                        Illinois Official Reports

                               Appellate Court



                    People v. Schlott, 2015 IL App (3d) 130725



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption            BRADLEY M. SCHLOTT, Defendant-Appellee.




District & No.     Third District
                   Docket No. 3-13-0725




Filed              April 15, 2015
Rehearing denied   June 3, 2015



Decision Under     Appeal from the Circuit Court of Will County, No. 09-CF-606; the
Review             Hon. Amy Bertani-Tomczak, Judge, presiding.




Judgment           Reversed.



Counsel on         James Glasgow, State’s Attorney, of Joliet (Gary F. Gnidovec, of
Appeal             State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                   People.

                   Chuck Bretz, of Chuck Bretz & Associates, P.C., and Cosmo J.
                   Tedone, of Law Offices of Tedone & Morton, both of Joliet, for
                   appellee.
     Panel                    JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                              Justice O’Brien concurred in the judgment and opinion.
                              Presiding Justice McDade dissented, with opinion.



                                                OPINION

¶1          Defendant, Bradley M. Schlott, faced charges for one count of attempted first degree
       murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)) and one count of aggravated domestic
       battery (720 ILCS 5/12-3.3 (West 2008)). The court granted defendant’s pretrial motion
       in limine seeking to exclude portions of defendant’s responses to questions posed by the 911
       operator. In addition, the trial court granted defendant’s request to exclude the State’s DNA
       evidence, which the State submitted for analysis by the crime lab within weeks of the
       scheduled jury trial but promptly disclosed to the defense as ongoing discovery. The State
       appeals the pretrial rulings. We reverse both rulings.

¶2                                            BACKGROUND
¶3         The State indicted defendant for attempted first degree murder (720 ILCS 5/8-4(a),
       9-1(a)(1) (West 2008)) and aggravated domestic battery (720 ILCS 5/12-3.3 (West 2008))
       arising out of an incident which occurred on March 12, 2009. The indictment alleged
       defendant struck or slashed Kimberly Hurschik about the neck with a knife on that date.
¶4         Defendant was arraigned on April 8, 2009. Although a written order does not appear in the
       record, the docket sheet indicates the trial court ordered discovery pursuant to Supreme Court
       Rules 412 and 413 (Ill. S. Ct. R. 412 (eff. Mar. 1, 2001); R. 413 (eff. July 1, 1982)). According
       to the record, the State was ordered to comply with that discovery schedule by April 22, 2009.
       Due to numerous pending procedural issues and requests for continuances by both sides, the
       jury trial was not scheduled to begin until 2013, nearly four years after the initial arraignment.
¶5         On July 27, 2011, defendant filed a pretrial motion to suppress a knife from evidence. In
       addition, defendant’s motion also sought the suppression of certain statements defendant
       provided to police officers identifying the same knife as the actual knife used to injure the
       victim. The court did not rule on defendant’s motion to suppress until June 8, 2012. The court
       granted defendant’s request to suppress his statements identifying the knife as the knife used to
       inflict the victim’s injuries. However, the court denied defendant’s request to prevent the State
       from introducing the knife itself as evidence based on the inevitable discovery rule.
¶6         One year later, on August 13, 2013, the court scheduled the jury trial to begin on
       September 19, 2013. Two weeks after the court set the jury trial date, defendant filed a pretrial
       motion in limine on August 30, 2013. This motion in limine sought to exclude portions of the
       tape recordings of two 911 calls initiated by defendant based on Crawford v. Washington, 541
       U.S. 36 (2004).
¶7         The State filed a response to defendant’s Crawford motion. In addition, the State also filed
       its own motion in limine seeking a ruling by the court allowing the State to introduce the
       transcripts of the recorded 911 calls initiated by defendant seeking help for the stabbing victim.
       The State’s motion in limine included attached transcripts of the 911 calls.


