                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Collins, 2013 IL App (2d) 110915




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ANDREW A. COLLINS, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0915


Filed                      February 20, 2013


Held                       On appeal from defendant’s conviction for the delivery of a controlled
(Note: This syllabus       substance within 1,000 feet of a park, the appellate court held that the
constitutes no part of     trial court properly barred disclosure of the entire personnel file of the
the opinion of the court   undercover officer who made the purchase and refused to allow the
but has been prepared      officer to be impeached with the disclosed part of the file, since his
by the Reporter of         character was not an element of the charge, claim, or defense for purposes
Decisions for the          of Rule 405 of the Illinois Rules of Evidence; however, the public
convenience of the         defender fee imposed on defendant without a hearing on his ability to pay
reader.)
                           was vacated and the cause was remanded for a hearing on that issue.


Decision Under             Appeal from the Circuit Court of Kane County, No. 10-CF-1508; the
Review                     Hon. Allen M. Anderson, Judge, presiding.



Judgment                   Affirmed in part and vacated in part; cause remanded.
Counsel on                 Thomas A. Lilien and Sherry R. Silvern, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Barry W. Jacobs, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justices Hutchinson and Birkett concurred in the judgment and opinion.




                                              OPINION

¶1          Following a bench trial, the defendant, Andrew A. Collins, was convicted of delivery of
        a controlled substance within 1,000 feet of a park (720 ILCS 570/401(c) (West 2010)) and
        sentenced to eight years’ imprisonment. On appeal, the defendant argues that the trial court
        erred in (1) barring the defense from viewing the police department personnel file of the
        testifying officer and impeaching him with information contained in that file and (2)
        imposing a public defender reimbursement fee in the absence of a statutorily required
        hearing. We affirm in part, vacate in part, and remand for a hearing.

¶2                                         I. BACKGROUND
¶3           On July 21, 2010, the defendant was charged by indictment with unlawful delivery of a
        controlled substance within 1,000 feet of a park (720 ILCS 570/401(c) (West 2010)) (count
        I) and unlawful delivery of between 1 and 15 grams of heroin (720 ILCS 570/401(c)(1)
        (West 2010)) (count II). Prior to trial, the defendant filed a subpoena seeking the personnel
        file of narcotics officer Craig Tucker of the Elgin police department.
¶4           On August 31, 2010, the State argued that the defendant was not entitled to Officer
        Tucker’s employment records because the defendant did not show the relevancy of the
        records. Specifically, the State argued that the defendant did not show that the officer was
        ever disciplined and, absent discipline, any incidents in the personnel file were mere
        allegations. The defendant argued that he had information related to a specific prior incident
        and that Officer Tucker’s credibility was crucial to the State’s case. Following argument, the
        trial court noted that there was a difference between disclosure of information and use in
        court. The trial court stated that it had reviewed the personnel file in camera. The trial court
        found that five pages were discoverable information that was relevant to Officer Tucker’s
        credibility and turned those over to the defense.
¶5           The five pages of Officer Tucker’s personnel file indicated that, in 2006, one of Officer

