                       Illinois Official Reports

                              Appellate Court



                   People v. Moises, 2015 IL App (3d) 140577



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


District & No.    Third District
                  Docket No. 3-14-0577


Filed             August 24, 2015


Decision Under    Appeal from the Circuit Court of Will County, Nos. 14-DT-364,
Review            14-TR-22164 through 14-TR-22166; the Hon. Carmen Goodman,
                  Judge, presiding.



Judgment          Reversed and remanded.




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.

                  Ryan Kosztya, of Law Offices of Ryan Kosztya, of Joliet, for appellee.



Panel             JUSTICE SCHMIDT delivered the judgment of the court, with
                  opinion.
                  Justice Lytton specially concurred, with opinion.
                  Justice Holdridge dissented, with opinion.
                                               OPINION


¶1       The State charged defendant, Jaime Moises, with misdemeanor driving under the influence
     of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2012)) and several traffic offenses
     following a traffic stop. The State turned over a squad car video recording of defendant’s
     traffic stop, which did not capture defendant’s field sobriety tests because the arresting officer
     directed defendant to perform the tests in an area outside the view of the camera. Defendant
     filed a motion for discovery sanctions, arguing that the officer directing him to perform the
     tests off camera had the same effect as destroying or losing the videotape of the tests. The trial
     court granted defendant’s motion, and the State appeals. We reverse and remand for further
     proceedings.

¶2                                             FACTS
¶3       The State charged defendant by traffic citation and complaint with misdemeanor DUI
     (625 ILCS 5/11-501(a)(2) (West 2012)), a headlight violation (625 ILCS 5/12-201(b) (West
     2012)), improper lane usage (625 ILCS 5/11-709(a) (West 2012)), and operating an uninsured
     motor vehicle (625 ILCS 5/3-707 (West 2012)).
¶4       Defendant filed a motion for sanctions. The motion alleged that on the date of his arrest,
     defendant was driving his vehicle. Deputy M. Shaughnessy, who was driving a police squad
     car with an in-car camera system, stopped defendant’s vehicle. In so doing, Shaughnessy
     activated the squad car camera while following defendant, and recorded the traffic stop. The
     video recording showed Shaughnessy directing defendant to an off-camera area in front of
     defendant’s vehicle to perform field sobriety tests. While the squad car camera did not capture
     a video recording of the field sobriety tests, it does contain an audio recording of the
     conversation that occurred during the field sobriety tests.
¶5       The motion for sanctions alleged that Shaughnessy’s action in directing defendant to
     perform the field sobriety tests in an area outside the view of the squad car camera had the
     same effect as if the police destroyed or lost the videotape of the field sobriety tests.
     Consequently, defendant argued, testimony from Shaughnessy regarding anything that would
     have been captured on the videotape, had the field sobriety tests been conducted within the
     view of the squad car camera, should be barred pursuant to the holding in People v. Kladis,
     403 Ill. App. 3d 99 (2010).1 The motion for sanctions also alleged that the conversations
     captured on the video recording during the field sobriety tests constituted eavesdropping in
     violation of sections 14-2 and 14-5 of the Criminal Code of 2012 (720 ILCS 5/14-2, 14-5
     (West 2012)).
¶6       After hearing arguments, the trial court granted defendant’s motion for sanctions and
     barred Shaughnessy and all other assisting deputies from testifying to or about any part of the


         1
          We note that although defendant’s motion cites the appellate court’s decision in Kladis, 403 Ill.
     App. 3d 99, that decision was affirmed by our supreme court in People v. Kladis, 2011 IL 110920. In
     our analysis, we refer to the supreme court’s decision.

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       traffic stop where Shaughnessy took defendant off camera, including, but not limited to,
       defendant’s performance of the field sobriety tests. The court reasoned:
               “[W]hen you look at Kladis and you look at all the cases preceding Kladis, here we
               have a situation where the video was not destroyed, but the video was never really
               made. A video is on, but it does not capture the purposes so the Court can make the
               appropriate decisions at trial or any place else.
                   So it rises almost to the level of they had it, but what’s contained on it, we’re just
               supposed to *** take a witness’s word for it.”
¶7         The trial court expressly declined to sustain defendant’s motion on the eavesdropping
       grounds.