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¶8         On August 30, 2013, the same day that defendant filed his motion in limine, the prosecutor
       assigned to the case discovered that the knife had not been previously submitted to the crime
       lab for DNA analysis. An assistant State’s Attorney personally visited defense counsel on
       September 3 or 4 and informed defense counsel of the name of the crime lab technician
       conducting the analysis. On September 5 or 6, the State tendered the completed crime lab
       report to the defense before the hearing occurred on the pending cross-motions in limine.
¶9         The hearing on the cross-motions in limine concerning defendant’s 911 calls took place on
       September 10, 2013, in anticipation of the scheduled jury trial date of September 19, 2013. On
       September 12, 2013, the trial court ruled on the pending cross-motions in limine. The court
       granted, in part, and denied, in part, both motions. Specifically, the court ordered that the jury
       would not be allowed to consider the portion of the recording. The trial court reasoned that the
       911 operator’s questions went beyond the emergency purpose.
¶ 10       Those portions of the 911 recording redacted by the court are highlighted, for the reader’s
       convenience, below. The relevant transcript reads as follows:
               “Transcript of Joliet 9-1-1 tape
                                               March 12, 2009
                                           (Call placed by Male)
                                            RE: 09-0312005318
               00:00-1:10
                   DISPATCH: Joliet 9-1-1
                   (Male) CALLER: I need help. 1901 Prairie Ridge Drive. I need an ambulance.
               Help!
                   DISPATCH: What’s wrong though?
                   (Male) CALLER: I’ve got a girlfriend who’s hurt real bad. She might bleed to
               death. Hurry up.
                   DISPATCH: What’s going on?
                   (Male) CALLER: 1901 Prairie Ridge Drive …
                   DISPATCH: 1901 Prairie Ridge Drive. You’ve got to tell me what the problem is.
                   (Male) CALLER: She’s cut and bleeding!
                   DISPATCH: Cut what?
                   (Male) CALLER: Profusely!
                   DISPTACH: Where at?
                   (Male) CALLER: In her–right between her arm and her chest! Hurry up! I need
               help! I need help! I need help!
                   DISPATCH: Okay, where is she bleeding from? What happened?
                   (Male) CALLER: I’m telling you! She is cut profusely between her arm and her
               chest!
                   DISPATCH: Okay, how did it happen?
                   (Male) CALLER: It’s a long story. I need help!
                   DISPATCH: Okay, someone else is dispatching them, okay? I need you to tell me
               what happened.
                   (Male) CALLER: It’s not important. Just send someone.

                                                   -3-
                   DISPATCH: It is important, Sir! We’re going to be sending police and fire out
               there. You need to tell me what happened.
                   (Male) CALLER: We had a fight.
                   DISPATCH: Okay, and what happened that she’s cut between her arm and her
               chest now?
                   (Male) CALLER: She got cut.
                   DISPATCH: Did you cut her?
                   (Male) CALLER: I need help!
                   DISPATCH: What’s your name?
                   (Male) CALLER: (Hangs up–dial tone heard)” (Emphases added.)
¶ 11        On September 16, 2013, the State filed a motion requesting the trial court to reconsider the
       ruling regarding the 911 call. On that same day, defendant filed a motion to bar the State from
       introducing evidence concerning the DNA results as a discovery sanction. The defense
       asserted that any production of discovery 10 days prior to the start of trial was unreasonable
       and constituted a discovery violation.
¶ 12        The court conducted a combined hearing on the State’s motion to reconsider the court’s
       ruling concerning defendant’s 911 call together with the hearing on defendant’s separate
       motion for discovery sanctions. During the combined hearing, the State explained the reason
       the State did not submit the knife to the crime lab for analysis before August of 2013.
       According to the prosecutor, after the court’s June 8, 2012, decision to suppress defendant’s
       statement to police about the knife, the State determined the knife should be submitted to the
       crime lab to determine if the victim’s or defendant’s blood was present on the knife in order to
       link the knife to the alleged assault. However, the State explained that the need to have the
       knife tested had been “lost in transition” between the two prosecutors working on the case.
¶ 13        On September 17, 2013, the court granted defendant’s motion for a discovery sanction and
       barred the State from introducing the DNA test results from evidence. In addition, on the same
       date, the court denied the State’s request to reconsider the court’s ruling striking defendant’s
       responses to the 911 operator.
¶ 14        The State filed a notice of appeal and a certificate of substantial impairment to proceed to
       trial. In this interlocutory appeal, the State challenges: (1) the court’s order granting
       defendant’s motion to bar the DNA results from evidence as a sanction for the State’s
       discovery violation; and (2) the court’s order suppressing certain portions of the 911 tape under
       Crawford.

