                             No. 2--06--0060               filed: 8/22/06
_________________________________________________________________________
_____

                                          IN THE

                           APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
_________________________________________________________________________
_____
                                   )
THE PEOPLE OF THE STATE OF         ) Appeal from the Circuit Court
ILLINOIS,                          ) of Lake County.
                                   )
      Plaintiff-Appellant,         ) No. 05--CF--3717
                                   )
v.                                 )
                                   )
HOKE L. TURNER,                    ) Honorable
                                   ) Victoria A. Rossetti,
      Defendant-Appellee.          ) Judge, Presiding.
_________________________________________________________________________

_____

        JUSTICE BYRNE delivered the opinion of the court:

        Defendant, Hoke L. Turner, was indicted on three counts of aggravated criminal

sexual abuse (see 720 ILCS 5/12--16(d) (West 2004)), based, in part, on the allegation that

defendant committed an act of sexual conduct with the victim, who was at least 13 but

under 17 years of age, in that defendant allowed the victim to place his hand on

defendant's penis. While defendant was incarcerated and waiting for trial, the State

obtained from a judge other than the presiding judge a search warrant to photograph

defendant's penis. The State did not inform defense counsel of the warrant and defense

counsel was not present during the photographing session.             The presiding judge

sanctioned the State for failing to follow Supreme Court Rule 413(b) (134 Ill. 2d R. 413(b)),
No. 2--06--0060


and barred the State from presenting evidence of the photographs or testimony from those

individuals involved with the photographing session. The State appeals, contending that

the trial court (1) erred in applying Rule 413(b); (2) abused its discretion in suppressing the

evidence; and (3) erred by denying the State's alternative motion to obtain either

photographic evidence or a medical examination of defendant. We affirm but find that we

lack jurisdiction to address the State's last contention.

                                      BACKGROUND

        One week before trial began, the State, by its investigator, Mark Pleasant, obtained

a search warrant from Judge Valerie Ceckowski, who was not the presiding judge. The

warrant permitted Pleasant to photograph defendant's penis, in relation to evidence from

the victim that defendant was circumcised. Pleasant submitted the following facts in his

affidavit.

        Pursuant to a pending investigation, Pleasant spoke with the victim, who told

Pleasant that he became acquainted with defendant through a local church when he was

approximately 13 years old, after his father had died; that, after meeting and getting to

know defendant, they developed a father-son type of relationship; that he frequently spent

time with defendant and defendant's family; and that defendant opened a bank account for

him and gave him things, like clothing and a cell phone. The victim further told Pleasant

that, during the course of their relationship, defendant and the victim confided to each other

that they had been sexually abused when they were children. The victim stated that on

occasion, he and defendant would kiss each other. On one occasion, when the victim was

16 years old, defendant placed his hand on the victim's penis and masturbated him to the

point of ejaculation. On another occasion, the victim touched and masturbated defendant's


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penis and defendant touched and masturbated the victim's penis. During this incident, the

victim observed that defendant's penis was circumcised.

       When Pleasant asked defendant's wife whether defendant was circumcised, she

stated, "I think so...yeah...I'm pretty sure...yeah, I'm positive...it's a family tradition."

Nowhere in Pleasant's affidavit did he indicate that the case was pending for trial.

       Less than an hour after the warrant was issued, defense counsel appeared before

Judge Ceckowski asserting that he had no notice of the application for the search warrant

and objecting to the photographing of defendant's penis. Judge Ceckowski quashed the

search warrant. However, two sets of photos, one from the front and the other from the

side, already had been taken.

       Defense counsel filed before the presiding judge, Judge Victoria Rossetti, a motion

for sanctions and defense counsel averred that the State prepared the application for the

warrant without notice to him and presented it to another judge, without counsel's presence.

