                             ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           People v. Porter-Boens, 2013 IL App (1st) 111074




Appellate Court               THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                       ZONEIKE PORTER-BOENS, Defendant-Appellant.



District & No.                First District, Fourth Division
                              Docket No. 1-11-1074


Filed                         September 5, 2013


Held                          On appeal from defendant’s convictions for aggravated battery and
(Note: This syllabus          resisting a police officer, the appellate court upheld the trial court’s
constitutes no part of        decision quashing defendant’s subpoena for records of the 19 civilian
the opinion of the court      complaints against the arresting officer, since the trial court applied the
but has been prepared         proper standard in its in camera review of the complaints, with the
by the Reporter of            exception of two complaints that were distinct and too remote in time to
Decisions for the             be admissible, no discipline was imposed on the officer, the police
convenience of the            authorities found all of the claims were unfounded or not sustained by
reader.)
                              sufficient evidence, and the complaints were not similar to defendant’s
                              case.


Decision Under                Appeal from the Circuit Court of Cook County, No. 08-CR-18884; the
Review                        Hon. Mary Margaret Brosnahan, Judge, presiding.



Judgment                      Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Todd T. McHenry, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Miles
                           J. Keleher, and Douglas P. Harvath, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      PRESIDING JUSTICE HOWSE delivered the judgment of the court,
                           with opinion.
                           Justices Palmer and Taylor concurred in the judgment and opinion.




                                             OPINION

¶1          Following a bench trial, the circuit court of Cook County convicted defendant Zoneike
        Porter-Boens of aggravated battery and resisting a police officer and sentenced her to a two-
        year term of felony probation. On appeal, we are asked to determine whether the trial court’s
        ruling quashing defendant’s subpoena for the records of civilian complaints against
        Lieutenant Glenn Evans, the arresting officer, was correct. Defendant requests this court
        examine the records, which were reviewed by the trial court in camera, to determine if its
        judgment was correct. The State agrees that an in camera examination of the documents by
        this court is necessary to properly review the trial court’s ruling. For the following reasons,
        we affirm the trial court’s evidentiary ruling.

¶2                                         BACKGROUND
¶3          Briefly stated, the evidence presented at trial established that on September 19, 2008,
        while en route to a reported burglary alarm, Lieutenant Evans stopped to investigate a pit bull
        running in the vicinity of 7500 South Parnell in Chicago apparently chasing a couple of
        children. Lieutenant Evans saw a man, later identified as Sam Boens, with the dog off leash.
        He told Boens to leash the dog. Boens did not do so, and Lieutenant Evans testified the dog
        began approaching him in an aggressive manner. Lieutenant Evans fired three shots, one of
        which hit the dog. Defendant approached Lieutenant Evans, screaming. Lieutenant Evans
        asked if the dog belonged to her and defendant replied that it did. Lieutenant Evans attempted
        to place defendant under arrest and, Lieutenant Evans testified, defendant stepped back and
        punched him in the chest. Lieutenant Evans attempted to restrain defendant and she
        continued to strike Lieutenant Evans. Other officers arrived to assist and ultimately arrested
        defendant. Lieutenant Evans suffered minor lacerations and bite marks and a broken ankle
        as a result of the altercation with defendant.


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¶4       At the time of the shooting, Lieutenant Evans had 19 prior complaints filed against him.
     Defense counsel indicated to the trial court that he wanted to review all Office of
     Professional Standards (OPS), now the Independent Police Review Authority (IPRA), files
     related to Lieutenant Evans, including an investigation concerning the shooting of Boens’
     dog. Defense counsel stated he sought the information to learn what the investigation into
     this incident had learned and “to find out if this has ever happened before with the officer.”
     The trial judge instructed defense counsel to subpoena the records and request that OPS hand
     deliver the files to the trial court for an in camera review. After more than a year, OPS and
     the IPRA provided 12 of the 19 requested documents.1 The trial court learned from the IPRA
     attorney that seven older files were still under the control of the OPS and were stored in a
     warehouse, and IPRA was having difficulty retrieving them.
¶5       On July 29, 2010, the trial court ruled that 3 of the 12 complaints, filed between 2000 and
     2005, were too remote in time from the 2008 shooting to be relevant. In the court’s view, the
     remaining nine complaints concerned “generalized misconduct.” The court quashed
     defendant’s subpoena. The court subsequently found defendant guilty following a bench trial.
     This timely appeal followed.