¶ 15                                            ANALYSIS
¶ 16                                      I. Discovery Sanctions
¶ 17       The State argues that the exclusion of the DNA results was, under the circumstances, an
       excessive sanction for the purported untimely discovery. Defendant claims that the State’s
       tendering of the lab report on the DNA found on the knife in such close proximity to trial
       constituted a discovery violation. Defendant maintains that the trial court’s sanction for this
       violation, excluding the evidence, did not constitute an abuse of discretion.
¶ 18       As a threshold matter, we first examine whether a discovery violation occurred in the case
       at bar. We note that four years elapsed from the date of arraignment and the date of trial. We


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       surmise both parties conducted their own ongoing reexamination of the evidence as the 2013
       trial date grew closer and in light of the court’s rulings on the 2013 pretrial motions.
¶ 19        In this case, the record does not contain a formal order dictating deadlines for the initial
       production of discovery or the ongoing production of additional material and information
       gathered by the parties during the years this matter was pending trial. In the absence of a more
       specific discovery order, the discovery requirements applicable to the case at bar are governed
       by the mandates of Illinois Supreme Court Rule 415(b) (eff. Oct. 1, 1971). Rule 415 provides:
       “If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers
       additional material or information which is subject to disclosure, he shall promptly notify the
       other party or his counsel of the existence of such additional material ***.” Id.
¶ 20        Next, we examine the chronology of events to determine if the State promptly disclosed the
       relevant test results to the defense as required by Rule 415. The record shows that on August
       30, 2013, the defendant filed his motion in limine seeking to exclude portions of the 911 tape.
       On that date, August 30, 2013, the prosecutor assigned to the case discovered a previously
       assigned prosecutor had not made sure the knife was submitted to the crime lab for DNA
       analysis. Due to this oversight, on September 3 or 4, a prosecutor personally advised defense
       counsel that further discovery would be forthcoming and provided defense counsel with the
       name of the crime lab technician conducting the expedited lab analysis on the knife. On
       September 5 or 6, the State tendered the completed crime lab report to the defense. Trial
       strategies were still evolving at this time for both parties as the trial court did not conduct a
       hearing on the pending motions in limine concerning the 911 call until September 12, 2013,
       and finalized that ruling by denying the State’s motion to reconsider just two days before trial
       on September 17, 2013.
¶ 21        On September 17, 2013, the date the hearing on the defense’s request for sanctions
       occurred, the State provided the trial court with an explanation showing its good-faith reason
       for failing to conduct the DNA testing before 2013. Although not required to so do, the State
       also promptly notified defense counsel of the anticipated production of additional information
       once the physical analysis of the knife was completed. Thereafter, as required by Supreme
       Court Rule 415(b), the State immediately notified the defense of the lab test results upon
       receipt by the State.
¶ 22        Based upon this record, we conclude the State’s ongoing disclosure of additional newly
       discovered information was timely and did not constitute a discovery violation of Rule 415 at
       all. Therefore, we conclude the court abused its discretion by excluding the test results since a
       discovery violation did not occur.
¶ 23        In the interest of a complete analysis, assuming, arguendo, that the late submission of
       previously discovered evidence constituted a discovery violation, we next consider whether
       the sanction imposed by the court constituted an abuse of discretion. The imposition of
       sanctions for discovery violations is governed by Illinois Supreme Court Rule 415(g)(i) (eff.
       Oct. 1, 1971). The rule provides that when a party violates a discovery rule or order, “the court
       may order such party to permit the discovery of material and information not previously
       disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems
       just under the circumstances.” Id.
¶ 24        We review a trial court’s decision as to the appropriate sanction for a discovery violation
       for abuse of discretion. People v. Ramsey, 239 Ill. 2d 342 (2010). An abuse of discretion exists


