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                              Appellate Court                             Date: 2018.11.01
                                                                          14:02:34 -05'00'




                   People v. Pablo, 2018 IL App (3d) 150892



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



District & No.    Third District
                  Docket No. 3-15-0892



Filed             June 29, 2018



Decision Under    Appeal from the Circuit Court of Will County, No. 13-CM-3031; the
Review            Hon. Daniel L. Kennedy, Judge, presiding.



Judgment          Vacated and remanded.


Counsel on        James E. Chadd, Patricia Mysza, and Sharon Goott Nissim, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
                  J. Robinson, and Thomas D. Arado, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             PRESIDING JUSTICE CARTER delivered the judgment of the court,
                  with opinion.
                  Justice O’Brien concurred in the judgment and opinion.
                  Justice Wright dissented, with opinion.
                                               OPINION

¶1       Defendant, Frederico Pablo, was found guilty of resisting a peace officer and sentenced to
     a 12-month term of conditional discharge. On appeal, he raises numerous contentions of error,
     including that the court erred in allowing the State to unilaterally withdraw from a stipulation
     on the day of trial. We vacate defendant’s conviction and remand for further proceedings.

¶2                                               FACTS
¶3        The State charged defendant with the Class A misdemeanor offense of resisting a peace
     officer (720 ILCS 5/31-1 (West 2012)). Defendant was initially found guilty following a bench
     trial; however, the circuit court granted his motion for a new trial after finding that he had
     never executed a valid jury waiver.
¶4        On September 22, 2015, defendant announced he was ready for trial. The State announced
     it was ready but noted that one of the officers it intended to call would be unavailable the next
     day. The State further explained that it had a civilian witness present that day, but the
     prosecutor expressed that he was disinclined to seek a continuance where a civilian witness
     was involved. The court rejected the State’s suggestion that a jury be selected and then held
     until the officer was available. Instead, the court suggested the parties work toward a
     stipulation.
¶5        On the morning of November 2, 2015, the court asked the parties if they had reached a
     stipulation. Discussion on that topic ensued throughout the morning session. That afternoon,
     the court read the stipulation into the record:
              “Okay. This is the stipulation of the parties. The parties hereby stipulate that if Danish
              H. Ali were called to testify, he would testify that his vehicle was struck by another
              vehicle with Illinois registration 5403474, and he gave the Bolingbrook Police
              Department a description of the driver of the fleeing vehicle as a male Hispanic and that
              he had a mustache and he arrived at 246 Caroline Street, Bolingbrook. Officer Jon
              [Costion] approached Frederico Pablo, was handcuffed and made the statement, ‘that’s
              him, but he shaved his mustache off[.]’ [S]igned by all parties.”
     The court also entered a written order referencing the stipulation. The order clarified that the
     defense objected to the admission of Ali’s statement, “that’s him, but he shaved his mustache,”
     but stipulated to the fact that he would nevertheless testify to that.
¶6        The State noted that a possibility remained that Ali would be available to testify in person,
     in which case the stipulation would be unnecessary. Defense counsel interjected, arguing that
     the stipulation included “testimony from Mr. Ali that we wanted in regardless of whether he is
     here to testify.” The court responded: “Well, if he is not here, this is a stipulation signed by all
     parties.” The court concluded: “If he is here, stipulation goes in the garbage.” Defense counsel
     noted that, if Ali was present and the State did not call him, the defense would. The matter
     proceeded immediately from that point to jury selection.
¶7        The following morning, November 3, 2015, the State moved to bar the defense from
     introducing any evidence that the police officers investigating the car accident had arrested the
     wrong person, arguing that the lawfulness of the arrest was not relevant to a resisting charge.
     The court pointed out that Ali’s stipulated testimony, which concerned only the car accident
     and Ali’s identification of defendant as the driver, opened the door to allow defendant to