¶6                                         ANALYSIS
¶7        The sole issue on appeal is whether the trial court’s ruling quashing defendant’s subpoena
     for Lieutenant Evans’ records was proper. Defendant does not contend that the records are
     not confidential. When confidential records are sought in discovery, the trial court should
     review the records in camera and use its discretion to disclose only material information.
     People v. Bean, 137 Ill. 2d 65, 99 (1990). Any “immaterial” record should remain
     undisclosed. Id. at 102. On appeal, defendant asks this court to examine the records
     pertaining to Lieutenant Evans for other instances that may be relevant to show Lieutenant
     Evans’ intentions during the incident.
¶8        On June 13, 2012, defendant filed a motion in this court requesting we order IPRA to
     send all files involving Lieutenant Evans to the circuit court clerk with directions to impound
     the documents, supplement them to the record, and transmit the files to us for review. On
     June 28, 2012, we entered an order remanding this case to the trial court to recompile the
     same 12 records it reviewed in camera, and ordering the clerk of the circuit court to transmit
     those records to this court. Defendant did not raise an issue with regard to the remaining
     seven records, which IPRA was apparently unable to retrieve from the OPS warehouse, in
     the trial court or in this court.
¶9        “The trial court has broad discretion in ruling on issues of relevance and materiality and
     its determination will not be disturbed absent an abuse of discretion.” People v. Williams,
     267 Ill. App. 3d 82, 87 (1994). “A claim that the trial court erred in limiting discovery will
     be reviewed for an abuse of discretion.” People v. Sutherland, 223 Ill. 2d 187, 280 (2006).



             1
               Defendant presumes that the investigative report into the instant shooting was not included
     as the trial court did not mention it while discussing the in camera review.

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¶ 10        Defendant maintains the trial court reviewed the records too narrowly. The State
       responds the trial court applied the correct rule of law to determine whether the records were
       discoverable. Defendant has retreated from her initial argument that the trial court failed to
       explain the basis upon which it determined that the records were not discoverable, but
       defendant maintains the criteria the court used to preclude the defense from examining the
       records may have improperly infringed upon defendant’s right to confront Lieutenant Evans.
       Therefore, we address whether the record reveals if the trial court applied the correct criteria
       in its review of the records, because “[i]f the court’s decision rests on an error of law, ***
       then it is clear that an abuse of discretion has occurred, as it is always an abuse of discretion
       to base a decision on an incorrect view of the law.” Thompson v. Gordon, 356 Ill. App. 3d
       447, 461 (2005).
¶ 11        Prior allegations of misconduct by a police officer may be admissible to prove intent,
       plan, motive, or a course of conduct of the officer (People v. Cannon, 293 Ill. App. 3d 634,
       640 (1997) (citing Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th Cir. 1993))), or to
       impeach an officer as a witness based on bias, interest, or motive to testify falsely (People
       v. Nelson, 235 Ill. 2d 386, 421 (2009)). To be admissible, the allegations of prior misconduct
       may not be general in nature or remote in time. Cannon, 293 Ill. App. 3d at 641. Further,
       “evidence used to impeach must raise an inference that the witness has something to gain or
       lose by his testimony; the evidence must not be remote or uncertain.” Nelson, 235 Ill. 2d at
       421.
¶ 12        In People v. Banks, 192 Ill. App. 3d 986, 994 (1989), the court held that “a 13-month
       period between virtually identical incidents of brutality by police officers is not too remote
       to tend to prove the type of conduct used by the particular police officers.” Banks, 192 Ill.
       App. 3d at 994. In People v. Patterson, 192 Ill. 2d 93 (2000), our supreme court did not
       address directly the question of the admissibility of past misconduct by a police officer in a
       criminal trial; nonetheless, its discussion of the admissibility of prior allegations of police
       brutality is instructive on the issue of whether prior allegations would be admissible to prove
       intent, plan, motive, or a course of conduct. The Patterson court found that “a single incident
       years removed has little relevance. However, a series of incidents spanning several years can
       be relevant to establishing a claim of a pattern and practice ***.” Patterson, 192 Ill. 2d at
       140. The court further found as follows:
                “In past cases, this court has declined to find evidence of prior police brutality to be
            relevant when the defendant offered only generalized allegations *** and when the
            allegations *** were not similar and occurred three years before the case at bar.
            [Citation.]
                *** The appellate court also has found evidence of prior allegations of brutality
            admissible where the defendant could present evidence that ‘the police officers who
            questioned him systematically tortured other suspects to obtain confessions at or near the
            time he was questioned.’ [Citation.] Additionally, the United States Court of Appeals,
            Seventh Circuit, has found evidence of prior allegations of brutality admissible when it
            involves the same officer, involves similar methods of torture, and occurs at or near the
            time of the current allegation.” Patterson, 192 Ill. 2d at 115.


