                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Schroeder, 2012 IL App (3d) 110240




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     ALEXANDER SCHROEDER, Defendant-Appellant.



District & No.              Third District
                            Docket No. 3-11-0240


Rule 23 Order filed         March 26, 2012
Motion to publish
allowed                     May 22, 2012
Opinion filed               May 22, 2012


Held                        On appeal from a conviction for driving an overweight truck on a bridge,
(Note: This syllabus        defendant forfeited his arguments that the trial court erred in denying his
constitutes no part of      motion to suppress, not suppressing testimony based on the arresting
the opinion of the court    deputy’s notes and a videotape, and in denying his motion for a directed
but has been prepared       finding, since he did not include those arguments in a posttrial motion or
by the Reporter of          request plain error review; however, defendant did request plain error
Decisions for the           review in his reply brief and on review thereunder, the court upheld the
convenience of the          conviction, where the deputy was justified in stopping defendant based
reader.)
                            on the truck’s slow acceleration, its bulging tires, the way the load sat,
                            and the tractor trailer combination, defendant never sought access to the
                            notes or videotape, there was no probability the result would have been
                            different if they had been disclosed, and the trial court’s failure to comply
                            with the local rule requiring disclosure was not plain error.
Decision Under             Appeal from the Circuit Court of Will County, No. 10-TR-092973; the
Review                     Hon. Roger Rickmon, Judge, presiding.



Judgment                   Affirmed.


Counsel on                 Scott Pyles (argued), of Rathbun, Cservenyak & Kozol, LLC, of Joliet,
Appeal                     for appellant.

                           James Glasgow, State’s Attorney, of Joliet (Terry A. Mertel and Laura E.
                           DeMichael (argued), both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE McDADE delivered the judgment of the court, with opinion.
                           Justices Carter and Holdridge concurred in the judgment and opinion.




                                            OPINION

¶1          After a bench trial, the defendant, Alexander Schroeder, was convicted of driving an
        overweight truck on a bridge (625 ILCS 5/15-111 (West 2010)). The trial court ordered
        defendant to pay a $6,280 fine. We affirm.

¶2                                            FACTS
¶3          Defendant was charged by citation with driving an overweight truck on a bridge.
        Defendant subsequently filed a motion to suppress evidence. The following evidence was
        adduced at the hearing on defendant’s motion.
¶4          Deputy Robert Kikkert was the only witness to testify at the hearing on the motion to
        suppress. Kikkert was employed by Will County as a deputy sheriff in the traffic division.
        He had been an officer for 22 years, and the previous year he had stopped roughly 4,000
        trucks and written 761 tickets for overweight trucks.
¶5          On September 13, 2010, Kikkert issued a citation to defendant. That day, Kikkert was
        on duty as a truck enforcement officer, assigned to look for overweight trucks. Kikkert was
        surveying the bridge on Wilmington-Peotone Road when he saw defendant’s truck pass over
        the bridge. The bridge has a 55-foot length limit and 46,000-pound weight limit.
¶6          After watching defendant’s truck go over the bridge, Kikkert followed the truck and then