                                                   -5-
       where the trial court’s decision is arbitrary, fanciful, or unreasonable, such that no reasonable
       person would take the view adopted by the trial court. Id.
¶ 25       The case law provides that “the sanction of excluding certain testimony or evidence is
       disfavored because it does not contribute to the goal of truth-seeking [citation] and is
       appropriate in only the most extreme situations [citations].” People v. Scott, 339 Ill. App. 3d
       565, 572-73 (2003). Such a severe sanction is appropriate only where it is necessary to cure
       any prejudice caused by the discovery violation, or where the offending party’s violation is
       determined to be willful and blatant. Ramsey, 239 Ill. 2d 342; People v. Damico, 309 Ill. App.
       3d 203 (1999).
¶ 26       The burden of showing surprise or prejudice from a discovery violation rests on the
       defendant. People v. Heard, 187 Ill. 2d 36, 63 (1999). In his motion for sanctions, defendant
       did not claim unfair prejudice or claim the undue prejudice could only be remedied by
       exclusion. Moreover, the defense motion did not allege the State’s conduct was willful or
       deliberately designed to circumvent the duty for ongoing prompt production of discovery.
       Finally, the State provided a plausible, good-faith reason for its oversight, and the trial court
       did not make a finding that the State’s conduct was either willful or blatant.
¶ 27       Thus, even if the trial court properly decided the State’s conduct violated the discovery
       guideline, the trial court abused its discretion by excluding the test results in the absence of an
       allegation or showing of unfair prejudice to the State.

¶ 28                                      II. Crawford Violation
¶ 29       The State also contends the trial court improperly allowed defendant’s motion in limine
       based on Crawford, 541 U.S. 36, by prohibiting the State from introducing evidence of
       defendant’s nonhearsay responses to a 911 operator’s questions. The State argues that the
       statements ordered redacted were nonhearsay and thus not subject to a Crawford analysis.
¶ 30       Initially, we note that defendant’s one-paragraph response does not address the State’s
       argument. Instead, defendant asks this court to affirm the trial court’s decision on the grounds
       that the redacted portion of the 911 tape is more prejudicial than probative, “or for any other
       grounds supported by the record.” Defendant does not cite to any authority or provide
       argument in support of this request.
¶ 31       The case law provides that “[a] reviewing court *** is not merely a repository into which
       an appellant may ‘[foist] the burden of argument and research,’ nor is it the obligation of this
       court to act as an advocate or seek error in the record. [Citations.] Supreme Court Rule 341
       requires that the appellant clearly set out the issues raised and the legal support therefor with
       relevant authority. [Citation.] The consequence of not complying with Supreme Court Rule
       341 is waiver of those issues on appeal.” U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2009)
       (quoting Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993)). We conclude these arguments
       advanced by the defense have been waived.
¶ 32       Next, we consider the merits of the State’s argument that the trial court incorrectly applied
       the rationale of Crawford by granting defendant’s motion in limine concerning the contents of
       the 911 call. As a general matter, a reviewing court examines a trial court’s decision on a
       motion in limine for an abuse of discretion. People v. Armbrust, 2011 IL App (2d) 100955.
       However, where review requires the court to address a question of law, our review is de novo.
       People v. Caballero, 206 Ill. 2d 65 (2002).


                                                    -6-
¶ 33       In Crawford, the Supreme Court held that out-of-court statements of a testimonial nature
       are barred under the confrontation clause unless the witness is unavailable and the defendant
       has had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. 36. While the
       Crawford court discussed the differences between testimonial hearsay and nontestimonial
       hearsay, it was at all times concerned with hearsay. Id. at 59 n.9 (the confrontation clause
       “does not bar the use of testimonial statements for purposes other than establishing the truth of
       the matter asserted”). Indeed, our supreme court has held that when addressing a potential
       Crawford violation, the threshold question must be whether or not the statements in question
       are hearsay. People v. Leach, 2012 IL 111534. Admissible nonhearsay does not implicate the
       confrontation clause. People v. Peoples, 377 Ill. App. 3d 978 (2007).
¶ 34       Hearsay in Illinois is governed by article VIII of the Illinois Rules of Evidence. Under
       article VIII, a statement is not hearsay if “[t]he statement is offered against a party and is ***
       the party’s own statement, in either an individual or a representative capacity.” Ill. R. Evid.
       801(d)(1)(B)(2) (eff. Jan. 1, 2011) (“Admission by Party-Opponent”). Illinois decisions
       predating the 2011 codification of the rules of evidence similarly held that admissions by a
       defendant are not hearsay. See, e.g., People v. Aguilar, 265 Ill. App. 3d 105, 110 (1994) (“The
       hearsay rule is not a basis for objection when the defendant’s own statements are offered
       against the defendant; in such a case, the defendant’s statements are termed ‘admissions.’ ”).
¶ 35       The statements made by defendant and recorded on the 911 tape are admissions, and are
       plainly considered nonhearsay under Illinois law. As such, defendant’s statements do not
       implicate the confrontation clause or Crawford. The trial court’s ruling that portions of the 911
       tape in question should be redacted pursuant to Crawford was error, and we reverse.