Counsel averred that in a telephone conversation with the prosecutor, he had objected to

the issuance of the warrant and the photographing of defendant and that, despite this

objection, the State continued to pursue the warrant. Counsel alleged that, during the

photo session, defendant twice asked to have counsel present and was told that counsel

was being made aware of the procedure, but the State made no attempt to contact him or

secure his presence. Counsel stated that, when defendant objected to further photos being

taken, he was threatened with being handcuffed or having additional individuals brought

into the room to force him to comply, and he was subjected to degrading remarks made by

the police officers involved. Defendant asserted that the episode violated his constitutional




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right to counsel, as well as Supreme Court Rule 413 (134 Ill. 2d R. 413), which required

that defense counsel be given notice and the chance to be present.

       Before the hearing on the motion began, Judge Rossetti noted for the record that

Judge Ceckowski called her after the search warrant had been issued and apologized for

not knowing that the case had been set for trial in front of Judge Rossetti. Judge Rossetti

stated that she told Judge Ceckowski to quash the warrant and send it to her. Judge

Rossetti further stated that she received notice afterward that the warrant already had been

executed.

       Pleasant testified at the hearing that he had advised Judge Ceckowski that the case

was pending for trial and that Pleasant knew that defendant was represented by counsel

but did not tell the judge. The assistant State's Attorney conceded during her testimony

that defense counsel was not given written notice of the warrant.

       The court found that the supreme court rules of discovery had been violated, and it

sanctioned the State by barring any evidence obtained during the photographing of

defendant or testimony from those individuals involved with the session. However, the

court would allow individuals who were not involved in the photographing session to testify

at trial regarding defendant's circumcision.

       After the State's motion for reconsideration was denied, the State asked to be heard

on its previously filed "Motion for Defendant Photos or Medical Exam Evidence," in which it

asked to conduct another photo session or, alternatively, a medical examination of

defendant regarding his circumcision. The court denied the motion, stating that because it

had sanctioned the State for failing to comply with discovery rules, it was "not appropriate




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to undue [sic] what was done by asking permission to now do properly what was done

improperly."

       The State timely appeals. In the certificate of impairment filed in this court, the State

certified that the suppression of evidence of defendant's circumcision obtained pursuant to

the search warrant, the grant of defendant's motion for sanctions, and the denial of its

motion for reconsideration substantially impair its ability to prosecute the case.

                                           ANALYSIS

                                                 I

       The State seeks to appeal the trial court's order suppressing evidence. Before

addressing the State's first contention, we must consider defendant's argument that this

interlocutory appeal should be dismissed for lack of jurisdiction. The State did not file a

reply brief and therefore did not respond to this argument. Regardless, we conclude that

defendant's jurisdictional challenge is not meritorious.            The State's right of appeal is

limited. Where the State takes issue with a nonfinal order entered by the trial court in a

criminal case, the threshold question of whether that order is appealable is determined by

Supreme Court Rule 604(a)(1) (Official Reports Advance Sheet No. 2 (January 18, 2006),

R. 604(a)(1), eff. December 13, 2005). See People v. Young, 82 Ill. 2d 234, 239 (1980).

Under Rule 604(a)(1), the State may bring an interlocutory appeal from "an order or

judgment" that has the substantive effect of (1) dismissing a charge for any of the grounds

enumerated in section 114--1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/114--1 (West 2004)); (2) arresting judgment because of a defective indictment,

information, or complaint; (3) quashing an arrest or search warrant; (4) suppressing

evidence; (5) decertifying a prosecution as a capital case on the grounds enumerated in section 9--


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1(h--5) of the Criminal Code of 1961; or (6) finding that the defendant is mentally retarded after a

hearing conducted pursuant to section 114--15(b) of the Code of Criminal Procedure of 1963.

Official Reports Advance Sheet No. 2 (January 18, 2006), R. 604(a)(1), eff. December 13, 2005.

       Before the State may obtain review under Rule 604 of a suppression order, the

prosecutor must certify to the trial court that the suppression substantially impairs his or her

ability to prosecute the case. Young, 82 Ill. 2d at 247. The State made such a certification

here. However, this certification does not foreclose our assessment of the order or render

it automatically appealable. See People v. Truitt, 175 Ill. 2d 148, 152 (1997).

       In Young, 82 Ill. 2d at 247, the supreme court held that it would not second-guess a

prosecutor's good-faith evaluation of the effect of a suppression order on his or her case.

