                                  Illinois Official Reports

                                          Appellate Court



                             People v. Strobel, 2014 IL App (1st) 130300



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



District & No.               First District, Second Division
                             Docket No. 1-13-0300



Filed                        June 30, 2014



Held                         In a prosecution for driving under the influence of alcohol where the
(Note: This syllabus         arresting officer failed to activate the audio portion of the in-squad
constitutes no part of the   video camera during the stop and the sobriety tests defendant
opinion of the court but     performed, the trial court’s discovery sanction, imposed after the State
has been prepared by the     tendered to defendant the video without any audio, barring the State
Reporter of Decisions        from presenting any testimony or video regarding the field sobriety
for the convenience of       tests due to the lack of an audio recording was an abuse of discretion,
the reader.)                 since there was no indication the State intentionally or inadvertently
                             destroyed any discoverable evidence, everything the State had was
                             given to defendant, and there was no discovery violation warranting
                             the imposition of the sanctions imposed or the exclusion of the
                             evidence requested in defendant’s motion in limine.




Decision Under               Appeal from the Circuit Court of Cook County, No. YW-020-052; the
Review                       Hon. Noreen M. Daly, Judge, presiding.



Judgment                     Reversed and remanded.
     Counsel on               Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
     Appeal                   Annette Collins, and John E. Nowak, Assistant State’s Attorneys, of
                              counsel), for the People.

                              Thomas A. Moore, of Palos Hills, for appellee.




     Panel                    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.
¶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

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     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.
¶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 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 through 417, 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

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       compliance. Id. 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.
       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 821-22 (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 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


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       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
       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 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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