Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. Stephen J. Covey, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1980.
This case involves the right of the State to appeal from an interlocutory order in a criminal case. Specifically, the question presented is whether the trial court order appealed from was an order "suppressing evidence" and, therefore, appealable by the State by virtue of our Rule 604(a)(1). (73 Ill.2d R. 604(a)(1).) A similar question is involved in People v. Young (1980), 82 Ill.2d 234, also decided today. In Young, however, the suppression order was entered before the trial had commenced. In our case, the suppression order was entered after the jury had been sworn to try the issues.
On August 30, 1977, the Peoria residence of Patricia Ring was broken into. According to an investigation conducted by the Peoria Police Department, the perpetrator had entered the house by kicking open a basement door. Several pictures from the kitchen were taken. Also, a large stained-glass window from the living room was removed from the premises. The leaded window had been pried from its casing after the protective plate-glass window was broken and removed. Latent fingerprints and palm prints were taken from the broken plate glass at the scene of the crime by Peoria Police Department Officer Gary Siebenthal. The glass was not taken into police custody and, presumably, it was later disposed of by Ring. In a Peoria Police Department laboratory report dated October 20, 1977, the latent palm print developed from the glass was positively identified by Officer Siebenthal as being defendant's left palm. Defendant was charged by a Peoria County grand jury indictment on December 6, 1977, with burglary in violation of section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 19-1(a)).
A public defender was appointed for the defendant on December 8, 1977, and the State was ordered to furnish discovery. In its answer for discovery dated December 9, 1977, the State represented, inter alia, that the tangible objects it intended to use at trial were available at the Peoria County State's Attorney's office. Due to a conflict of interest, the assistant public defender was granted leave to withdraw on February 20, 1978, and a private attorney, Ronald Halliday, was appointed by the court to represent the defendant. At some point thereafter, Halliday met with Officer Siebenthal and an assistant State's Attorney at the State's Attorney's office for the purpose of obtaining discovery of the physical evidence. The piece of glass from which the prints were lifted was not produced at that meeting. A pretrial conference was also held. The record does not indicate whether the discovery meeting was conducted prior to the pretrial conference. It is clear, however, that the trial judge was not informed during that conference that, as claimed by defendant, discovery was incomplete and that the glass should have been delivered. Instead, defense counsel announced his readiness for trial.
On March 9, 1978, the date of trial, defense counsel presented a motion to produce physical evidence, seeking the broken plate-glass window which allegedly contained the latent print of defendant's palm. According to the defense, the State's failure to produce the glass for defendant's independent examination violated defendant's constitutional right to confront material evidence presented against him. In view of the late date at which Halliday had been appointed to represent defendant, the State waived its right to challenge the timeliness of the motion. Following arguments by counsel, the trial court granted defendant's motion to produce. The State informed the court as to the possible unavailability of the glass, and the court indicated that such failure to produce the glass would result in a suppression of fingerprint evidence at the trial. The jury was then impaneled pursuant to the court's suggestion that the parties proceed with the case until the State determined whether the glass was available for discovery.
Immediately after the jury was sworn, the State advised the court that the glass was unavailable. A proceeding was conducted outside of the presence of the jury. The hearing was apparently held on the State's motion to reconsider the court's ruling granting defendant's motion to produce physical evidence. Officer Siebenthal was called by the State to testify as to the disposition of the plate glass. He stated that the plate-glass window measured 48 by 48 inches and that the piece of glass removed by the perpetrator in order to reach the stained-glass window was approximately one-half that size. He further stated that he lifted the latent prints on August 31, 1977, while the glass was at the scene of the crime; the glass was at no time transported to the Peoria Police Department. Leaving the large piece of glass at the scene was, according to the officer, consistent with departmental procedure followed in burglary cases in order to avoid congesting the department's property room. It was Officer Siebenthal's belief that the glass was subsequently disposed of by Ring. No other evidence was presented by either party. The court stood by its earlier ruling, stating that the failure to produce the glass would result in a deprivation of defendant's due process right to confront evidence presented against him. The court indicated that all fingerprint evidence would therefore be suppressed. The State advised the court that the only motion before the court was one to produce physical evidence. After much discussion among the attorneys and the court, it was agreed that defendant's attorney would file a motion in limine as a motion to suppress any fingerprint evidence. Noting that this motion was to be made during the trial and having been assured by the State that it would appeal, the court, in view of the procedures outlined in section 114-12(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-12(c)), discharged the jury. Thereafter defendant's motion in limine to suppress the fingerprint evidence was filed. An order was entered, dated March 16, 1978, granting defendant's motion and terminating the trial pursuant to the State's motion to file an interlocutory appeal. The appellate court, with one justice dissenting, reversed and remanded. (75 Ill. App.3d 930.) We granted defendant's petition for leave to appeal.
In this court, defendant asserts that the appellate court wrongfully entertained an appeal from the March 16, 1978, order. Citing People v. Van De Rostyne (1976), 63 Ill.2d 364, defendant contends that the order entered was not an order suppressing evidence under Rule 604(a)(1) (73 Ill.2d 604(a)(1)) since the evidence was neither obtained in an illegal search and seizure nor elicited in an involuntary confession. Citing People v. Alfano (1980), 78 Ill.2d 434, defendant argues in the alternative that the order was not an order of suppression since the evidence was not obtained in violation of the exclusionary rule. Thus, according to defendant, under either Van De Rostyne or Alfano, the order entered was an order excluding evidence from which the State may not be permitted to appeal by virtue of Supreme Court Rule 604(a)(1).
The Illinois Constitution of 1970 provides in article VI, section 6, that after a trial on the merits in a criminal case there shall be no appeal from a judgment of acquittal, and it further provides:
"The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts>." (Ill. Const. 1970, art. VI, sec. 6.)
Our Rule 604(a)(1) provides for appeals by the State in criminal cases:
"(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence." (Emphasis added.) (73 Ill.2d R. 604(a)(1).)
There has been considerable litigation concerning the nature of the rulings of the trial court that are appealable by the State under this rule, particularly as it relates to orders "suppressing evidence." In one line of cases, the courts> have stated that the appealability of such orders turns on whether the trial judge believes that the effect of his ruling will be to block the prosecution entirely. (People v. Shipp (1968), 96 Ill. App.2d 364, 366; People v. Koch (1973), 15 Ill. App.3d 386, 388.) (But see People v. Smith (1972), 5 Ill. App.3d 642, 643 (right to appeal does not require the State to show it would have insufficient evidence to proceed with the prosecution).) The test enunciated in this line of cases was expressly rejected in People v. Van De Rostyne (1976), 63 Ill.2d 364, 368. (See also People v. Lara (1976), 44 Ill. App.3d 116, 124.) In another line of cases, a distinction is made between orders suppressing evidence and mere evidentiary rulings. According to these cases, only the former are deemed to be ...