However, before that principle even comes into play, the order must, in fact, be one that

suppresses evidence. Truitt, 175 Ill. 2d at 152. Defendant contends that the order does

not suppress evidence and that, therefore, the State does not have the right to appeal. We

disagree.

       In Truitt, the defendant was charged with unlawful delivery of a controlled substance.

Prior to trial, the State informed the trial court that it would prove that the substance was a

controlled substance simply by presenting a laboratory report, without calling as a witness

the chemist who prepared it, as then was permitted under section 115--15 of the Code (725

ILCS 5/115--15 (West 1994)). 1 The trial court found section 115--15 to be unconstitutional

and ordered that the State would have to call the chemist to testify. The State appealed


       1
           The procedure has since been ruled unconstitutional, in People v. McClanahan,

191 Ill. 2d 127 (2000).



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from the court's order, claiming that the order had the effect of suppressing evidence. The

supreme court rejected the claim, finding that the order did not prevent any facts or

opinions from being presented to the jury; rather, "it appears that its sole impact will be on

the manner in which those facts and opinions are presented." Truitt, 175 Ill. 2d at 152.

Instead of being able to rely on a piece of paper, the State would have to present testimony

from an actual witness. Truitt, 175 Ill. 2d at 152. Because the interlocutory order did not

suppress evidence, and the State had not claimed that the order fell within any of the other

provisions of Rule 604(a)(1), the court held that the State had no right to appeal the order

and, therefore, dismissed the appeal for lack of jurisdiction. Truitt, 175 Ill. 2d at 153.

       Defendant argues that the order appealed from here does not fall within the ambit of

Rule 604, because it does not have the effect of suppressing all evidence that defendant is

circumcised. In Truitt, the evidence was not suppressed, because the State was able to

present through witness testimony the identical facts contained in the laboratory report. In

fact, because the witness would be subject to cross-examination, the jury would receive a

"much more thorough explanation of the pertinent facts than the document alone could ever

provide." Truitt, 175 Ill. 2d at 152. The trial court's order here, however, does not have the

same effect. Although the State can present other evidence regarding whether defendant

is circumcised, there is no indication that it has any other evidence that will establish that

fact with the same definitiveness. Thus, we conclude that the order suppresses evidence.

       Defendant argues alternatively that this appeal should be dismissed because the

State is not substantially impaired in its ability to prosecute the case. A good-faith

evaluation by the prosecutor of the impact of a suppression order is sufficient to meet the




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State's burden. People v. Keith, 148 Ill. 2d 32, 40 (1992); Young, 82 Ill. 2d at 247. In

Young, the Illinois Supreme Court stated:

              "[W]e rely solely upon the good-faith evaluation by the prosecutor of the

       impact of the suppression order on his case. *** [W]e believe that the State's need

       to allocate its heavily taxed resources in the most productive manner will naturally

       limit appeals to those orders which substantially impair its ability to prosecute its

       case." Young, 82 Ill. 2d at 247-48.

We also will rely on the good-faith evaluation by the prosecutor. Accordingly, we find that

we have jurisdiction regarding the trial court's suppression order.

                                              II

       We turn now to the State's contention regarding the propriety of the suppression

order. The State contends that the trial court erred in suppressing for failure to follow Rule

413 the evidence of the observations and photos of defendant's penis, because the

evidence was, in effect, legally obtained with a search warrant pursuant to section 108--4 of

the Code (725 ILCS 5/108--4 (West 2004)). We therefore must decide whether the

circumstances in this case fall within Rule 413, which governs pretrial discovery in criminal

cases, or within section 108--4, which governs the issuance of search warrants. Because

the issue involves the interpretation of law, including the construction of a statute and

supreme court rules, our review is de novo. Robidoux v. Oliphant, 201 Ill. 2d 324, 332

(2002).

       A brief overview of the law is necessary. Rules 413(a)(iv) and (a)(ix), respectively,

provide that, notwithstanding the initiation of judicial proceedings and subject to

constitutional limitations, a judicial officer may require the accused, among other things, to


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pose for photographs not involving reenactment of a scene and to submit to a reasonable

physical or medical inspection of his body. 134 Ill. 2d Rs. 413(a)(iv), (a)(ix). Rule 413(b)

further requires that, whenever the personal appearance of the accused is required for any

of the foregoing purposes, reasonable notice of the time and place of such appearance

must be given by the State to the accused and his counsel, who shall have the right to be

present. 134 Ill. 2d R. 413(b).