                                                  -2-
       pursue that topic. The court stated: “[Y]ou entered into a stipulation [in which] another person
       identifies the defendant as the one who committed the fleeing and the eluding. That brings into
       issue his credibility.”
¶8          The State responded by stating that it would withdraw the stipulation “and not talk about
       [Ali] at all.” The court allowed the State to withdraw the stipulation, telling the State, “You got
       [sic] the perfect right to withdraw the stipulation.” Defense counsel objected vociferously,
       taking exception to the State’s waiting until the jury had been impaneled to withdraw from the
       stipulation. Further, counsel explained the importance of the stipulation, or Ali’s personal
       testimony, to defendant’s case:
                “[O]ur entire theory of the case[ ] is that the officers are lying about [defendant]
                resisting at all.
                    ***
                    We are also going to argue that [defendant] was injured in the process. And the
                officers knew that. And after injuring an innocent man for a charge they arrested him
                on, they are now trying to justify their actions by *** claiming that he resisted.”
       The court reiterated that the State could withdraw the stipulation because “[i]t’s a stipulation of
       their witness.”
¶9          The court then granted the State’s motion in limine, barring defendant from referencing in
       opening statements the fact that the police arrested the wrong person. The court noted that
       further objections could be raised during the evidentiary portion of the trial. After a discussion
       of jury instructions, the jury was brought into the courtroom, and the parties proceeded to
       opening statements.
¶ 10        The State called three Bolingbrook police officers in its case-in-chief, Steven Ficek, John
       Tuttle, and Jon Costion. The officers testified that they were investigating a hit and run
       accident, which led them to defendant’s house, where they found the vehicle that had been
       involved in the accident. The officers called for a tow truck. As the vehicle was being hooked
       up to the tow truck, defendant exited the house through the garage. When Tuttle asked if the
       vehicle belonged to him, defendant told Tuttle that it did. Defendant then looked over his
       shoulder and began shuffling back toward the garage. Tuttle attempted to grab defendant’s arm
       to prevent him from retreating into the house, but defendant jerked his hand away. Tuttle
       decided to arrest defendant and told him to put his hands behind his back. Defendant did not
       comply, and a struggle ensued. Costion observed the struggle, tackled both men, and then
       assisted in prying defendant’s arms behind his back. Ficek assisted as well.
¶ 11        Throughout the cross-examination of the officers, the court sustained the State’s objections
       when defense counsel attempted to elicit testimony regarding Ali or the car accident. The court
       also prevented defense counsel from asking the officers about injuries that defendant sustained
       in the altercation.
¶ 12        Defendant, his niece, his sister, and his brother testified during defendant’s case-in-chief.
       The direct examination of each witness was riddled with sustained State’s objections as well,
       all stemming from questions related to the car accident or the arrest of the incorrect person. The
       court rejected defense counsel’s argument that the State had opened the door by asking the
       officers about their investigation and the vehicle they were looking for.
¶ 13        Defendant testified that he told the officers that the vehicle was not his but belonged to his
       brother. After he asked what was happening, the officers tackled him. Defendant testified that

                                                    -3-
       he never took a step back from the police officers and never looked over his shoulder. He
       testified that he was tackled immediately and would not have had time to accomplish those
       things. Defendant testified that he never struggled or resisted by moving his body when the
       officers were handcuffing him. Defendant testified that he went to the hospital some time
       thereafter, but the court prevented defense counsel from asking any further questions on the
       subject.
¶ 14       The jury found defendant guilty, and the court sentenced him to a 12-month term of
       conditional discharge.