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       stopped it, believing it was in violation of both the length and weight restrictions. Based
       upon his observations and experience, Kikkert believed defendant’s truck was longer than
       55 feet. He could tell by looking at the truck that it was over the length limit due to its tractor
       trailer combination. In following the truck, Kikkert observed a slow acceleration, indicative
       of an oversized load on the truck. He also observed the bulging of the pneumatic tires and
       the way the load was sitting on the truck. Knowing the empty weight of the truck and
       observing the load (containing pallets of salt, rock, or feed), Kikkert believed that the truck
       was over the weight limit for the bridge.
¶7          During the hearing, defense counsel asked the State to produce Kikkert’s notes on the
       traffic stop. Kikkert testified that his notes, which had existed only in the computer system’s
       citation database, had been inadvertently eliminated from Will County’s system. A videotape
       of the stop had been made, but, pursuant to county policy, it was destroyed 90 days after the
       ticket was issued. Defense counsel asked for the video, having not made any prior request,
       and argued that the video should not have been destroyed.
¶8          The trial court found that the stop was supported by reasonable suspicion and denied
       defendant’s motion to suppress. Specifically, the trial court found that Kikkert was honest
       in his testimony and that Kikkert testified with some specificity about the stop. The court
       noted that a stop based upon an officer’s conclusion, grounded in his experience, that a
       vehicle looked even slightly over length would be supported by reasonable suspicion. The
       court also found that the stop was justified by Kikkert’s reasonable belief that the vehicle was
       overweight. Finally, the court held it would not grant any motion to suppress due to the
       destruction of the notes and the videotape because no request for discovery had ever been
       made, nor had the court ordered any, and there was no evidence that the destruction was
       willful or intended to impair the defendant’s ability to defend against the charged offense.
¶9          Immediately following the hearing on the motion to suppress, the case proceeded to trial.
       At trial, the State called Kikkert. The parties stipulated to Kikkert’s testimony from the
       hearing on the motion to suppress as a part of defendant’s trial.
¶ 10        Kikkert testified at trial that there are signs prior to the bridge warning that the bridge is
       coming up, and a sign posted at the bridge about the weight limits. He made 4,000 truck
       stops and issued 761 citations in 2010. Kikkert stopped defendant’s truck and had defendant
       drive the truck to South Arsenal Road so it could be weighed with Kikkert’s portable scales.
       The scales had been tested and certified by the United States Department of Agriculture. The
       ground was level and Kikkert made sure the scales all read zero before having defendant
       drive the truck over the scales so that axle number one was centered on the scales. Kikkert
       had defendant stop and let the truck sit on the scales, waited for the scales to register out and
       level out, and then recorded the numbers from the scales. Kikkert then placed a scale under
       axle two and he placed two scales under axles three on both driver’s and passenger’s side.
       He had defendant pull up the truck so the axles were centered on the scales. Kikkert waited
       for the scales to register out, then wrote down the weights displayed on the scales. Next,
       Kikkert had defendant pull his trailer (axles four and five) onto the scales. Kikkert recorded
       the weights of those axles.
¶ 11        Kikkert printed out the weights of the vehicle. He provided defendant with a form


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       detailing the weights of each axle and containing information about bond. Kikkert then
       finished the citation on his computer and waited to see what defendant was going to do about
       bond.
¶ 12       On cross-examination, Kikkert testified that the certification numbers for the scales he
       used were on the traffic citation. He weighed the truck using the procedures he was trained
       to use by the State Police and as he had done for a year. He zeros out the scales each time he
       uses them. The scales perform a self-check when they are turned on, and if there is any
       problem with the scale, it shows up as an error and Kikkert will not use that scale. During
       the weighing, Kikkert’s radio was off, and the electronics in his cruiser were on. His
       electronic equipment does not affect the scales because it does not have a radio frequency
       interference.
¶ 13       The State rested, and defendant moved for a directed finding. During the discussion that
       followed, Kikkert testified that the traffic ticket was printed out from his computer after he
       entered the information on it. The ticket was admitted into evidence. It contains the weights
       of each axle and states that the truck had a gross weight of 78,800 pounds, 32,800 pounds
       in excess of the 46,000 pound limit. The ticket is verified, with Kikkert certifying under
       penalty of perjury that the statements set forth in the ticket are true and correct. The trial
       court denied defendant’s motion for a directed finding.
¶ 14       Defendant testified on his own behalf. He testified that the surface where his truck was
       weighed was not level. He testified that a photograph depicted the uneven surface where his
       truck was weighed. The photograph was admitted into evidence as defendant’s exhibit No.
       1.1
¶ 15       The defense called Kikkert. Kikkert testified that he had typed the location, weights, and
       offense into a computer in preparing the ticket. He had transferred that information to the
       computer from a form he had filled out by hand. Kikkert testified that when a truck is
       weighed on State Police weight scales, the scale master gives the officer a certified weight
       ticket that is put on a State Police ticket form. In the case of Kikkert’s portable scales,
       Kikkert serves as the scale master, writing down the weights displayed on the scale and
       inputting that information into the computer. His scales do not have the capability of printing
       into the computer. On cross-examination, Kikkert testified that he used the portable scales
       to measure defendant’s truck weights because the nearest open stationary scale was 30 miles
       away.
¶ 16       In rebuttal, the State called defendant. He testified that he knew what his truck’s weight
       was when he was on the road in question, and it was 78,000 pounds. He saw the signs
       leading up to the bridge, miles before the bridge and at the bridge, stating that it was a
       weight-restricted bridge limited to 46,000 pounds.
¶ 17       The State called Kikkert, who testified that the South Arsenal Road was not sloping.
       Officers often take trucks there to be weighed. Kikkert determines if the road is level by
       having the truck release its brake while in neutral. The State Police taught Kikkert that if a
       truck in that situation does not roll, that means the road is level. Kikkert takes trucks to that