       Although both Rule 413 and section 108--4 authorize evidence gathering and require

a judge to find probable cause before authorizing evidence-gathering procedures (see

People v. Jones, 30 Ill. App. 3d 562, 564 (1975)), section 108--4 does not require the State

to provide notification of its intent to obtain evidence through the physical presence of the

defendant, or to provide counsel the opportunity to be present when the State obtains the

evidence from the defendant. See 725 ILCS 5/108--4 (West 2004).

       The State maintains that it has found little authority concerning the "interplay

between the issuance of search warrants and the applicable Supreme Court Rules

regarding discovery in criminal cases." The State maintains that no specific mention is

made in either the applicable rules or the statutes that the issuance of a warrant is either

governed by discovery or barred postindictment. The State asserts that the use of a search

warrant is a separate and distinct alternative regarding preparation of the State's case,

even postindictment. We find the State's argument unavailing.

       The State fails to mention that Supreme Court Rule 411 (188 Ill. 2d R. 411) requires

that the supreme court rules regarding criminal discovery "shall" be applied in all criminal

cases "wherein the accused is charged with an offense for which, upon conviction, he might

be imprisoned in the penitentiary." The period between arraignment and trial is the most


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critical period of the proceedings during which the accused "requires the guiding hand of

counsel." Powell v. Alabama, 287 U.S. 45, 69, 77 L. Ed. 158, 170, 53 S. Ct. 55, 64 (1932).

The notice requirement of Rule 413 is aimed at insuring that defendants will not be

deprived of counsel during that period. The committee comments appended to Rule 413

suggest that such is the rationale. See also People v. Davis, 106 Ill. App. 3d 260, 262

(1982). Clearly, at the time the State executed the search warrant here, Rule 413 applied

and the State should have given timely notice and provided counsel with the opportunity to

be present at the photographing session.

       In People v. Treece, 159 Ill. App. 3d 397 (1987), we held that the State properly

obtained a blood sample from the defendant in compliance with Rule 413(a)(vii), although it

had not obtained a search warrant, which the defendant argued was necessary. Citing

People v. Jones, 30 Ill. App. 3d 562, 564 (1975), we observed that Rule 413(a)(vii) can be

used following indictment or information to obtain a blood sample from a defendant, without

resort to a search warrant. Jones held that, where probable cause is shown to justify an

order for a blood sample, an order under Rule 413(a) is, in essence, the same as a search

warrant, and the defendant's right against unreasonable search and seizure is well

protected. We further noted that, in People v. Turner, 56 Ill. 2d 201, 208 (1973), our

supreme court upheld the grant of a motion requiring the defendant to permit a blood

sample to be taken. In that case, the blood sample was taken prior to the adoption of Rule

413; however, the court held that the procedure followed had "provided adequate

safeguards of defendant's rights." In Treece, we concluded that, where probable cause is

shown to justify a court order pursuant to Rule 413(a)(vii) requiring an accused to submit to




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the withdrawal of blood and other body materials, no warrant is required. Treece, 159 Ill.

App. 3d at 408.

       In People v. Nichols, 63 Ill. 2d 443 (1976), the defendants were taken from their cells

and photographed one evening during the course of jury selection. The defense attorneys

were not notified of the photographing and were not present when it occurred. Although

Rule 413 was not in effect then, the supreme court held that the State's behavior

constituted an improper interference with the defendants' right to counsel. Nichols, 63 Ill.

2d at 449.