¶8                                               ANALYSIS
¶9         On appeal, the State argues that the trial court erred in granting defendant’s motion for
       sanctions and barring Shaughnessy’s testimony regarding the field sobriety tests. Because no
       discovery violation occurred in this case, we reverse the trial court’s ruling and remand for
       further proceedings.
¶ 10       A trial court’s decision to impose sanctions for a discovery violation is reviewed for abuse
       of discretion. People v. Kladis, 2011 IL 110920, ¶ 23. “Generally, a court abuses its discretion
       when its decision is fanciful, arbitrary, or unreasonable to the degree that no reasonable person
       would agree with it.” People v. Ortega, 209 Ill. 2d 354, 359 (2004).
¶ 11       Discovery in misdemeanor cases is governed by case law and statutory provisions.
       People v. Schmidt, 56 Ill. 2d 572, 575 (1974). In Schmidt, the court enumerated the types of
       evidence that are discoverable in misdemeanor cases, including confessions of the defendant,
       evidence negating the defendant’s guilt, the results of breathalyzer tests, and police reports for
       the purposes of impeachment of an officer. Id. In Kladis, 2011 IL 110920, ¶ 26, the court
       clarified that the list enumerated in Schmidt was not a “rigid list” that should “remain static.”
       The Kladis court held that video recordings of traffic stops are discoverable in misdemeanor
       DUI cases under the holding of Schmidt, 56 Ill. 2d at 575. Kladis, 2011 IL 110920, ¶ 29.
       Contrary to the special concurrence, Kladis is not relevant here. No matter how you choose to
       characterize what happened here, it simply was not a “discovery violation.” Kladis does not
       hold that the police must videotape everything they do. Even if that were the case, there is no
       discovery violation here. Defendant asked for the videotape; the State produced it. The special
       concurrence suggests that the reason the officer conducted the field sobriety test other than
       directly in front of the camera is somehow relevant to the issue of a discovery violation. This
       case is before us on an order granting discovery sanctions. I fail to understand how this police
       officer could commit a discovery violation even before arresting defendant. With all due
       respect, the suggestion outlined in the special concurrence is illogical. The special concurrence
       seems to confuse a motion for discovery sanctions with a motion to suppress. The dissent, of
       course, simply rewrites the statute adding provisions that the General Assembly did not. It adds
       the requirement that field sobriety tests be videotaped and that the failure to do so renders
       inadmissible any evidence regarding the test.
¶ 12       Recently, in People v. Olsen, 2015 IL App (2d) 140267, the Second District dealt with an
       identical issue. The only difference was in Olsen, the police officer testified at the hearing that
       he performed the test in front of defendant’s car rather than in front of his patrol car for safety


