, in contrast to Ebener and


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Taylor, the State never destroyed any evidence because no audio recording ever existed.

¶ 15   For the foregoing reasons, we reverse the trial court's order imposing sanctions and

remand the matter for further proceedings.

¶ 16   Reversed and remanded.




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