                               No. 2-09-0925   Filed: 12-20-10
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 07--CF--745
                                       )
CARL VOLTAIRE,                         ) Honorable
                                       ) T. Jordan Gallagher,
      Defendant-Appellee.              ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BURKE delivered the opinion of the court:

       An indictment charged defendant, Carl Voltaire, with unlawful delivery of a controlled

substance (720 ILCS 570/401(a)(2)(A) (West 2006)) and unlawful possession of a controlled

substance (720 ILCS 570/402(a)(2)(A) (West 2006)). Sometime during the lengthy pretrial delays,

the parties learned that the substance in question had been destroyed. Defendant moved to dismiss

the charges, arguing that the destruction of the substance deprived him of due process. The trial

court granted the motion. The State appeals, contending that under Illinois v. Fisher, 540 U.S. 544,

157 L. Ed. 2d 1060, 124 S. Ct. 1200 (2004), the inadvertent destruction of the evidence did not

deprive defendant of due process. We reverse and remand.

       Defendant was indicted in March 2007. Shortly thereafter, defense counsel filed a standard

discovery request seeking, among other things, any "books, papers, documents, photographs or
No. 2--09--0925


tangible objects" that the State intended to use at trial. Laboratory reports were tendered in

September 2007. Sometime in 2008, defendant obtained new counsel.

       In June 2009, the prosecution filed its discovery response, disclosing for the first time that

the evidence, including the alleged controlled substance, had been inadvertently destroyed when a

codefendant's case was concluded. Defendant moved to dismiss the charges on due process grounds.

He argued that People v. Newberry, 166 Ill. 2d 310 (1995), mandated dismissal of charges where the

State destroyed evidence that was "outcome-determinative," even where the destruction was in good

faith. The State responded that Newberry was based on federal due process grounds and that Fisher

superseded Newberry's due process analysis.

       The trial court dismissed the charges, holding that it was bound by Newberry. The State

timely appeals.

       In this court, the State renews its argument that Fisher implicitly overruled Newberry and

that, under Fisher, no due process violation occurred. Defendant responds that Fisher declined to

expressly overrule Newberry, that Newberry had an adequate state-law basis for its holding, and that,

in any event, the Illinois Supreme Court does not invariably follow lockstep with the United States

Supreme Court on federal constitutional questions.

       The issue thus is whether Fisher or Newberry governs. To fully understand this issue, we

review a quartet of cases involving a state's destruction of evidence prior to trial. In California v.

Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984), defendants charged with driving

under the influence unsuccessfully sought to suppress breath-analysis test results on the ground that

the police failed to preserve the breath samples, thereby limiting the defendants' ability to challenge

the incriminating test results. The state appellate court set aside their convictions, holding that due

process demanded that the arresting officers preserve the breath samples, but the Supreme Court

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reversed. The Court reasoned that due process was not violated, because the police had acted in

good faith and in accord with normal procedures when they failed to preserve the samples, and the

testing device's high degree of accuracy made it extremely unlikely that further testing of the samples

would have helped the defense. Trombetta, 467 U.S. at 488-89, 81 L. Ed. 2d at 422, 104 S. Ct. at

2534.

        In Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), the

defendant, who was charged with child molestation, sexual assault, and kidnaping, claimed that his

due process rights were violated because the State failed to promptly test samples found on the

victim's clothing or to properly refrigerate the clothing so that it could be properly tested later. In

rejecting this claim, the Supreme Court held, as it had in the past, that the good or bad faith of the

State is irrelevant when the State fails to disclose to the defendant exculpatory evidence that is

material. The Court concluded, however, that the due process clause requires a different result when

no more could be said of the evidence "than that it could have been subjected to tests, the results of

which might have exonerated the defendant." Youngblood, 488 U.S. at 57, 102 L. Ed. 2d at 289, 109

S. Ct. at 337.

        According to the Court, police do not have "an undifferentiated and absolute duty to retain

and to preserve all material that might be of conceivable evidentiary significance in a particular

prosecution." Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. Where the

evidentiary material is only "potentially useful," the failure to preserve that material does not

constitute a denial of due process unless a criminal defendant can show bad faith on the part of the

police. Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.

        Newberry held that the case was "markedly different" from Youngblood. Newberry, 166 Ill.

2d at 315. The evidence in Newberry was more than just " 'potentially useful' "; it was outcome-


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determinative. Newberry, 166 Ill. 2d at 315. Moreover, the defendant had no "realistic hope of

exonerating himself absent the opportunity to have [the evidence] examined by his own experts."