¶ 15                                             ANALYSIS
¶ 16       On appeal, defendant contends that the circuit court erred when it allowed the State to
       unilaterally withdraw the stipulation that the parties had agreed to the day before. We agree.
¶ 17       A stipulation is a conclusive agreement between the parties with respect to an issue before
       the court. People v. Woods, 214 Ill. 2d 455, 468 (2005). In that vein, parties may stipulate to the
       testimony of a witness in the event that the witness is not present at trial. E.g., People v.
       Durgan, 346 Ill. App. 3d 1121, 1127-28, 1132 (2004). Courts look with favor upon stipulations
       because they “tend to promote disposition of cases, simplification of issues[,] and the saving of
       expense to litigants.” In re Estate of Moss, 109 Ill. App. 2d 185, 192 (1969); People v. Calvert,
       326 Ill. App. 3d 414, 419-20 (2001). “Parties who agree to certain terms are estopped from
       later objecting to the terms of that agreement. Generally, neither can complain of evidence
       stipulated into the record [citations].” People v. Baynes, 88 Ill. 2d 225, 239 (1981).
¶ 18       A stipulation signed by attorneys for both parties is binding. Kazubowski v. Kazubowski,
       93 Ill. App. 2d 126, 134 (1968) (per curiam). “It is obvious that one of the parties to a
       stipulation cannot withdraw from the binding force of such stipulation unless he has the
       consent of the other party or leave of the court [citation].” Id. “The law in Illinois is well settled
       that: ‘Parties will not be relieved from a stipulation in the absence of a clear showing that the
       matter stipulated is untrue, and then only when the application is seasonably made.’ ” People v.
       Polk, 115 Ill. App. 3d 1011, 1013 (1983) (quoting Brink v. Industrial Comm’n, 368 Ill. 607,
       609 (1938)).
¶ 19       The policy favoring stipulations—and disfavoring the withdrawal from those
       stipulations—is well illustrated in People v. Siems, 170 Ill. App. 3d 894 (1988). In that case,
       the parties on appeal agreed to a stipulated statement of facts in lieu of a report of proceedings.
       Id. at 895. This included a stipulation that Kentucky was a member of the Driver License
       Compact.1 Id.
¶ 20       In fact, Kentucky was not a member of that compact. Id. at 896. After defendant had filed
       his brief, the State moved to withdraw the agreed statement of facts. Id. at 895-96. Defendant
       objected, arguing that his brief was filed in reliance on the stipulation. Id. at 896. The Siems
       court denied the State’s request to withdraw the stipulation on the grounds that the request was
       not seasonably made, noting that “the State did not seek relief until seven months after the
       stipulation was entered into and filed and five months after defendant filed his brief based
       solely upon the stipulation in question.” Id. at 897.


           1
            The issue in Siems turned on whether the defendant’s Kentucky driver’s license stood as a defense
       to an Illinois prosecution for driving while his license was revoked.

                                                     -4-
¶ 21       In the present case, the parties presented their signed stipulation to the circuit court, and the
       court accepted the stipulation, read it into the record, and entered a written order referencing it.
       When the State moved to withdraw the stipulation, it did not allege that the facts contained
       therein were untrue or incorrect. Nor does the State argue as much on appeal. Absent “ ‘a clear
       showing that the matter stipulated is untrue,’ ” the circuit court had no grounds on which it
       could allow the State to unilaterally withdraw the stipulation. Polk, 115 Ill. App. 3d at 1013
       (quoting Brink v. Industrial Comm’n, 368 Ill. 607, 609 (1938)).
¶ 22       Furthermore, the State’s request to withdraw the stipulation was not seasonably made. The
       request was made just moments before opening statements commenced, providing the defense
       with no time to react to the change in the case. Indeed, that change in the case was
       monumental, as much of the defense’s theory of the case turned on Ali’s stipulated testimony
       opening the door to evidence of the police arresting the wrong person. To be sure, the
       stipulation had been entered only a day earlier, a far cry from the seven months in Siems.
       However, the Siems court also considered the impact withdrawal would have on the opposing
       party. Here, just as in Siems, defendant was relying heavily on the stipulation.
¶ 23       In response, the State argues that it is not required to call any witness at trial and that from
       that well-settled rule it follows that it is also not required to use any stipulation at trial. While
       the State is plainly correct that it is not required to call a certain witness, that particular point of
       law has no bearing on the stipulation issue. The State’s argument that “there was no
       requirement that the People actually use the stipulation” relies on a flawed premise. While Ali
       was the State’s witness, the stipulation to his testimony was a binding agreement between both
       parties. See Kazubowski, 93 Ill. App. 2d at 134. The stipulation did not belong to the State any
       more than it did to defendant, and the State did not retain any greater right to withdraw the
       stipulation than did defendant.
¶ 24       The State also asserts that its withdrawal of the stipulation “was timely made prior to it
       being entered into evidence.” We reject the argument that a stipulation is not binding on the
       parties until it is read to the jury at trial. The parties here agreed to Ali’s stipulated testimony
       and presented a copy signed by both parties to the circuit court. The circuit court accepted the
       stipulation, read it into the record, and issued a written order referencing the stipulation.
       Clearly the steps required for the formation of a binding stipulation were satisfied. Id.
¶ 25       Indeed, the facts of the present case illustrate precisely why the State’s argument must fail.
       If a stipulation was not binding until executed at trial, a party could make any number of
       stipulations prior to trial—thus inducing certain strategic decisions from the opponent—only
       to withdraw from those stipulations on the eve of trial. Here, the State stipulated to Ali’s
       testimony. From defendant’s perspective, this stipulated testimony regarding the car accident
       and Ali’s identification of the driver would open the door to those issues, allowing defendant to
       elicit further testimony from the other witnesses in the case. When the State was allowed to
       withdraw the stipulation at the eleventh hour in order to prevail on a motion to bar references to
       those issues, it undermined the defense’s entire theory of the case, with mere moments before
       opening statements were to begin.
¶ 26       Finally, the State argues that the defense could have subpoenaed Ali and called him as a
       witness and that, “having failed to do so, defendant cannot now claim prejudice.” However, the
       prejudice suffered by defendant in this case is clear. Initially, the very fact that a stipulation
       regarding Ali’s testimony was agreed to obviated any need for the defense to subpoena Ali.
       The existence of the stipulation should have guaranteed that Ali’s testimony would be

