Appeal from the Circuit Court of Kane County; the Hon. Michael
O'Brien, Judge, presiding.
JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
Defendant, Archie Lee Johnson, was charged by information with the offense of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a)). After an initial mistrial, a second jury was impaneled, and trial commenced.
During a recess following the testimony of two of the State's witnesses, the State informed the court that defense counsel intended to make a motion to preclude the State from introducing testimony of Nick Garris, the owner of Grove's Liquors, that defendant had not been in Grove's Liquors on the night in question. Garris' testimony was to be proffered by the State following the testimony of a police officer that defendant had told him that, on the night of the burglary, he (the defendant) was at Grove's Liquors. The State further stated that the motion would be untimely and prejudicial, since the State's Attorney had discussed the testimony in his opening statement. Defense counsel, in substance, advised the court that he was making such motion. A brief argument was had on the motion, and the court continued the hearing on the motion to the following day.
At that time, the court heard extensive argument from counsel. In his argument, defense counsel contended that Garris' testimony was not relevant except as rebuttal evidence in the event that the defendant testified. The State's Attorney argued that the evidence was properly admissible as a false exculpatory statement to show consciousness of guilt on the part of the defendant and its admission should not be limited to rebuttal.
The trial court granted defendant's motion and ruled that the court would "not permit testimony from a third party concerning the whereabouts of the defendant in the absence of the defendant taking the stand in the proceedings." The State, thereupon, indicated its intent to take an interlocutory appeal and moved for a mistrial. The defendant, contending that a mistrial was not the proper remedy for an adverse ruling made during trial, objected, and the trial judge agreed and denied the State's motion for a mistrial. However, upon being advised by the State that it would file a certificate of impairment as required by People v. Flatt (1980), 82 Ill.2d 250, and People v. Young (1980), 82 Ill.2d 234, the trial court granted, over defendant's objection, the State's motion for leave to take an interlocutory appeal pursuant to Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)) and discharged the jury. Thereafter, the State filed its notice of interlocutory appeal.
On appeal, the State contends that the trial court erred both in entertaining and in granting what the State characterized as the "defendant's midtrial motion to suppress evidence."
The initial question which this court must consider on appeal, however, is whether the State may appeal from a ruling, entered during the trial, sustaining defendant's objection to evidence of his false exculpatory statement. In a criminal case the State may appeal only as permitted by Supreme Court Rule 604(a). (87 Ill.2d R. 604(a); People v. Montaigne (1980), 86 Ill. App.3d 220.) Supreme Court Rule 604(a)(1) permits the State to bring an appeal from an order "the substantive effect of which results in * * * suppressing evidence." (87 Ill.2d R. 604(a)(1).) Stated differently, the issue before this court is whether the trial court's ruling here was, in fact, an order "suppressing evidence" as that term is used in Supreme Court Rule 604.
The extent of the State's right to appeal in criminal cases has been expanded greatly. (People v. Young (1980), 82 Ill.2d 234, 238.) While the bare language of Supreme Court Rule 604(a)(1) appears to allow the State to appeal any order precluding the admission of evidence, such an interpretation, at least in the past, has been rejected uniformly by the courts>. (See 82 Ill.2d 234, 239.) As observed by our supreme court in People v. Young (1980), 82 Ill.2d 234, 241-42, several appellate court decisions construed People v. Van De Rostyne (1976), 63 Ill.2d 364, to preclude appeal from orders excluding evidence on grounds other than the illegality of the search and seizure or the involuntariness of a confession. However, Van De Rostyne was qualified by People v. Young, which held that the State's right to bring an interlocutory appeal was not limited solely to suppressions based on the illegality of a search and seizure or the involuntariness of a confession.