Newberry, 166 Ill. 2d at 315. Thus, dismissal of the charges was the only appropriate remedy, even

though there was no evidence of the State's bad faith. Newberry, 166 Ill. 2d at 317.

        In Fisher, the defendant was charged with cocaine possession. He skipped bail and remained

a fugitive for 10 years. By the time he returned, the alleged cocaine had been destroyed. However,

lab tests had concluded that it was, in fact, cocaine. The trial court dismissed the charge on due

process grounds and the appellate court, citing Newberry, affirmed. See Fisher, 540 U.S. at 546-47,

157 L. Ed. 2d at 1065, 124 S. Ct. at 1201. The supreme court denied leave to appeal but the Supreme

Court granted certiorari and reversed.

        The Court held that the "substance seized from respondent was plainly the sort of 'potentially

useful evidence' referred to in Youngblood ***. At most, respondent could hope that, had the

evidence been preserved, a fifth test conducted on the substance would have exonerated him."

(Emphasis in original.) Fisher, 540 U.S. at 548, 157 L. Ed. 2d at 1066, 124 S. Ct. at 1202. The

Court further held that Youngblood applies even where the evidence offers a defendant's sole hope

for exoneration and is essentially outcome-determinative. Fisher, 540 U.S. at 548, 157 L. Ed. 2d at

1066, 124 S. Ct. at 1202.

        In the present case, defendant did not argue nor did the trial court find that the evidence was

exculpatory. While defendant argued that the police acted in bad faith, the trial court specifically

found that there was no indication of bad faith on anyone's part. On appeal, defendant does not

contest this finding or argue bad faith as an alternative basis for us to affirm. We see no reason to

disturb the trial court's finding on this point.




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        The court below simply applied Newberry<s outcome-determinative test in finding a due

process violation. Therefore, if we follow Fisher, as the State urges, we are bound to reverse the trial

court<s ruling as a matter of law. See People v. Blaylock, 311 Ill. App. 3d 399, 404 (2000) (finding

that the standard of review regarding a court<s ruling on a motion to dismiss an indictment on the

basis of lost or missing evidence is whether the trial judge was correct as a matter of law).

        The State contends that Newberry rested, at bottom, on federal due process concerns and that

Fisher rejected Newberry's central holding that due process requires dismissal when the State

inadvertently destroys evidence that is outcome-determinative. The State further contends that the

supreme court generally follows the lockstep approach, i.e., deferring to the Supreme Court's analysis

of constitutional issues. The State cites People v. Kizer, 365 Ill. App. 3d 949 (2006), in which the

Fourth District confronted the issue we face here.

        In Kizer, the defendant was charged with possessing a controlled substance, but the State

inadvertently destroyed the substance before the defendant could independently test it. The Fourth

District predicted that the supreme court would follow lockstep and abandon Newberry in favor of

Fisher. The Kizer court listed four reasons for its conclusion. First, it noted that Newberry had not

distinguished between the federal and state constitutions, and thus there was no reason to think that

the court intended to interpret the Illinois Constitution's due process provision differently than its

federal counterpart. Kizer, 365 Ill. App. 3d at 960-61. Second, the supreme court had already

declined an invitation to interpret the Illinois Constitution's due process provision more broadly than

its federal counterpart. Kizer, 365 Ill. App. 3d at 961, citing People v. Pecoraro, 175 Ill. 2d 294, 318

(1997). Third, Fisher merely clarified Youngblood, which the supreme court had repeatedly

followed. Kizer, 365 Ill. App. 3d at 961. Finally, the supreme court had recently reaffirmed its




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No. 2--09--0925


commitment to the limited lockstep approach. Kizer, 365 Ill. App. 3d at 961, citing People v.

Caballes, 221 Ill. 2d 282, 313 (2006).

        We agree with Kizer that, if confronted with the issue, the supreme court would follow

Fisher. Newberry appears to be nothing more than an application of Trombetta and Youngblood,

and the Supreme Court has now clarified that the application of those cases to this situation

contradicts the holding in Newberry.