               1
               Defendant’s exhibit No. 1 is not included in the record on appeal.

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       location all the time, and he has never had a problem with a truck rolling. He testified that
       the weights of the axles on defendant’s truck were not erratic from axle to axle and they were
       not erratic from passenger side to driver’s side. The road is level by state standards.
¶ 18       The trial court found that the road was level enough to give an accurate weight and that
       the weights listed on the ticket had been put in by Kikkert based upon his scale readings. The
       court noted that defendant’s admission of what his truck weighed matched the weight on the
       ticket. The trial court found defendant guilty and issued a fine of $12,560. After Kikkert
       asked that the fine be reduced, the court cut the fine in half to $6,280. The ticket was also
       amended to reflect the reduced fine.
¶ 19       Defendant did not file any posttrial motion. Defendant filed a timely notice of appeal.

¶ 20                                         ANALYSIS
¶ 21       Defendant alleges the trial court erred in: (1) denying his motion to suppress, (2) not
       suppressing the testimony of Kikkert regarding events depicted in the notes and videotape,
       and (3) denying his motion for directed finding. At the outset, the State argues that the
       defendant has forfeited these arguments because he did not include them in a posttrial motion
       and he does not request plain error review. In support, the State cites Illinois Supreme Court
       Rule 341 (eff. July 1, 2008) and our recent decision in People v. De la Hera, 2011 IL App
       (3d) 100301. Defendant, in his reply brief, acknowledges his procedural failures, but submits
       that “claims of error can [still] be analyzed under the plain error doctrine.” Defendant then
       provides us with a substantive plain error analysis.
¶ 22       While we acknowledge that Rule 341(h)(7) provides that “[p]oints not argued are waived
       and shall not be raised in the reply brief, in oral argument, or on petition for rehearing” (Ill.
       S. Ct. R. 341(h)(7)),2 we note that the supreme court has previously considered a defendant’s
       plain error argument raised for the first time in a reply brief. See People v. Williams, 193 Ill.
       2d 306, 348 (2000); People v. Thomas, 178 Ill. 2d 215, 235 (1997). Consequently, we too
       will consider defendant’s plain error argument in the instant case. Moreover, we find De la
       Hera to be factually distinguishable on the basis that the defendant in De la Hera never
       requested plain error review. Here, defendant did request plain error review, albeit in his
       reply brief. We now turn to the merits of defendant’s appeal.
¶ 23       It is well settled that the plain error doctrine allows a reviewing court to consider
       unpreserved error when: (1) a clear or obvious error occurred and the evidence is so closely
       balanced that the error alone threatened to tip the scales of justice against the defendant; or
       (2) a clear or obvious error occurred, and the error is so serious that it affected the fairness
       of the defendant’s trial and the integrity of the judicial process, regardless of the closeness
       of the evidence. People v. Herron, 215 Ill. 2d 167, 178-79 (2005). However, in addressing
       a plain error argument, we must first consider whether error occurred at all. People v.
       Hudson, 228 Ill. 2d 181, 191 (2008).