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       reasons. Id. ¶ 5. The trial court granted defendant’s motion for sanctions and the Second
       District reversed. Id. Citing to People v. Borys, 2013 IL App (1st) 111629, the Olsen court
       concluded that section 30 of the State Police Act (20 ILCS 2610/0.01 et seq. (West 2012)) is
       directory rather than mandatory, as it does not dictate a particular consequence for a failure to
       comply with its requirements. Olsen, 2015 IL App (2d) 140267, ¶ 17. The Olsen court further
       agreed that there was no discovery violation because defendant asked for the videotape and the
       State produced it. Id. ¶¶ 18-20. Quoting People v. Strobel, 2014 IL App (1st) 130300, ¶ 11, the
       Olsen court held that “[t]here 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.” (Internal quotation marks omitted.) Olsen, 2015 IL App (2d) 140267,
       ¶ 21. Likewise, the Olsen court questioned the relevance of evidence regarding whether the
       officer could have performed the field sobriety test in front of the camera. Id. That is, since the
       police had no duty to film the field sobriety test, the reason for not doing so is irrelevant to even
       a motion to suppress evidence (which we do not have here), let alone a motion for discovery
       sanctions.
¶ 13       Here, no discovery violation occurred because the State neither destroyed nor withheld the
       squad car video from defendant, but rather turned it over to defendant. Contrary to defendant’s
       assertions, Shaughnessy’s decision to conduct defendant’s field sobriety tests, outside the view
       of the squad car camera, was not tantamount to destroying a video recording of the field
       sobriety tests. Police officers are not required by law to conduct field sobriety tests within the
       view of a squad car camera. I emphasize that the safety of both the officer and the defendant
       may often require that field sobriety tests be conducted at a location outside the view of a squad
       car camera. Standing between two cars on the side of a highway is not the safest place to be.
       Stopped police cars are often struck, even with emergency lights flashing. There is simply
       nothing sinister about conducting a field sobriety test somewhere other than immediately in
       front of a squad car parked on the shoulder of a roadway.
¶ 14       I reject the trial court’s and defendant’s reliance on Kladis, 2011 IL 110920. In Kladis, the
       court held that the State committed a discovery violation when it failed to take the appropriate
       steps to preserve a squad car video recording of the defendant’s traffic stop after the defendant
       had filed a notice to produce the videotape under Illinois Supreme Court Rule 237 (eff. July 1,
       2005). Kladis, 2011 IL 110920, ¶¶ 38-39. As a result, police department personnel destroyed
       the video pursuant to departmental policy. Id. Here, unlike in Kladis, the State did not allow a
       discoverable piece of evidence to be destroyed after defendant requested it. Rather, the State
       turned over the squad car video recording of the traffic stop to defendant.
¶ 15       This holding is consistent with other decisions which have found that “Kladis does not
       stand as authority for imposing a sanction against the prosecution where the requested
       discovery material never existed in the first instance.” People v. Strobel, 2014 IL App (1st)
       130300, ¶ 11 (holding that no discovery violation supporting the imposition of sanctions
       occurred where the squad car video turned over to defendant contained no audio because the
       police officer forgot to activate the audio device in his squad car at the time of the traffic stop).
       See also People v. Borys, 2013 IL App (1st) 111629, ¶ 28 (the holding in Kladis did not
       support barring the police officer’s testimony regarding the defendant’s traffic stop where no
       video recording of the stop was created because the officer’s squad car was not equipped with
       video equipment). In the instant case, like in Borys and Strobel, the State did not allow an



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       existing, discoverable piece of evidence to be destroyed. Rather, the evidence desired by
       defendant never existed in the first place.
¶ 16       Because no discovery violation occurred in this case, the trial court erred in sanctioning the
       State by barring testimony about defendant’s field sobriety tests.

¶ 17                                         CONCLUSION
¶ 18       The judgment of the circuit court of Will County is reversed and the cause is remanded for
       further proceedings.

¶ 19      Reversed and remanded.

¶ 20       JUSTICE LYTTON, specially concurring.
¶ 21       I agree that this cause should be reversed and remanded but for substantially different
       reasons.
¶ 22       Justice Schmidt conjectures about why the field tests were given outside the view of the
       video camera. It speculates that it was convenient for safety reasons because accidents often
       occur to police cars on the side of the road, and, presumably, would squish the officer and
       defendant between the two cars as opposed to flattening them when the cars roll over them.
¶ 23       Several times during the hearing on the motion, the prosecutor lamented that the reasons
       for field testing outside the camera view were unknown. His worries were justified. We do not
       know the rationale, if any, for the location of the field test. We do not know whether the
       reasoning is sufficient to overcome the legislative intent requiring recording equipment on
       police cars so “both video and audio must be captured.” Kladis, 2011 IL 110920, ¶ 31 (citing
       20 ILCS 2610/30(b) (West 2008)).
¶ 24       The majority relies on People v. Olsen, 2015 IL App (2d) 140267. However, in Olsen, a
       hearing was held in which the officer testified as to the reasons he performed the test in front of
       the defendant’s car. Apparently, the defendant suggested no other reasons and the court
       accepted the officer’s explanation. In this case, we have no evidence as to why the officer
       conducted the test in front of the defendant’s car, and, thus, a remand is appropriate.
¶ 25       On remand, the trial court should hold a hearing to consider whether any reasons proffered
       for conducting the field tests outside of the camera view are sufficient to deny the motion in
       light of the principles elucidated in Kladis, including assisting “in the truth-seeking process by
       providing objective evidence of what occurred between the law enforcement officer and the
       citizen.” Kladis, 2011 IL 110920, ¶ 34.