¶ 36                                       CONCLUSION
¶ 37      The judgments of the circuit court of Will County are reversed.

¶ 38        Reversed.
¶ 39        PRESIDING JUSTICE McDADE, dissenting.
¶ 40        The majority has reversed the trial court’s exclusion of the State’s DNA evidence as a
       discovery sanction, finding that there was no discovery violation at all. Because I cannot agree
       with that conclusion, I respectfully dissent.
¶ 41        The crime in this case occurred on March 12, 2009, and the knife was taken into evidence
       at the crime scene that same day.
¶ 42        The court ordered both the State and the defense to make discovery disclosures required by
       Supreme Court Rules 412 and 413 by April 22, 2009. Rule 412 addresses disclosures to be
       made by the State and Rule 413 sets out the discovery to be produced by the defendant. Rule
       412(a)(iv) directs the State to disclose:
                   “(iv) any reports or statements of experts, made in connection with the particular
               case, including results of physical or mental examinations and of scientific tests,
               experiments, or comparisons, and a statement of qualifications of the expert.” Ill. S. Ct.
               R. 412(a)(iv) (eff. Mar. 1, 2001).
       This subsection would appear to encompass the results of the DNA testing at issue. Unlike
       some other of Rule 412’s subsections, subsection (a)(iv) does not limit the requisite disclosures
       to those of persons or evidence the State intends to use at trial, presumably because the

                                                   -7-
       evidence to be tested is in the sole possession and control of the State. The State, according to
       my reading of the rule, was required to secure DNA testing and disclose the results of that
       testing to the defendant by the court-ordered deadline of April 22, 2009, whether or not it
       intended to use the evidence at trial.
¶ 43        The State has acknowledged the tardiness of its compliance and has asserted three minor
       variations of its justification. The first, as set out in the majority opinion, was that on August
       30, 2013, the prosecutor assigned to the case “discovered that the knife had not been previously
       submitted to the crime lab for DNA analysis.” Supra ¶ 8.
¶ 44        Second, the prosecutor asserted at a September 2013 hearing that, after the court decided
       on June 8, 2012,1 to suppress defendant’s statement to police about the knife, the State decided
       to submit the knife to the crime lab to determine if there was blood from the defendant or the
       victim on the knife that could link it to the crime. However, the need for testing was “ ‘lost in
       transition’ ” between the two prosecutors assigned to the case. Supra ¶ 12.
¶ 45        Third, in its initial appellant’s brief, the State asserts, with citations to the report of
       proceedings, that:
                “[T]he People acknowledged the time lapse but pointed out that this lapse was due to
                the prior order [of June 8, 2012] suppressing defendant’s statement identifying the
                knife and the realization that nobody had asked the victim whether she could identify
                the knife. (R. 811) Also, with respect to the question of timing, the prosecutor
                responded that he sent the knife to the crime lab on August 30, 2013. (R. 811)”2
¶ 46        The State did not produce the DNA testing results by April 22, 2009. Nor, by its own
       evidence, did it intend to produce such results by the court-ordered disclosure date. When
       prosecutors finally realized they could not prove their case without DNA test results, they still
       waited more than an additional year (a total of four-and-one-quarter after the shooting) to even
       submit the knife for testing.
¶ 47        The majority finds no problem with this timing, opining that it is allowable under Rule
       415–a rule it finds applicable because the record does not contain a “formal order dictating
       deadlines for the initial production of discovery or the ongoing production of additional
       material and information gathered by the parties during the years this matter was pending
       trial.” Supra ¶ 19. The portion of Rule 415 relied upon by the majority states:
                “If, subsequent to compliance with these rules or orders pursuant thereto, a party
                discovers additional material or information which is subject to disclosure, he shall
                promptly notify the other party or his counsel of the existence of such additional
                material ***.” Ill. S. Ct. R. 415(b) (eff. Oct. 1, 1971).
¶ 48        I do not believe Rule 415 is applicable in this case. The State did not discover additional
       material or information that was subject to disclosure subsequent to compliance with prior
       discovery requirements. It had the knife from day one and presumably knew it needed to be
       tested for DNA and the results disclosed to the defendant. It was clearly not later-discovered
       evidence creating a duty to supplement.