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     Tucker’s colleagues from another police department contacted Officer Tucker and requested
     that, if contacted by the deputy chief of the Carpentersville police department, he provide
     inaccurate information regarding whether a certain person had acted as an informant. Officer
     Tucker was contacted by the deputy chief and he provided the inaccurate information.
     Although Officer Tucker’s subsequent explanation that he was not aware his colleague was
     under investigation and that he thought he was merely “settling some argument” was
     believed, he was cited for violations of the Elgin police department rules and regulations and
     suspended for one day.
¶6       On October 7, 2010, the State filed a motion in limine seeking to bar any impeachment
     of Officer Tucker with the specific incident of misconduct found in the subpoenaed records.
     On October 20, 2010, a hearing was held on the State’s motion. The State argued that it
     would be improper to impeach Officer Tucker with specific past instances of untruthfulness.
     The State further argued that the records did not show bias, interest, or motive to testify
     falsely in the present case. The defendant first argued that a ruling on the issue would be
     premature since the nature and extent of the officer’s testimony at trial was yet unknown. The
     defendant also argued that, under Rule 405 of the Illinois Rules of Evidence (Ill. R. Evid. 405
     (eff. Jan. 1, 2011)), it was proper to impeach Officer Tucker with specific instances of
     Officer Tucker’s truthfulness and character. The defendant argued that the records, showing
     that Officer Tucker failed to cooperate with a police department investigation and gave
     inaccurate information, went directly to Officer Tucker’s truthfulness, a crucial issue in the
     defendant’s case. Following argument, the trial court noted that the Illinois Rules of
     Evidence were not effective until January 1, 2011, and thus were not in effect for purposes
     of the motion. Nonetheless, the trial court found that, even if they were in effect, the rules
     did not change the fact that impeachment with specific instances of past conduct was not
     allowed. Accordingly, the trial court granted the State’s motion.
¶7       On April 21, 2011, the defendant waived his right to a jury trial and proceeded with a
     bench trial. The evidence showed that on June 11, 2010, Officer Tucker called the defendant
     to arrange a heroin purchase and suggested they meet at a gas station, across from Trout Park,
     at 1389 Dundee, in Elgin. The two arranged to meet at 12:30 p.m., when Officer Tucker
     would buy $180 worth of heroin from the defendant. A narcotics team was set up to follow
     Officer Tucker to the arranged buy. Officer Tucker was given money that had been
     photocopied.
¶8       Officer Tucker testified as follows. He arrived at the gas station with the money at 12:36
     p.m. The defendant arrived, parked his car, and went to Officer Tucker’s front passenger-side
     window. The defendant handed Officer Tucker a clear plastic baggie containing several
     tinfoil squares. Officer Tucker made his arrest signal as he handed the defendant the money.
     Officer Tucker took the plastic baggie back to the police station. Officer Tucker measured
     the distance from the gas station to Trout Park to be 509 feet. Officer Tucker testified to the
     calibration of the measuring wheel.
¶9       Other officers testified that, following the arrest signal, they arrived and saw the
     defendant standing at the passenger-side window of Officer Tucker’s vehicle. They arrested
     the defendant. The money was scattered on the ground next to the defendant. At the police
     station, the content of the tinfoil squares tested positive for heroin. The content of the tinfoil

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       squares was taken to the Illinois State Police crime lab, where it also tested positive for
       heroin and was determined to weigh 1.2 grams. Following closing arguments, the trial court
       found the defendant guilty of both counts of the indictment.
¶ 10       On August 31, 2011, following the denial of the defendant’s motion for a new trial, a
       sentencing hearing was held. Following the hearing, the trial court sentenced the defendant
       to eight years’ imprisonment. In addition to other fines and costs, the trial court imposed a
       public defender fee of $1,000. The trial court also ordered that the two convictions be
       merged. On September 9, 2011, the trial court denied the defendant’s motion to reconsider
       his sentence. The defendant filed a timely notice of appeal.