               2
               Supreme Court Rule 341 is made applicable to criminal appeals by Illinois Supreme Court
       Rule 612 (eff. Sept. 1, 2006).

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¶ 24                                     Motion to Suppress
¶ 25        First, defendant argues that the trial court should have granted his motion to suppress
       because Kikkert lacked a reasonable and articulable suspicion to justify the traffic stop. In
       reviewing a motion to suppress on appeal, we are presented with mixed questions of law and
       fact. People v. Smith, 214 Ill. 2d 338, 347 (2005). A trial court’s factual determinations and
       assessment of witness credibility will be reversed on appeal only if manifestly erroneous.
       People v. Ramsey, 362 Ill. App. 3d 610, 614 (2005). The ultimate determination of whether
       the evidence is suppressed, however, is entitled to de novo review. People v. Nicholas, 218
       Ill. 2d 104, 116 (2005).
¶ 26        The temporary detention of an individual during a vehicle stop is a seizure within the
       meaning of the fourth amendment. People v. Hall, 351 Ill. App. 3d 501, 503 (2004). In Terry,
       the United States Supreme Court created a limited exception to the requirement that seizures
       be supported by probable cause. Terry v. Ohio, 392 U.S. 1, 30-31 (1968). Under the
       standards set forth in Terry, an officer may briefly detain and question individuals to
       investigate possible criminal behavior if “specific and articulable facts which, taken together
       with rational inferences from those facts, reasonably warrant that intrusion” are present.
       Terry, 392 U.S. at 21. This standard is impossible to define with precision. Ornelas v. United
       States, 517 U.S. 690, 695 (1996). However, the United States Supreme Court has held that
       the level of suspicion necessary to justify a detention under the Terry standard is
       “considerably less than proof of wrongdoing by a preponderance of the evidence.” United
       States v. Sokolow, 490 U.S. 1, 7 (1989).
¶ 27        Here, the trial court found the stop was justified by Kikkert’s reasonable suspicion that
       defendant’s truck was in violation of both the length and weight restrictions. The court found
       Kikkert’s testimony to be credible. In doing so, the court noted Kikkert’s extensive
       experience in this specific area of law and the fact that Kikkert’s belief was grounded upon
       specific facts he witnessed–the truck’s slow acceleration, the truck’s bulging tires, the way
       the truck’s load was sitting and the tractor trailer combination. We cannot say that the trial
       court’s factual determinations and assessment of credibility were manifestly erroneous.
       Therefore, we conclude that the trial court properly denied defendant’s motion to suppress.
¶ 28        In coming to this conclusion, we reject defendant’s reliance upon the fact that Kikkert
       did not cite defendant for an over-length violation. As the trial court correctly observed, an
       officer may have a reasonable suspicion that an individual is engaging in criminal conduct
       even if it turns out, upon investigation, that the conduct was innocent. “The facts supporting
       the officer’s suspicion ‘should be considered from the perspective of a reasonable officer at
       the time the situation confronted him rather than viewed with analytical hindsight.’ ” People
       v. Mendez, 371 Ill. App. 3d 773, 776 (2007) (quoting People v. Ware, 264 Ill. App. 3d 650,
       654 (1994)). Moreover, Kikkert’s testimony regarding the truck’s slow acceleration, bulging
       tires and the way the load was sitting on the truck, in combination with Kikkert’s experience,
       reasonably supports his suspicion that the truck was overweight and, thus, independently was
       sufficient to justify the stop. Kikkert did not need to believe that the truck was both
       overweight and overlength. Because both violate Illinois law, either of these beliefs, standing


