Appeal from the Circuit Court of Lake County, the Hon. Harry
D. Hartel, Jr., Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
In this case, which is a sequel to People ex rel. Illinois Judicial Inquiry Board v. Hartel (1978), 72 Ill.2d 225 (referred to herein as Alfano I), the State appealed to the appellate court from a judgment of the circuit court of Lake County purporting to acquit the defendant, Charles A. Alfano, an associate judge of the circuit court of Cook County, after a bench trial on charges that he had committed battery and obstructed a police officer in the performance of his duties, both of which offenses are misdemeanors under the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 12-3, 31-1). We granted a motion by the State for a direct appeal to this court under Rule 302(b). A motion by the Illinois Judicial Inquiry Board (the Board) for leave to file a brief amicus curiae was denied. In its order allowing a direct appeal this court directed the parties to address the question of appealability.
The judgment of the trial court followed rulings in which the court struck the testimony of the witnesses for the State. The defendant contends that the judgment is not appealable in view of article VI, section 6, of the 1970 Illinois Constitution, which provides: "[a]fter a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal." The determination of appealability depends in part upon how the judgment below is characterized, so that the question of appealability is closely intertwined with the consideration of the merits, and a somewhat detailed account of the proceedings thus becomes necessary in order to understand fully the issues which are before us.
The offenses with which the defendant was charged took place on September 5, 1977, while Richard M. Whitmore, a detective with the Lake County sheriff's office, was serving the defendant's son and another juvenile with traffic citations in response to a complaint from neighbors about their riding of motorcycles. Whitmore was sitting in his car at the time, and the defendant allegedly reached in and struck him on the arm. It was also charged that after the altercation with Whitmore the defendant tried unsuccessfully to persuade Whitmore not to arrest him. Whitmore swore out a complaint, and the defendant was arrested that same day.
The incident took place in a subdivision near the defendant's summer home in the vicinity of Antioch, and it attracted the attention of a number of nearby residents, some of whom witnessed it. Shortly after the defendant's arrest, independent investigations into the incident were begun by the sheriff's office, by counsel retained by the defendant, and by personnel from the Board.
On October 4 the trial court granted a motion by the defendant that the State be directed to furnish the names of persons whom it intended to call as witnesses at the trial. In response to this request the State furnished a list of 14 persons, which included Officer Whitmore, a second officer named James H. Donaldson, and Philip and Rosebud Sunich, private citizens who had been eyewitnesses. The State also furnished various police reports of the incident. No question is raised here as to this pretrial discovery.
On November 30 the defendant filed a motion requesting that the Board be required to produce its files relating to the incident, and he also served a subpoena duces tecum on the Board's chairman. On December 14 the court denied the Board's motion to quash the subpoena, and issued an order that the Board produce at the time of trial "[a]ll written statements, and oral statements reduced to writing which are verbatim or substantially verbatim made by any person named on the state's list of witnesses." The order also provided: "The statements of any witness who testifies at the trial shall be made available to the defense upon the conclusion of the witnesses' direct testimony for the use of the defendant for impeachment purposes, if any."
The order required the Board to produce for inspection by the court "all evidence obtained by the Board during the Board's investigation of the conduct of the defendant in its investigation of the incident leading to the criminal charge before the court." The order continued "the court shall examine the evidence [and] it shall, excluding any work products and excluding the disclosure of any informant whose identity is a prosecution secret, deliver to the defendant any evidence which tends to negate the defendant's guilt or which is of an exculpatory nature."
It was at this juncture that the Board instituted the proceedings in Alfano I, in which this court awarded a writ of mandamus directing the trial judge to expunge his order of December 14.
After this case had resumed in the trial court and the trial judge had expunged his order, the defendant served a new subpoena upon the Board. This second subpoena was drawn more narrowly than its predecessor. It called for materials which fell into three categories, the first of which was designed to comply with the "plurality opinion" in Alfano I:
1. All documents and memoranda which plainly negate the defendant's guilt.
2. All documents or memoranda which contain statements that are inconsistent with, or contrary to the statements given to the police or the State's Attorney's investigators which are attached to the subpoena as exhibit 1. (Exhibit 1 contained 48 pages of reports on interviews with witnesses.)
3. All documents or memoranda which contain statements that are inconsistent with, or contrary to statements given to the Board by 21 named individuals, including Officer Whitmore and Philip and Rosebud Sunich, each of whom was included in the amended list of intended witnesses which the State had given to the defendant. (A second officer, James H. Donaldson, had also been ...