¶ 11                                        II. ANALYSIS
¶ 12       On appeal, the defendant argues that the trial court erred in refusing to allow the defense
       to view Officer Tucker’s entire personnel file and to impeach Officer Tucker with
       information contained in that file. The defendant also argues that the trial court erred in
       imposing a public defender fee in the absence of a statutorily required hearing. We will
       address each of these arguments in turn.
¶ 13       The defendant first argues that the trial court erred in refusing to allow the defense to
       view Officer Tucker’s entire personnel file. The defendant requests that we conduct our own
       in camera review to determine whether there was any other material, besides what was
       disclosed by the trial court, that was relevant to Officer Tucker’s truth, veracity, or motive
       to testify falsely.
¶ 14       Generally, employment records are subject to subpoena if there is a showing that the
       records are relevant. People v. Williams, 267 Ill. App. 3d 82, 87-88 (1994); People v.
       Freeman, 162 Ill. App. 3d 1080, 1098 (1987). “The trial court has broad discretion in ruling
       on issues of relevance and materiality and its determination will not be disturbed absent an
       abuse of discretion.” Williams, 267 Ill. App. 3d at 87. We may review in camera the records
       reviewed by the trial court, to determine whether the trial court abused its discretion in
       disclosing only five pages of the subject personnel file. See People v. Hooker, 253 Ill. App.
       3d 1075, 1081 (1993); People v. Jennings, 254 Ill. App. 3d 14, 22 (1993). We have examined
       Officer Tucker’s personnel file and conclude that the trial court did not abuse its discretion,
       as no other information contained in the file was relevant to Officer Tucker’s credibility or
       suggested any motive to testify falsely.
¶ 15       The defendant next argues that the trial court erred in granting the State’s motion in
       limine, barring the impeachment of Officer Tucker with the information disclosed from the
       personnel file. A ruling on a motion in limine is a matter within the discretion of the trial
       court and will not be reversed absent an abuse of that discretion. People v. Nelson, 235 Ill.
       2d 386, 420 (2009). A trial court abuses its discretion when its ruling is arbitrary, fanciful,
       or unreasonable or where no reasonable person would take the view adopted by the trial
       court. People v. Anderson, 367 Ill. App. 3d 653, 664 (2006). “A criminal defendant has a
       fundamental constitutional right to confront the witnesses against him and this includes the
       right to conduct a reasonable cross-examination. The defendant has the right to inquire into
       a witness’ bias, interest, or motive to testify falsely.” People v. Coleman, 206 Ill. 2d 261, 278

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       (2002). However, the evidence must not be remote or uncertain; rather, it must give rise to
       an inference that the witness has something to gain or lose by his testimony. Id.
¶ 16        The defendant argues that Officer Tucker’s credibility was a crucial aspect of the case
       against him because Officer Tucker was the only one with firsthand knowledge of the drug
       transaction for which he was prosecuted. Accordingly, the defendant argues that it was error
       to limit his ability to challenge Officer Tucker’s credibility by impeaching him with the
       incident of discipline contained in the disclosed portion of his personnel file.
¶ 17        In arguing that the trial court erred, the defendant relies on People v. Phillips, 95 Ill. App.
       3d 1013 (1981). In Phillips, the defendant was convicted of charges in relation to an incident
       where he shot an off-duty police officer. Id. at 1015. The defendant testified that he shot the
       officer because the officer was “pistol whipping or waving his gun at his brother,” who was
       unarmed and trying to get away, and he thought the officer was going to shoot his brother.
       Id. at 1018. The officer testified that the defendant’s brother came at him with a tire iron and
       he pulled his gun and ordered the man to drop the tire iron. Id. at 1016. When he was 5 to 10
       feet away from the defendant’s brother, he was shot from behind. Id. The trial court barred
       cross-examination of the officer as to his employment records, which showed that he had
       been suspended from the police force 15 times, including 2 instances for improperly
       displaying a weapon and then filing a false report. Id. at 1015.
¶ 18        In reversing, the reviewing court noted that evidence of prior misconduct may be used
       to impeach a witness if it shows his bias, interest, or motive to testify falsely. Id. at 1019. The
       court further noted that the evidence of bias, interest or motive “must not be remote or
       uncertain because the evidence must potentially give rise to the inference that the witness has
       something to gain or lose by his testimony.” Id. at 1020. The reviewing court found that the
       evidence of the past suspensions was not remote, because the officer could have been
       motivated to testify falsely to avoid a further suspension or a termination, or to ensure the
       continuance of his medical benefits and compensation. Id. at 1021.
¶ 19        The defendant’s reliance on Phillips is misplaced. In Phillips, the evidence in the
       officer’s personnel file was not remote or uncertain, because it was directly related to the
       defendant’s theory of the case. The defendant in Phillips argued that he shot the officer
       because the officer was improperly using his own weapon in a threatening manner. The
       personnel file showed that the officer had been suspended in the past for improperly
       displaying his weapon. Here, the evidence contained in the personnel file indicated that
       Officer Tucker received a one-day suspension for knowingly providing inaccurate
       information to a deputy chief conducting an investigation in another police department. The
       matter was not in any way related to Officer Tucker’s ability to conduct undercover drug
       transactions and did not raise an inference that he had anything to gain or lose by his
       testimony in the present case. The defendant’s argument that Officer Tucker would testify
       falsely to avoid any further discipline is unsupported speculation that is remote and uncertain.
       Under these circumstances, the trial court did not err in granting the State’s motion in limine.
       See Coleman, 206 Ill. 2d at 279 (no error in barring cross-examination of officer regarding
       pending civil suits alleging misconduct, because the suits did not concern the officer’s
       actions in conducting lineups–the only duty the officer had and testified to in that case);
       Williams, 267 Ill. App. 3d at 87 (no error in barring evidence of officer’s disciplinary record