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       alone, would have been sufficient to justify the traffic stop.
¶ 29       Finally, we reject defendant’s claim that Kikkert immediately initiated the traffic stop
       when he saw the truck go over the bridge, before observing any indicators that the truck was
       overweight. The record shows that while Kikkert may have decided to follow the truck based
       upon his suspicion that it was overlength, he did not initiate the stop at that point in time.
       Instead, Kikkert testified that he followed the truck during which time he developed a
       reasonable suspicion of a weight violation. Upon developing this additional suspicion,
       Kikkert effectuated the traffic stop. Kikkert expressly testified that he had “several reasons”
       for stopping defendant’s truck. Since there was no error regarding the trial court’s denial of
       defendant’s motion to suppress, a plain error analysis is not necessary.

¶ 30                                     Notes and Videotape
¶ 31        Second, defendant argues that the trial court erred in not suppressing the testimony of
       Kikkert regarding events depicted in the notes and videotape. A reviewing court will not
       reverse a trial court’s decision regarding the scope of a witness’s testimony absent an abuse
       of discretion. People v. Allen, 375 Ill. App. 3d 810, 815 (2007).
¶ 32        Defendant believes suppression of Kikkert’s testimony was necessary on three separate
       grounds. First, defendant contends that the State violated his right to due process by failing
       to disclose to the defense all exculpatory evidence, as required by Brady v. Maryland, 373
       U.S. 83 (1963). Specifically, the defendant argues that the State violated the Brady rule by
       failing to disclose the notes and videotape. Second, defendant contends that suppression was
       required because the State violated the rule espoused in People v. Kladis, 2011 IL 110920.
       The holding in Kladis provides that a non-due-process discovery violation may be found
       where the State, without bad faith, destroys relevant evidence after being put on notice of
       defendant’s request for the evidence. Third, defendant contends that suppression was
       required because the trial court failed to comply with Twelfth Circuit Local Rule 15.09 (12th
       Judicial Cir. Ct. R. 15.09 (Aug. 3, 2009) (hereinafter, Local Rule 15.09), which requires the
       trial court to order discovery at first appearance.
¶ 33        To establish a Brady violation, the undisclosed evidence must be both favorable to the
       accused and material. Brady, 373 U.S. at 87-88. Favorable evidence is material “ ‘if there is
       a reasonable probability that, had the evidence been disclosed to the defense, the result of the
       proceeding would have been different.’ ” People v. Coleman, 183 Ill. 2d 366, 393 (1998)
       (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). When evidence is only
       potentially useful, not material exculpatory evidence, a failure to preserve the evidence does
       not violate due process unless the defendant can show bad faith by the State. Illinois v.
       Fisher, 540 U.S. 544, 548 (2004) (per curiam).
¶ 34        Here, we cannot say that there is a “ ‘reasonable probability that, had the *** [notes and
       videotape] been disclosed to the defense, the result of the proceeding would have been
       different.’ ” See Coleman, 183 Ill. 2d at 393 (quoting United States v. Bagley, 473 U.S. at
       682). Defendant testified that he knew what his truck weighed at the time he was on the road
       in question. Specifically, he stated it was “78,000 or something.” The truck’s weight, as
       recorded by Kikkert, was 78,800 pounds, 32,800 pounds in excess of the 46,000-pound limit.