                                                 -4-
¶ 13       In People v. Coleman, 206 Ill. 2d 261, 269 (2002), the defendant issued subpoenas to
       OPS for its files on a detective involved in his case. A hearing on a motion to quash the
       subpoena revealed that the records contained eight complaints against the detective, five of
       which were not sustained and three of which were completely unfounded. The trial court
       granted the motion to quash, finding no basis for reviewing the file. Coleman, 206 Ill. 2d at
       269. In a motion for additional discovery, the defendant identified six alleged incidents of
       abuse of arrestees by the detective and alleged that lawsuits had been filed and at least two
       judgments obtained. The defendant also alleged that the detective had been suspended as a
       result of one of the lawsuits. Coleman, 206 Ill. 2d at 272. On appeal, the defendant argued
       that the trial court abused its discretion by failing to permit cross-examination of the
       detective about the allegations of misconduct in other cases. Id. at 278.
¶ 14       The court held that the trial court did not abuse its discretion in refusing to reopen cross-
       examination so that the defendant could question the detective about what the court found
       to be irrelevant matters. Coleman, 206 Ill. 2d at 282-83. The additional matters were
       irrelevant because the defendant in Coleman did not allege that the detective physically
       abused him in any manner. Id. at 282. The Coleman court also noted that the detective’s only
       duty with regard to the case was to conduct a lineup, and the civil suits the defendant sought
       to explore did not concern the detective’s action in conducting lineups. Coleman, 206 Ill. 2d
       at 282.
¶ 15       In Nelson, the trial court granted the State’s motion in limine to exclude evidence of a
       federal complaint against two detectives who interrogated the defendant. The plaintiff in the
       federal complaint alleged the detectives violated his civil rights and coerced a false
       confession. Nelson, 235 Ill. 2d at 420. The defendant in Nelson wanted to admit evidence of
       the allegations in the federal complaint to demonstrate that the same detectives used similar
       interrogation techniques on him and obtained a false confession, and that the pending lawsuit
       gave the detectives an incentive to minimize their testimony regarding the defendant’s
       interrogation. Id. Our supreme court found that case law established that the trial court did
       not abuse its discretion in refusing to allow the defendant to use the federal lawsuit to
       impeach the detectives. Id. at 421.
¶ 16       The Nelson court relied on People v. Davis, 193 Ill. App. 3d 1001, 1005 (1990), in which
       the appellate court affirmed a trial court’s order refusing to allow a defendant in a criminal
       case to cross-examine a police officer regarding two prior lawsuits “due to the lack of
       disciplinary action and the fact that the pending lawsuit was not related to the defendant’s
       case.” Nelson, 235 Ill. 2d at 421 (citing Davis, 193 Ill. App. 3d at 1005). Our supreme court
       contrasted two other cases in which impeachment was held to be proper, People v. Phillips,
       95 Ill. App. 3d 1013 (1981), and People v. Robinson, 56 Ill. App. 3d 832 (1977). The court
       noted that in each of those cases, the officers had been disciplined with suspension from the
       police force, whereas the defendant in Nelson had not identified any disciplinary actions
       taken against the police officers. Nelson, 235 Ill. 2d at 422.
¶ 17       Based on the foregoing authorities, we find that, when determining whether evidence of
       prior allegations of misconduct is admissible, the question of relevancy is a determination
       to be made by the trial court after a consideration of the temporal proximity of the past
       misconduct, whether there is a repetition of similar misconduct, and the similarity of the past

