                                         2018 IL App (3d) 150892

                                 Opinion filed June 29, 2018
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2018

     THE PEOPLE OF THE STATE OF                        )      Appeal from the Circuit Court
     ILLINOIS,                                         )      of the 12th Judicial Circuit,
                                                       )      Will County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )      Appeal No. 3-15-0892
            v. 	                                       )      Circuit No. 13-CM-3031 

                                                       )

     FREDERICO PABLO,                                  )      Honorable

                                                       )      Daniel L. Kennedy,
            Defendant-Appellant.                       )      Judge, Presiding.
     _____________________________________________________________________________

           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.




                                                        2

¶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 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.


                                                        3

                                ***

                                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.


                                                          4

¶ 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

       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.




                                                        5

¶ 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.




               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.
                                                           6

¶ 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.

¶ 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.




                                                         7

¶ 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 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


                                                           8

       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 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.




               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.
                                                             9

¶ 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


                                                        10 

       witness’s testimony. For purposes of this dissent, for the most part, I will refer to the document 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



                                                        11 

       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.




                                                        12 

¶ 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




                                                         13 

       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 portion

       of the trial, the State might not call Ali to testify. In this event, the defense indicated Ali could



                                                          14 

       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.




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