       In support of its argument, the State relies on State v. Carter, 185 N.J. Super. 576,

449 A.2d 1362 (1982), wherein the court held that a postindictment photographic lineup,

held without the presence of the defendant's attorney, did not violate the defendant's sixth

amendment rights. The court acknowledged the Supreme Court's holding that an accused

is entitled to counsel at any critical stage of the prosecution, that a postindictment physical

lineup is such a critical stage, and that the failure to inform counsel requires the exclusion

of evidence of such identification. Carter, 185 N.J. Super. at 579, 449 A.2d at 1364, citing

United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). However,

the court noted the substantially significant distinction between a physical lineup and a

photographic display, where an accused would not be foreclosed at trial from an effective

cross-examination of an identification witness simply because his counsel was not present

at the photographic display. Carter, 185 N.J. Super. at 579, 449 A.2d at 1364-65.

       The present case does not involve a photographic display containing a picture of the

accused for the purpose of allowing a witness to attempt identification of the offender in the

absence of counsel. This case involves the taking of physical evidence from the accused


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in the absence of counsel. Here, unlike in Carter, Rule 413 required that counsel be given

the opportunity to render assistance and to counterbalance any overreaching by the

prosecution.

       Based on the cases cited, we conclude that, in cases such as the present one, the

State must comply with the supreme court criminal discovery rules. Although both the

search warrant statute and the rule authorize evidence gathering and require a judge to find

probable cause before the authorization is granted, if the State obtains a search warrant for

the purpose of gathering the type of evidence enumerated in Rule 413(a) after the accused

has been formally charged with a felony, the State must comply with the additional

requirements set forth in Rule 413(b) of notice and the right of counsel to be present. Rule

413 was applicable here, and the State failed to comply with its requirements.

                                              III

       Alternatively, the State contends that if Rule 413 was violated, the trial court abused

its discretion in preventing the State from presenting at trial the photos or testimony of

those involved in the photographing session. However, the trial court will allow evidence

regarding defendant's circumcision if it did not come from the execution of the search

warrant.

       Supreme Court Rule 415(g)(i) (134 Ill. 2d R. 415(g)(i)) permits the trial court to

exclude evidence obtained in violation of a discovery rule. The purposes of the discovery

rules are to prevent surprise or unfair advantage by either party and to aid in the search for

truth. People v. Brooks, 277 Ill. App. 3d 392, 397 (1996). Sanctions are intended to

accomplish the purposes of discovery, not to punish the offending party, and the imposition

thereof should not encroach on a party's right to a fair trial. People v. Houser, 305 Ill. App.


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3d 384, 390 (1999). Further, sanctions should be fashioned to meet the circumstances of

the particular case. People v. Damico, 309 Ill. App. 3d 203, 212 (1999). The determination

as to an appropriate sanction for a discovery violation lies within the sound discretion of the

trial court and will not be disturbed absent an abuse of that discretion. People v. Mullen,

313 Ill. App. 3d 718, 736 (2000).

       Illinois courts have stated that the sanction of excluding certain evidence is

disfavored because it does not contribute to the goal of truth-seeking (People v. Hawkins,

235 Ill. App. 3d 39, 41 (1992)), and it is appropriate in only the most extreme situations

(Houser, 305 Ill. App. 3d at 390). A trial court order excluding evidence as a sanction for a

discovery violation will be closely scrutinized on appeal. People v. Scott, 339 Ill. App. 3d

565, 573 (2003).

       The State contends that, since it is entitled pursuant to Rules 413 (a)(iv) and (a)(ix)

to have either photographs or a medical examination of defendant, the trial court abused its

discretion by imposing a sanction on the prosecution merely for choosing the wrong

procedure.    The State asserts that it did nothing untoward and did not attempt to

circumvent the rules, the trial court, or opposing counsel. It also asserts that little prejudice

will result to defendant if the photographs are admitted, due to the nature of the evidence.

Further, the State maintains that the rules of criminal discovery are aimed toward the truth-

seeking process, as well as avoiding "trial by ambush" (see Scott, 339 Ill. App. 3d at 571),

and that the prosecutor's actions here were wholly consistent with the purpose and spirit

underlying the rules.