                                                      -5-
       presented, one way or another. Having reached that agreement, there was no reason for the
       defense to subpoena Ali.
¶ 27       Moreover, the trial record demonstrates the impact that the court’s erroneous decision to
       allow the State to withdraw from the stipulation had on defendant’s case. As referenced above,
       much of defendant’s theory of the case turned on eliciting testimony regarding the officers’
       arrest of the wrong person for fleeing the scene of the car accident. Ali’s stipulated testimony
       guaranteed that that door would be open to defendant.2 As a result of the late withdrawal of the
       stipulation, the defense was essentially left without a theory of the case, as it was not allowed
       to attack the officers’ credibility. See supra ¶ 8. Defense counsel’s cross-examinations and
       direct examinations were thus replete with constant sustained objections, and the trial had to be
       paused numerous times so the parties could argue on those objections. To say that the court’s
       decision to allow the State to withdraw the stipulation just before trial did not impact
       defendant’s case is patently incorrect.
¶ 28       In sum, the parties agreed to a binding and conclusive stipulation. When the State later
       wished to withdraw the stipulation, defendant did not consent. Nor did the State make a
       showing that the stipulation was untrue. Further, the request for withdrawal was not seasonably
       made, as it occurred just moments before defendant’s trial was to begin. Accordingly, it was
       error for the circuit court to allow the State to withdraw the stipulation (see Polk, 115 Ill. App.
       3d at 1013; Kazubowski, 93 Ill. App. 2d at 134), and the State cannot show that the withdrawal
       was harmless. We therefore vacate defendant’s conviction for resisting a peace officer, order
       the reinstitution of the parties’ previously agreed-upon stipulation, and remand for further
       proceedings. Because we find the stipulation issue dispositive, we need not address the
       remainder of defendant’s arguments.

¶ 29                                         CONCLUSION
¶ 30       The judgment of the circuit court of Will County is vacated, and the matter is remanded for
       further proceedings.

¶ 31       Vacated and remanded.

¶ 32       JUSTICE WRIGHT, dissenting:
¶ 33       The issue, in my mind, is whether the trial court abused its discretion by allowing a party to
       remove a witness from a pretrial witness list before the jury selection process began. In this
       case, I conclude the trial court’s ruling was entirely justified and correct as discussed below.
¶ 34       For purposes of clarification, I respectfully disagree that the agreed language that the court
       read into the record constitutes a binding “stipulation” in the first place. The document at issue
       does not admit facts necessary to prove the cause of action or agree to waive certain
       foundational requirements for documentary evidence to be submitted to the court. Instead, the
       document at issue in this appeal represents an agreed statement pertaining to a potential
       witness’s testimony. For purposes of this dissent, for the most part, I will refer to the document
           2
            The State on appeal effectively concedes that it was a tactical error for the State to enter into the
       stipulation in the first place, noting that “the People withdrew the stipulation due to the
       misapprehension of the effect on its case.” Of course, saving a party from its own blunder is not a legal
       grounds for allowing the unilateral withdrawal of a stipulation.