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       where defendant argued that officer exhibited odd behavior following traffic stop; procedure
       followed was not relevant to whether defendant ultimately committed a battery and resisted
       arrest).
¶ 20       In so ruling, we note that the defendant argues that Rule 405 of the Illinois Rules of
       Evidence (Ill. R. Evid. 405 (eff. Jan. 1, 2011)) allows for use of specific instances of conduct
       to establish a witness’s character. The defendant notes that, although Rule 405 was not in
       effect at the time of the hearing on the State’s motion in limine, it was in effect at the time
       of trial. Rule 405 states:
                “(b) Specific Instances of Conduct.
                    (1) In cases in which character or a trait of character of a person is an essential
                element of a charge, claim, or defense, proof may also be made of specific instances
                of that person’s conduct[.]” Id.
       We find the defendant’s argument to be without merit. The comment to that rule explains:
           “Specific instances of a person’s conduct are admissible, however, under Rule 405(b)(1),
           as proof of a person’s character or a trait of character only in those limited cases (such
           as negligent entrustment, negligent hiring, and certain defamation actions), when a
           person’s character or a trait of character is an essential element of a charge, claim, or
           defense.” Ill. R. Evid. 405, Comment (adopted Sept. 27, 2010).
       In the present case, Officer Tucker’s character is not an element of a charge, claim, or
       defense. Accordingly, the defendant’s reliance on Rule 405 is misplaced.
¶ 21       The defendant’s final contention on appeal is that the public defender reimbursement fee
       should be vacated because it was imposed in the absence of a statutorily required hearing to
       determine the defendant’s ability to pay. Specifically, section 113-3.1(a) of the Code of
       Criminal Procedure of 1963 provides as follows:
           “Whenever under either Section 113-3 of this Code or Rule 607 of the Illinois Supreme
           Court the court appoints counsel to represent a defendant, the court may order the
           defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse either
           the county or the State for such representation. In a hearing to determine the amount of
           the payment, the court shall consider the affidavit prepared by the defendant under
           Section 113-3 of this Code and any other information pertaining to the defendant’s
           financial circumstances which may be submitted by the parties. Such hearing shall be
           conducted on the court’s own motion or on motion of the State’s Attorney at any time
           after the appointment of counsel but no later than 90 days after the entry of a final order
           disposing of the case at the trial level.” 725 ILCS 5/113-3.1(a) (West 2010).
       Section 113-3.1(a) requires the trial court to conduct a hearing to determine a defendant’s
       ability to pay before it may impose a public defender fee. People v. Love, 177 Ill. 2d 550, 563
       (1997). The State concedes that the trial court failed to conduct the necessary hearing and
       that the public defender fee should be vacated.
¶ 22       Nonetheless, the parties differ as to the appropriate relief. Relying on Love, id. at 565,
       the State argues that the appropriate relief is to vacate the public defender fee and remand for
       a hearing. The defendant argues that the appropriate relief is to vacate the fee outright.