       In choosing a sanction, the trial court must evaluate the strength of the evidence

involved, the likelihood that compliance with the rule would have helped the defense


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discredit the evidence, and the willfulness of the State's violation. People v. Heinzmann,

232 Ill. App. 3d 557, 560 (1992). Here, proof that defendant is circumcised would not

provide meaningful corroboration for the victim's claim that he and defendant touched each

other's penises. The ultimate fact question is whether defendant and the victim engaged in

sexual conduct. Moreover, as defendant points out, the victim stated that he and defendant

had known each other approximately three years before the charges were brought and had

developed a father-son type of relationship. Because the victim frequently spent time with

defendant and defendant's family, he might have had an opportunity to see defendant

under circumstances that had nothing to do with sexual conduct. Additionally, circumcision

is not an unusual or distinguishing feature in today's society. Thus, while proof that

defendant is not circumcised might undermine the State's case, proof that defendant is

circumcised will not support an inference of guilt.

       Furthermore, the trial judge did not ban all proofs regarding defendant's circumcised

state. She merely prohibited the State from using the photos or testimony from those

involved in the execution of the warrant. Other evidence of the circumcision still can be

presented at trial, including testimony from the victim and defendant's wife, hospital records

made at the time of defendant's birth, or even a stipulation from defendant.

       In addition, while the State claims that its choice to obtain a search warrant from a

judge other than the presiding judge "clearly was not an attempt to try to do something

'sneaky' in order to circumvent the criminal discovery rules," we question the State's

intentions. The State obtained the search warrant from a judge other than the one it knew

was assigned to the case. The State also should have been aware of the applicable

discovery rules, as defendant had been indicted.


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       We further question Investigator Pleasant's intentions. He averred that he had

numerous years of experience specializing in child sexual abuse cases, yet, he failed to ask

the prosecutor whether it was permissible to take the complaint for warrant to a judge other

than the presiding judge. He also claimed under oath that he informed Judge Ceckowski

that this case was pending before Judge Rossetti, but Judge Rossetti's account of her

conversation with Judge Ceckowski contradicts his claim.

       We agree with defendant that the photo session was inherently intrusive, degrading,

and humiliating. Pleasant admitted during the hearing that, at one point in the session,

defendant told him that he had been embarrassed enough and pulled up his pants, only to

be threatened with force if he did not allow more photos to be taken. Pleasant also

admitted that, upon being threatened, defendant asked to talk to his attorney. However,

Pleasant did not stop the session and call defense counsel. Instead, he told defendant that

counsel "was being made aware" of the photo session, thereby insinuating that counsel

knew what was happening and approved of it, which was not the case.

       When a violation is a failure to disclose information in a timely fashion, a recess or a

continuance is the preferred sanction, as it protects the injured party from the

consequences of surprise or prejudice. People v. Leon, 306 Ill. App. 3d 707, 713 (1999).

Here, however, defendant was prejudiced by the State's actions, and such other possible

sanctions simply were not appropriate or were no longer feasible to cure the error. A

display of the photos at trial, rather than a presentation of other witnesses' testimony or a

stipulation, which the trial court did not suppress, would be a far more startling and

inherently inflammatory way to prove that defendant is circumcised. Accordingly, we find

that the trial court did not abuse its discretion.

                                               IV

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       The State last contends that the trial court erred in denying its motion, pursuant to

Rule 413, to take photos of defendant's penis or have medical personnel examine

defendant to determine if he is circumcised. Defendant counters that this issue is beyond

the scope of the State's notice of appeal and its certificate of impairment and that,

therefore, we lack jurisdiction to address it. Indeed, the State does not specify in its notice

of appeal or in the certificate of impairment that it is appealing the order denying the

motion.

       Even if the State had specified the motion in the notice of appeal or in the certificate

of impairment, we still could not address the State's final issue. As we stated above, when

the State takes issue with a nonfinal order entered by a trial court in a criminal case, the

threshold question of whether that order is appealable is determined by Rule 604(a)(1).

The trial court did not suppress evidence in denying the State's motion; it simply denied the

motion. Nor did the trial court's order fall under any of the other grounds in Rule 604(a)(1).

Official Reports Advance Sheet No. 2 (January 18, 2006), R. 604(a)(1), eff. December 13, 2005.

Thus, the State may not appeal from that order.           Based on the foregoing, the

judgment of the circuit court of Lake County is affirmed.

       Affirmed.

       GROMETER, P.J., and KAPALA, J., concur.




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