                                                       -6-
       at issue as “Ali’s agreed testimony.” At this juncture, a discussion of some additional
       procedural events may be helpful. After a jury trial in 2014, a new trial became necessary for
       reasons that are not relevant to this appeal. Interestingly, the State did present the testimony of
       the lay witness during the 2014 trial. However, during the 2014 trial, Ali told the jury he
       identified the vehicle involved in the collision by the paint on the bumper of that vehicle. There
       was no discussion of the facial appearance of the driver of that car during the 2014 trial.
¶ 35        As the court attempted to schedule a date for the second jury trial, the court encountered
       many scheduling difficulties. At various times the witnesses were present on the day scheduled
       for the second jury trial, and the trial was continued to another date. For example, after many
       continuances and delays, the court scheduled the second jury trial to begin on September 22,
       2015. On that date, the State had four witnesses, a lay witness and three police officers, present
       and ready for trial. In fact, both the prosecutor and defense counsel announced they were ready
       to proceed with the jury trial on September 22, 2015.
¶ 36        When the State learned that the testimony would not begin until the next day, the State
       advised the court that one of the officers present on September 22, 2015, would not be
       available to testify the next day due to bereavement leave. The court discussed several
       alternatives with the parties. The court asked, “Is there any way you can stipulate to the
       officer’s testimony?” (Emphasis added.) In spite of the court’s suggestion, defense counsel
       advised the court that the defense was not prepared to stipulate to the content of the officer’s
       testimony. However, the parties agreed to continue the jury trial to November 2, 2015.
¶ 37        When the parties reassembled on November 2, 2015, the unavailability of the police officer
       was no longer an issue. As the first order of business on November 2, 2015, the prosecutor
       advised the trial court that defense counsel wished to argue a verbal motion in limine before
       proceeding further. On that date, the State also requested a ruling on the State’s verbal motion
       in limine. Before addressing the defense motion, the court asked, “Do we have a stipulation?”
       Without responding to the court’s question, the prosecutor stated that defense counsel would
       like to argue the motion in limine “first.”
¶ 38        The court asked, “What’s the motion in limine?” Defense counsel responded, “Judge, the
       motion in limine is to exclude part of the stipulation as being irrelevant.” The defense motion
       requested a ruling preventing the State from introducing any evidence concerning Ali’s
       statement “that’s him, but he shaved his mustache.” The court denied the defense’s verbal
       motion in limine and then addressed both sides by stating, “Forget about the stipulation.” The
       court explained this statement as follows: “[Y]ou are not going to read the stipulation because
       he wants this and you want to bar it.”
¶ 39        Based purely on my own speculation based on prior experiences on the bench, it appears to
       me that the prosecution’s lay witness may have been present on November 2, 2015, but would
       have been inconvenienced by returning to court the following day when testimony would
       begin. It also appears to me that for some reason that is not apparent of record, both sides
       attempted to reach an agreement pertaining to the content of the lay witness’s testimony for
       purposes of the second trial. Before adjourning for lunch on November 2, 2015, the court
       asked, “What about the stipulation?” Defense counsel said, “I think we can come up with a
       stipulation.” The court cautioned, if you do not have a stipulation, you may not have a trial. For
       purposes of this dissent, I have presumed the trial court was referring to a “stipulation”
       pertaining to the content of the lay witness’s testimony, rather than an officer’s testimony.