¶ 26       JUSTICE HOLDRIDGE, dissenting.
¶ 27       I dissent. Section 30(e) of the State Police Act (Act) provides that “[a]ny enforcement stop
       resulting from a suspected violation of the *** Code shall be video and audio recorded.”
       (Emphasis added.) 20 ILCS 2610/30(e) (West 2012). Section 30(f) of the Act states that
       recordings made on in-car video camera recording medium “shall be retained” by the
       Department of the State Police for a storage period of at least 90 days, and “[u]nder no
       circumstances shall any recording made on in-car video camera recording medium be altered
       or erased prior to the expiration of the designated storage period.” 20 ILCS 2610/30(f) (West


                                                    -5-
       2012). By their plain terms, these statutory provisions require State police to make both an
       audio and a video recording of any traffic stop resulting from a suspected violation of the Code
       (like the traffic stop in this case), and to preserve such recordings for at least 90 days.
¶ 28        Following People v. Olsen, 2015 IL App (2d) 140267, ¶ 17, and People v. Borys, 2013 IL
       App (1st) 111629, ¶ 25, Justice Schmidt concludes that these statutory provisions are
       “directory rather than mandatory” because they do not “dictate a particular consequence for a
       failure to comply with [their] requirements.” Supra ¶ 12. I disagree. Although we presume that
       statutory language issuing a procedural command to a government official is “directory” (i.e.,
       not cause for reversal if the government official fails to fulfill the command), that presumption
       is overcome “when the right the provision is designed to protect would generally be injured
       under a directory reading.” People v. Delvillar, 235 Ill. 2d 507, 517 (2009). The statute at issue
       here protects citizens by requiring audio-visual recordings of traffic stops which could serve as
       exculpatory evidence in subsequent prosecutions against them for violations of the Code. See
       Kladis, 2011 IL 110920, ¶ 34; see also id. ¶¶ 33-34 (“the General Assembly intended that the
       routine recording of traffic stops by squad car cameras would be of benefit to both citizens and
       law enforcement agencies by providing an objective record of what occurred during the
       encounter. *** These enactments express the clear legislative intent that the purpose of
       recording traffic stops and preserving these recordings for later production is to assist in the
       truth-seeking process by providing objective evidence of what occurred between the law
       enforcement officer and the citizen.”). These purposes are thwarted when a police officer fails
       to make such a recording.
¶ 29        Thus, absent a ruling from our supreme court interpreting the statute’s requirements as
       directory rather than mandatory, I believe we should interpret the statute to mean what it says.
       I find Olsen and Borys unpersuasive and I would decline to follow those cases.
¶ 30        Moreover, although I agree with Justice Schmidt that there is a distinction between
       destroying an existing recording and failing to make a recording in the first instance, I do not
       believe that this distinction should be dispositive of the matter before us. The failure to create
       an objective audio-visual record of the encounter between the police officer and the driver has
       the same practical effect as the failure to preserve such a recording; the statute’s purpose is
       frustrated equally in either event. Thus, in my view, the trial court did not abuse its discretion
       in awarding discovery sanctions based upon Officer Shaughnessy’s failure to videotape the
       defendant’s field sobriety test. I agree with Justice Lytton that it is speculative to assume that
       the officer’s decision was motivated by safety concerns. Thus, in my view, the trial court’s
       imposition of sanctions in this case was not “fanciful, arbitrary, or unreasonable to the degree
       that no reasonable person would agree with it.” (Internal quotation marks omitted.)
       Kladis, 2011 IL 110920, ¶ 23. I would therefore affirm.




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