        Citing Justice Stevens' concurrence in Fisher, defendant notes that the Supreme Court did

not explicitly overrule Newberry and suggests that this is because Newberry rested on an adequate

state-law basis. See Fisher, 540 U.S. at 549-50, 157 L. Ed. 2d at 1067, 124 S. Ct. at 1203 (Stevens,

J., concurring). We disagree. As noted, Newberry does not specifically mention the Illinois

Constitution. See Ill. Const. 1970, art. I, §2. The only state-law basis that Newberry specifically

mentions is that the dismissal could have been upheld as a discovery sanction under Supreme Court

Rule 415(g). Newberry, 166 Ill. 2d at 317-18, citing 134 Ill. 2d R. 415(g). We note that recently,

in People v. Kladis, 403 Ill. App. 3d 99 (2010), the First District declined to reach the issue presented

here and held that dismissal of the charges was warranted as a discovery sanction.

        Here, however, the trial court expressly declined to impose a discovery sanction and

defendant does not argue that the dismissal should be affirmed on that basis. Generally, a trial court

has considerable discretion in imposing a discovery sanction (People v. Patel, 366 Ill. App. 3d 255,

272-73 (2006)), and although we may affirm an order on any basis appearing in the record (Material

Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983)), we decline to do so here. The

trial court explicitly did not impose a discovery sanction, finding that the State acted in good faith.

To affirm the dismissal on this basis would amount to holding that the trial court abused its



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discretion by not imposing a discovery sanction. We cannot so find, particularly where defendant

has not so argued.

        Defendant further contends that the supreme court does not invariably follow lockstep and

might decline to do so here. However, that court has traditionally refused to depart from lockstep

absent some " 'language of our constitution, or in the debates and the committee reports of the

constitutional convention' " (Caballes, 221 Ill. 2d at 310, quoting People v. Tisler, 103 Ill. 2d 226,

245 (1984)) or some countervailing "state tradition and values as reflected by long-standing state

case precedent" (Caballes, 221 Ill. 2d at 314). See Kizer, 365 Ill. App. 3d at 961. Defendant cites

no language in the state constitution or debates, and no longstanding case precedent, to suggest that

the supreme court would not follow lockstep on this issue.

        Again citing Justice Stevens' concurrence, defendant points to numerous cases from sister

states that have held that defendants could establish due process violations under their state

constitutions even in the absence of bad faith. Fisher, 540 U.S. at 549-50 n.*, 157 L. Ed. 2d at 1067

n.*, 124 S. Ct. at 1203 n.* (Stevens, J., concurring), quoting State v. Morales, 232 Conn. 707, 723,

657 A.2d 585, 593 (1995) (" '[f]airness dictates that when a person's liberty is at stake, the sole fact

of whether the police or another state official acted in good or bad faith in failing to preserve

evidence cannot be determinative of whether the criminal defendant received due process of law' ").

Of course, Youngblood never said that the only relevant consideration was state actors' good or bad

faith. Rather, Youngblood focused on what it deemed to be the central concern, the potential

usefulness of the evidence to the defense. We note that Justice Stevens concurred in the result in

Fisher, which held that the evidence was not critical to the defense because in all likelihood it would

have been inculpatory.




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        At this juncture, we note a significant factual distinction between Newberry and Fisher. In

Newberry, a field test was negative, but a later lab test revealed cocaine. Newberry, 166 Ill. 2d at

312. While field tests are not as reliable as lab tests (see Newberry, 166 Ill. 2d at 317), Newberry

at least could show that two tests performed by the State had yielded different results. There was

thus some reason to think that a third test to "break the tie" would have been critical. The Fisher

Court, by contrast, emphasized that four separate tests had all concluded that the substance was

cocaine. Fisher, 540 U.S. at 548, 157 L. Ed. 2d at 1066, 124 S. Ct. at 1202. Here, the record does

not demonstrate that different tests of the substance produced different results, and defendant does

not suggest any other reason that the test results were unreliable.

        Finally, defendant argues that in People v. Sutherland, 223 Ill. 2d 187 (2006),1 the supreme

court "had an opportunity" to overrule Newberry but did not. However, the Sutherland court had no

reason to overrule Newberry, as it held that the defendant's claim failed under Newberry. Sutherland,

223 Ill. 2d at 240.

        Based on the foregoing, we find that the Fisher due process analysis applies to the destruction

of evidence in this case and that as a matter of law a due process violation was not established.

        The judgment of the circuit court of Kane County is reversed, and the cause is remanded for

further proceedings.

        Reversed and remanded.

        ZENOFF and SCHOSTOK, JJ., concur.




        1
            Defendant incorrectly cites an earlier opinion in the same case that predated Fisher and did
not discuss the destruction-of-evidence issue.

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