                                                 -5-
       misconduct to the conduct at issue in the case before the court. Patterson, 192 Ill. 2d at 140-
       45. The trial court may properly exclude evidence of prior allegations of misconduct
       involving different officers if the prior allegation is factually dissimilar to the officer’s
       conduct in the pending case, and if the officer did not receive discipline from his department.
       See Coleman, 206 Ill. 2d at 279 (“Mere evidence of a civil suit against an officer charging
       some breach of duty unrelated to the defendant’s case is not admissible to impeach the
       officer.”); People v. Williams, 2011 IL App (1st) 093350, ¶ 47 (“Evidence of an unrelated
       lawsuit, *** where there is no evidence of a finding of guilt and no claims of any disciplinary
       action taken against the detectives, does not raise an inference of any bias or motive to testify
       falsely.”).
¶ 18        Having determined the standard the trial court was to employ in deciding whether to
       quash defendant’s subpoena, we find that the trial court applied the correct standard. In
       making its ruling following in camera inspection of the records, the court announced the
       standard it applied. The court stated that prior allegations of abuse or misconduct are
       admissible when they are not unduly remote in time from the occurrence before the court,
       they involve the same officer and similar allegations of misconduct, and when in both the
       prior allegations of misconduct as well as in the case before the court there is evidence of
       injury consistent with the allegations. While the last statement by the court was correct, we
       do note, however, that the absence of physical injury does not preclude evidence of prior acts
       of misconduct from being admissible. Patterson, 192 Ill. 2d at 116. We find no error because
       the trial court in this case specifically cited Patterson and reiterated that evidence of prior
       abuse is admissible when the prior allegations involve the same officer and similar methods
       and are close in time to the allegations in the case before the court. Thus, the trial court
       stated, “when the allegations are not similar or unduly remote, they won’t be allowed in.”
¶ 19        The trial court excluded complaints arising between 2000 and 2005 and reviewed
       allegations made between February 2006 and January 2009. We cannot say the court abused
       its discretion in selecting that time span. This incident occurred on September 19, 2008. Our
       supreme court has specifically “declined to find evidence of prior police brutality to be
       relevant when *** the allegation *** occurred three years before the case at bar.” Patterson,
       192 Ill. 2d at 115. Our review of the records reveals that the last complaint in 2005 was based
       on an incident that occurred on September 7, 2005, more than three years before the date of
       the incident in this case. The trial court did not abuse its discretion in excluding that
       complaint and all prior complaints.
¶ 20        Of the remaining allegations, the court found that four allegations were unfounded and
       five were not sustained. Mere allegations of misconduct, without evidence the officer was
       disciplined, are not admissible as impeachment (Nelson, 235 Ill. 2d at 421; Coleman, 206 Ill.
       2d at 279) and do not raise an inference of bias or motive to testify falsely (Williams, 2011
       IL App (1st) 093350, ¶ 47). Accordingly, we cannot find the trial court abused its discretion
       in excluding those records. The court did note that two minor allegations contained in one
       complaint were sustained, but the court found that situation is not similar to this case. The
       court later clarified that the allegations “were not physical abuse of any form.” Thus, the
       court did not abuse its discretion in excluding those complaints. Coleman, 206 Ill. 2d at 279.
¶ 21        We further find that, in reviewing the records, the trial court did not so narrowly construe

                                                 -6-
       the “similarity of allegations” factor to only search the records for other incidents involving
       shooting a dog. The court stated that all of the allegations in the records involve the same
       officer, “but they are not similar allegations of misconduct.” The court merely remarked that
       none involved shooting a dog. The court went on to say that “nothing that I found [was]
       similar enough that would justify turning over those files.” We find that the trial court
       applied the appropriate standard to exclude the records of allegations of prior misconduct.
¶ 22       We applied those same standards to our own review of the records. After conducting our
       own review of the materials the trial court reviewed, we find the trial court did not abuse its
       discretion in finding the files were not discoverable. Bean, 137 Ill. 2d at 102 (“We find not
       only that the review procedure used here was proper, but that the trial court did not err in its
       decision as to what information was relevant and properly should have been disclosed to
       defendant.”). With the single exception of two allegations in 2005, which are completely
       distinct from anything that happened in this case and are too remote to be admissible, none
       of the complaints against Lieutenant Evans resulted in any discipline. The police authorities
       found all of the claims against him either unfounded or not sustained by sufficient evidence.
       Moreover, our review of the nature of the complaints does not reveal a series of similar
       incidents spanning several years. Unlike this case, some of the records involve complaints
       by subjects who were already in custody and Lieutenant Evans was not the arresting officer.
       Moreover, not only are the complaints dissimilar to the events in this case, the complaints
       are largely all unique. Therefore, the trial court properly quashed defendant’s subpoena.
       Patterson, 192 Ill. 2d at 115.

¶ 23                                      CONCLUSION
¶ 24       We agree with the trial court that the complaints reflect the type of generalized
       allegations that are an inherent part of police work. For the foregoing reasons, we affirm the
       judgment of the trial court.

¶ 25      Affirmed.




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