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       Alternatively, the defendant proposes that we refrain from ruling and await a forthcoming
       supreme court decision. The parties agree that the issue of whether a court on remand may
       conduct a hearing and still impose the fee when more than 90 days has passed is currently
       pending before our supreme court in People v. Fitzpatrick, 2011 IL App (2d) 100463, appeal
       allowed, No. 113449 (Ill. Jan. 25, 2012).
¶ 23        In arguing that the appropriate relief is to vacate the fee outright, the defendant relies on
       People v. Gutierrez, 2012 IL 111590. In Gutierrez, the trial court sentenced the defendant
       to prison and imposed a $250 public defender fee. Id. ¶ 3. On appeal, the fee was vacated
       because the defendant had not received notice and a hearing prior to imposition of the fee.
       Id. ¶ 4. The appellate court held that, despite the fact that the 90-day period had passed, the
       appropriate relief was to remand for a hearing. Id. The defendant appealed to our supreme
       court, arguing that the public defender fee should have been vacated outright. Id. ¶ 16. The
       defendant’s contention was that the statutorily required hearing could not take place later
       than 90 days after the entry of the final order. Id. ¶ 19. Our supreme court vacated the fee
       outright, but not for the reason argued by the defendant. The fee was vacated because neither
       the State nor the trial court moved for the fee, as required by the statute. Id. ¶ 24. Rather, the
       clerk of the circuit court had, in the absence of any statutory authority, imposed the fee on
       its own. Id. The Gutierrez court held that “[p]ursuant to statute, a public defender fee may
       be imposed only by the circuit court after notice and a hearing on the defendant’s ability to
       pay.” Id. ¶ 26.
¶ 24        The State argues that Gutierrez is distinguishable because in the present case the trial
       court, not the circuit clerk, imposed the public defender fee. The State further notes that the
       court ordered the fee at the sentencing hearing, which was within the 90-day period set forth
       in the statute. In his reply brief, the defendant acknowledges these distinguishing factors.
       However, the defendant cites the following admonishment found in Gutierrez:
            “Since [Love], the appellate court has routinely rejected the argument that the passage of
            more than 90 days after final judgment precludes courts from remanding cases for a
            hearing [on a defendant’s ability to pay a public defender fee] when a defendant has not
            been provided one, and Love is generally cited as authority for the proposition that
            remanding is the proper course. See, e.g., Schneider, 403 Ill. App. 3d at 304. We caution,
            however, that the timeliness issue was not raised in Love. In that case, the appellate court
            vacated the fee and remanded for a hearing, and, in his appellee’s brief in this court, the
            defendant specifically asked this court to affirm the appellate court’s judgment. Thus,
            Love should not be read as deciding the issue either way.” Id. ¶ 18.
       The defendant argues that the foregoing demonstrates that the Gutierrez court had also
       vacated the public defender fee on the grounds that the defendant had not been given notice
       and a hearing within the 90-day period.
¶ 25        We disagree. Although the Gutierrez court noted that reliance on Love in remanding a
       case for a hearing beyond the 90-day period might be suspect because Love did not address
       the issue, the Gutierrez court also did not make a determination on the issue. In fact, it
       expressly declined to address the issue of whether the 90-day period was mandatory or
       directory. Id. ¶ 21. Under the circumstances in the present case, the proper procedure is still


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       to vacate the public defender fee and remand for an appropriate hearing. People v. Brown,
       2012 IL App (2d) 110640, ¶ 28. In Brown, this court explained:
           “Quite simply, the legislature could not have intended the entire appellate process to be
           completed in the 90 days following the final order in the trial court. In re Marriage of
           Ricard, 2012 IL App (1st) 111757, ¶ 35 (holding that the legislature is presumed not to
           intend consequences that are absurd or inconvenient). We also perceive no intent on the
           part of the legislature to limit this court’s ability to order appropriate relief.” Id.

¶ 26                                   III. CONCLUSION
¶ 27       For the foregoing reasons, we affirm the judgment of the circuit court of Kane County
       refusing to allow the defense to view Officer Tucker’s entire personnel file and barring
       impeachment of Officer Tucker with the information disclosed from his personnel file.
       However, we vacate the public defender reimbursement fee and remand for a hearing
       pursuant to section 113-3.1(a).

¶ 28      Affirmed in part and vacated in part; cause remanded.




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