           1
           At this time, the knife had been in the possession and control of the State for more than three years.
           2
           The State thus waited an additional one year and nearly three months (4¼ years after disclosure
       was required to be made) to even submit the knife for analysis.

                                                       -8-
¶ 49       It was not until July 27, 2011–more than two years after the April 22, 2009, discovery
       deadline–that the defendant moved to suppress the knife and certain statements he made.
       During that two-year period the knife and the defendant’s possible possession and use of it
       were major elements of the State’s case against the defendant. The State acknowledges that it
       had no intention of having the knife tested for DNA until the court ruled favorably for
       defendant on June 8, 2012. Despite Rule 412(a)(iv), the State chose not to have the knife tested
       for DNA for more than four years and now argues that not having done so is somehow a
       sufficient good-faith reason that it should not be subject to sanctions for its dereliction.
¶ 50       As noted by the majority, our standard for reviewing a trial court’s sanction for a discovery
       violation is abuse of discretion. People v. Ramsey, 239 Ill. 2d 342 (2010). Under that standard,
       we reverse a trial court’s decision only if it is so arbitrary, fanciful, or unreasonable that no
       reasonable person would take the same position. Id.
                   “ ‘Abuse of discretion’ is the most deferential standard of review–next to no review
               at all–and is therefore traditionally reserved for decisions made by a trial judge in
               overseeing his or her courtroom or in maintaining the progress of a trial. People v.
               Coleman, 183 Ill. 2d 366, 387 (1998). For example, a trial judge’s decision whether to
               allow or exclude evidence is reviewed for an abuse of discretion [citation], as is his or
               her decision to limit discovery [citation], [or to] impose a sanction for a discovery
               violation (Sullivan v. Edward Hospital, 209 Ill. 2d 100, 110-11 (2004)) ***.”
               (Emphases added.) In re D.T., 212 Ill. 2d 347, 356-57 (2004).
¶ 51       In the instant case, the sanction imposed by the trial court is expressly included in Rule
       415(g)’s grant of discretion, was imposed after a failure to disclose the information for more
       than four years, and was partially explained by the court’s complaint that this is a recurring
       violation by the State–a complaint that at least suggests a belief by the court that the failure was
       willful. Given the clear violation of the rule and attendant court order establishing a disclosure
       deadline, the court’s apparent intent to curb recurrent discovery violations, the court’s express
       authority to impose the challenged sanction, and our exceedingly deferential standard of
       review, I cannot find an abuse of discretion and agree with the reversal of the trial court’s order
       excluding the State’s DNA evidence, and I respectfully dissent from that portion of the
       majority’s opinion.
¶ 52       I do agree with the majority and the State that the defendant has waived his Crawford issue
       by his failure to make a reasoned and reasonably buttressed argument in support of his
       challenge. I would, however, observe, without discussion of the issue, that the excluded
       portion of the statements reviewed in limine includes questions posed by a second person–not
       defendant–that are integral to the significance of the statements, that may not be subject to a
       hearsay exception, and that could conceivably be viewed as testimonial in nature.
¶ 53       For the foregoing reasons, I respectfully dissent.




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