                                                    -7-
¶ 40        After the lunch break on November 2, 2015, the parties continued their debate over the
       relevance of Ali’s agreed testimony pertaining to a shaved mustache. Following the spirited
       debate, the court seemingly reversed its previous ruling denying defense counsel’s motion
       in limine. At this point in time, the court reserved ruling on defendant’s motion in limine,
       seeking to exclude Ali’s testimony about a shaved mustache, based on relevance. The court
       indicated the matter would be addressed by the court when the issue came up during the jury
       trial. Again, I believe the court’s ruling mandated that Ali would have to testify before the
       court decided whether portions of Ali’s testimony were irrelevant and inadmissible.
¶ 41        Thereafter, the court received each side’s list of witnesses. The court also requested the
       “stipulation” that was finalized during the lunch recess. The court read the stipulation
       concerning Ali’s agreed testimony into the record before jury selection began. Thereafter,
       defense counsel presented an order for the court’s signature. This order documented the court’s
       prior ruling in limine and defendant’s continuing objection to Ali’s agreed testimony about the
       shaved mustache. Importantly, the order presumably prepared by defense counsel stated, “The
       defense will stipulate that if called to testify witness Danish [sic] Ali” would testify about a
       shaved mustache and this testimony would be over the defense’s continuing objection. Thus, it
       appears to me that the parties were addressing a contingency that might arise if the State
       introduced the document containing Ali’s agreed testimony, in lieu of requiring Ali to reappear
       the next day to testify in person.
¶ 42        At this point, the prosecutor stated for the record that the State might call Ali to testify in
       person. In response, the court observed, then the stipulation “goes in the garbage.” Similarly,
       defense counsel replied that if Ali was in the courthouse on the next day, defense counsel
       would call Ali as a defense witness, even if the State did not. Following this discussion, jury
       selection began.
¶ 43        After the selection of a jury, the parties once again revisited the trial court’s ruling on the
       defense’s pretrial motion in limine and the State’s motion to exclude any reference to
       defendant’s false arrest. The court observed in the event that the State introduced Ali’s agreed
       testimony as part of the State’s case-in-chief, the court would allow the defense to introduce
       testimony pertaining to the false arrest based on Ali’s mistaken identification. The court
       observed that Ali’s agreed testimony, if offered, opened the door to this line of evidence from
       the defendant. Based on the court’s preliminary pretrial observations, the prosecutor
       announced the State would not be offering either Ali’s agreed testimony or Ali’s live
       testimony.
¶ 44        The shift in the prosecution’s strategy took place before jury selection took place and
       before the jury trial officially began. Over defense counsel’s objection, the court allowed the
       State to control its own trial strategy by removing Ali’s name from the State’s witness list
       before the parties engaged in the process of selecting a fair-minded jury. I submit that the trial
       court’s ruling was entirely correct because both sides were very much aware of the
       contingency that Ali’s agreed testimony might not be used during the jury trial at all.
¶ 45        For example, the order signed by the court on November 2, 2015, contains language
       suggesting that “if” the State offers the testimony of Ali, then the defense will stipulate to the
       content of Ali’s testimony. This language indicates to me that on November 2, 2015, the
       defendant knew the State might not offer any testimony from Ali. In addition, the court advised
       the parties that if Ali testified in person, the stipulation was “garbage.” Finally, defendant
       addressed the contingency that, even if Ali returned to the courthouse for the evidentiary

                                                    -8-
       portion of the trial, the State might not call Ali to testify. In this event, the defense indicated Ali
       could become a defense witness. Based on these circumstances, I do not believe the trial court
       erred by refusing to require the State to produce Ali as a live witness or tender Ali’s agreed
       testimony as part of the State’s case-in-chief.
¶ 46       After the trial court’s ruling, defense counsel did not request the court to continue Ali’s
       subpoena so that Ali would be present to testify for the defense sometime after November 2,
       2015. The court may have granted such a request. Perhaps, in spite of many false starts, if
       defendant requested a continuance the court would have postponed the testimonial portion of
       the trial. The defense did nothing after learning that the State’s case-in-chief would not include
       any testimony, agreed or otherwise, from the lay witness, Ali.
¶ 47       Contrary to defendant’s position on appeal, I would hold that either party may be allowed
       to strike a witness from the list of witnesses before or after a trial begins. In other words, I
       conclude that neither party can be compelled by the trial court to present each and every
       witness disclosed to the other party during pretrial proceedings. For this reason, I respectfully
       dissent. I believe the trial court made the correct decision in this case.




                                                      -9-