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       Defendant admitted that he saw the signs leading up to the bridge, miles before the bridge
       and at the bridge, stating that it was a weight-restricted bridge limited to 46,000 pounds. In
       light of these facts, we cannot reasonably say the notes and videotape were “favorable to the
       accused.” See Brady, 373 U.S. at 87-88. Thus, defendant is not entitled to relief under Brady.
       Moreover, because defendant acknowledges that “there was no evidence of any bad faith on
       behalf of the State in the purged evidence,” he is not entitled to relief even in the
       circumstance that the notes and videotape could be considered potentially useful, as opposed
       to exculpatory. See Fisher, 540 U.S. at 548.
¶ 35        Defendant also is not entitled to relief under Kladis. In Kladis, the defendant was charged
       with driving under the influence of alcohol. She requested that the State produce the video
       recording of the stop made by the camera located in the arresting officer’s vehicle. The State
       subsequently destroyed the recording. The trial court granted defendant’s motion for
       sanctions and barred the State from introducing testimony concerning the videotape. The
       supreme court affirmed. Kladis, 2011 IL 110920, ¶ 48. Specifically, the court found that the
       video recording was relevant. Kladis, 2011 IL 110920, ¶ 38. Therefore, upon receiving the
       written notice to produce the video recording of a traffic stop 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. Kladis, 2011 IL 110920, ¶ 38.
¶ 36        Here, defendant did not tender any discovery request for the notes or the tapes. Rather,
       defendant did not seek access to the notes or videotape until the middle of the hearing on
       defendant’s motion to suppress at which time they had already been destroyed. We therefore
       find Kladis to be factually distinguishable. The instant case simply does not present us with
       a situation where defendant requested evidence and the State subsequently destroyed it.
¶ 37        Defendant also claims he is entitled to relief under Local Rule 15.09 which provides:
                “In all misdemeanor and aggravated traffic cases discovery in accordance with
            People v. Schmidt shall be ordered by the Court at first appearance, without the necessity
            of a formal written motion.” 12th Judicial Cir. Ct. R. 15.09 (Aug 3, 2009).
¶ 38        The supreme court in People v. Schmidt, 56 Ill. 2d 572, 575 (1974), stated:
                “The State is required to furnish defendants in misdemeanor cases with a list of
            witnesses [citation], any confession of the defendant [citation], evidence negating the
            defendant’s guilt [citation], and *** the results of the breathalyzer test [citation].
            Additionally, the report which the defendant seeks will be available at trial for use in
            impeachment of the prosecution witness who prepared it. [Citation.]”
¶ 39        The trial court did not order discovery in this case. Thus, we find the trial court
       committed error in failing to comply with Local Rule 15.09. Our inquiry, however, does not
       end there as we still must determine whether the trial court’s failure to order discovery
       constitutes plain error.
¶ 40        Upon review, we find the evidence is not closely balanced. We also find that the trial
       court’s error in failing to order discovery was not so serious that it affected the fairness of
       the defendant’s trial and the integrity of the judicial process. Both of these findings are based
       upon the fact that defendant admitted, at trial, that he knew that his truck weighed
       approximately 78,000 pounds. Defendant also admitted that he knew the maximum allowed

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       weight was 46,000 pounds. In light of these admissions, we cannot say that the trial court’s
       failure to comply with Local Rule 15.09 constitutes plain error.

¶ 41                                          Directed Finding
¶ 42       Finally, defendant argues that the trial court erred in not granting his motion for directed
       finding. “It is well settled that if a defendant chooses to present evidence following the denial
       of his motion for a directed finding at the close of the State’s evidence, he waives any error
       resulting from the trial court’s ruling on the motion unless he renews his motion at the close
       of all evidence.” People v. Cazacu, 373 Ill. App. 3d 465, 473 (2007).
¶ 43       Here, the record clearly shows that defendant did not renew his motion for directed
       finding at the close of evidence and thus waived any error resulting from the trial court’s
       ruling. We reject defendant’s contention that simply asserting, during closing argument, that
       the State failed to meet its burden of proof constitutes a valid renewal of his motion for
       directed finding. Acceptance of such a position would in essence abolish any formal renewal
       requirement in light of the fact that the vast majority of criminal closing arguments include
       challenges to the State’s evidence. In coming to this conclusion, we note that this case has
       been notable for other procedural failures by defendant–failure to file a posttrial motion and
       failure to request plain error review in his initial appellate brief. We will not excuse
       defendant’s procedural failure to renew his motion for directed finding at the close of
       evidence.
¶ 44       For the foregoing reasons, we affirm the judgment of the trial court.

¶ 45       Affirmed.




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