• 1 While Young involved an appeal from a pretrial suppression order, as distinguished from an order entered during the course of the trial as was the case here, People v. Flatt (1980), 82 Ill.2d 250, addressed the problem in a case involving a midtrial order. According to Flatt, the State may seek review on the merits of a midtrial suppression order where the order granted a defense motion to suppress evidence on the grounds that it was obtained illegally. If, however, the defendant's motion did not allege that the evidence was obtained illegally and the trial court granted the motion, the State could seek review of the court's authority to entertain the motion during trial. In such a case, though, the merits of the trial court's ruling would not be considered. People v. Flatt (1980), 82 Ill.2d 250, 263-64; People v. Tomasello (1981), 98 Ill. App.3d 588, 597-98; see Ill. Rev. Stat. 1981, ch. 38, pars. 114-11(g), 114-12(c).
This distinction was made because, at common law, the defendant was required to object before trial to illegally obtained evidence. This rule was relaxed by statutory provisions permitting defense motions to suppress to be made during trial so long as the grounds for the motion were that the evidence had been obtained illegally and the motion could not have been made prior to trial. (82 Ill.2d 250, 262; see Ill. Rev. Stat. 1981, ch. 38, pars. 114-11(g), 114-12(c).) *fn1 Since the trial court was thus authorized to entertain a midtrial motion only where the motion sought the suppression of illegally obtained evidence, the State's right to appeal on the merits was limited to orders entered after such a motion. People v. Flatt (1980), 82 Ill.2d 250, 262-63.
However, recognizing the need to permit some review of erroneous orders granting motions which should have been made prior to trial, the court in Flatt held that the State could seek review of the court's authority to enter such an order even if the suppression was not based on the illegality of the method by which the evidence was obtained. (82 Ill.2d 250, 264.) In such a case, the reviewing court would consider only the trial court's authority to entertain the motion during trial and would not consider the merits of the ruling. 82 Ill.2d 250, 264; see People v. Tomasello (1981), 98 Ill. App.3d 588.
The problem is in defining what constitutes an order of suppression. (See People v. Flatt (1980), 82 Ill.2d 250, 258; People v. Tomasello (1981), 98 Ill. App.3d 588, 597.) Cases preceding Flatt had noted that only suppression orders, as opposed to mere evidentiary rulings, could be the subject of an interlocutory State appeal and that suppression orders, within the meaning of Supreme Court Rule 604(a)(1), were those which suppressed evidence because it was illegally obtained. (E.g., People v. Montgomery (1980), 84 Ill. App.3d 695; People v. Young (1978), 60 Ill. App.3d 49, cert. denied (1979), 440 U.S. 973, 59 L.Ed.2d 790, 99 S.Ct. 1539; People v. Macaluso (1976), 36 Ill. App.3d 592.) However, in People v. Young (1980), 82 Ill.2d 234, our supreme court stated that "suppressed evidence" is to have a broader meaning than evidence which is illegally obtained. (People v. Phipps (1980), 83 Ill.2d 87, 91.) Since the appeal of a suppression order can no longer be resolved merely on the basis of whether the evidence was excluded because it was obtained illegally, the line which separates an evidentiary ruling from a suppression order has become blurred. See 82 Ill.2d 250.
• 2 In the context of pretrial orders, the State's right to bring an interlocutory appeal has been construed broadly. (See People v. Wallace (1982), 106 Ill. App.3d 567, 568-69; People v. Kite (1981), 97 Ill. App.3d 817, 822-23.) Our supreme court has said that such an order which operates to prevent evidence from being admitted is one which suppresses evidence. People v. Phipps (1980), 83 Ill.2d 87, 90-91.
However, there are obvious and significant differences between pretrial appeals and appeals brought during trial. Interlocutory appeals necessarily prolong trials, but one which interrupts an ongoing trial exposes the defendant to additional strain and expense inherent in recommencing a case after the appeal has been determined. Moreover, the scope of interlocutory appeals affects the orderly functioning of the judicial system. To the extent that interlocutory appeals are allowed the trial process will be disrupted, but the degree of ...