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01/28/87 the People of the State of v. David Shukovsky

January 28, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

DAVID SHUKOVSKY, DEFENDANT-APPELLEE (MATTHEW CHANCEY, ASSISTANT STATE'S ATTORNEY, CONTEMNOR-APPELLANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

503 N.E.2d 863, 151 Ill. App. 3d 966, 105 Ill. Dec. 23 1987.IL.72

Appeal from the Circuit Court of Lake County; the Hon. John Goshgarian, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. HOPF and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

This is an appeal from the circuit court of Lake County consolidating an appeal by the State from the trial court's order which dismissed the charges against defendant, David Shukovky, on speedy-trial grounds, with an appeal by the assistant State's Attorney from an order of contempt entered against him during the course of the pretrial proceedings involving the defendant.

The defendant, David Shukovky, was charged with the battery of Andrea Shukovky. The defendant sought to have certain materials in the possession of the State turned over by causing a subpoena duces tecum to issue. The subpoena was directed to Laura Notson, a social worker employed by the State's Attorney's office. Following a hearing on the State's motion to quash the subpoena, the court denied the motion. The assistant State's Attorney, Matthew Chancey, refused to turn over the subpoenaed material and was held in contempt of court. He was fined $10. After timely notice of appeal was filed from that order, the trial court granted numerous continuances and charged them against the State for its failure to turn over the subpoenaed materials. Eventually, the defendant filed a petition for discharge due to a violation of speedy-trial mandates, and the trial court granted the discharge. The State filed a timely appeal from the order of discharge. This is a consolidation of those two appeals.

We first consider the appeal from the trial court's order finding Assistant State's Attorney Chancey in contempt. In so doing, we must initially consider a motion by counsel for the assistant State's Attorney, requesting that this court reconsider and strike its order designating the People of the State of Illinois as appellee and appointing the Attorney General to represent the appellee. We ordered this motion to be taken with the case.

On January 16, 1986, the People filed a motion to consolidate the contempt appeal with the appeal from the speedy-trial dismissal. On January 29, 1986, this court allowed the defendant to file objections instanter and allowed the People's motion to consolidate the two causes. On August 26, 1986, after appellate counsel for the assistant State's Attorney, the State's Attorney's appellate prosecutor, filed the appellant's brief, defendant made a motion asking that this court designate an appellee to defend against the contempt appeal. No objections were filed by the State's Attorney's appellate prosecutor, and on September 3, 1986, this court designated the People of the State of Illinois as appellee. This court further appointed the Attorney General to represent the appellee. The State's Attorney's appellate prosecutor then sought to have that order vacated, asserting that the Attorney General had taken a position directly antithetical to that taken by the People of the State of Illinois at the proceedings below and on appeal in their representation of the assistant State's Attorney. In other words, counsel for appellant has now asserted that there exists a conflict of interest in allowing the People of the State of Illinois to be designated as appellee, since the People are also designated as the appellant in the contempt appeal.

In Marcisz v. Marcisz (1976), 65 Ill. 2d 206, the Illinois Supreme Court held that the appellate court properly substituted the People as appellee in an appeal from a criminal contempt. In so holding, the court noted that criminal contempts could properly be prosecuted or defended on appeal by counsel for a litigant, the State's Attorney, or by an amicus curiae appointed by the court.

We are not inclined to reconsider our designation of the People as appellee at this late point. When counsel for defendant Shukovky moved this court to appoint an appellee, counsel for appellant had five days in which to file any objections. (103 Ill. 2d R. 361(b)(2).) Counsel for appellant did not file any objections. In fact, no objections were made to the court's designation of the People as appellee until nearly two months later, after appellant filed his brief and the Attorney General, as appointed counsel for the appellee, filed its brief in the appeal. Complaints regarding parties to an action will, under certain circumstances, be considered waived. (See Zelinski v. Security Lumber Co. (1985), 113 Ill. App. 3d 927, 938; Schroeder v. Meier-Templeton Associates, Inc. (1984), 130 Ill. App. 3d 554, 558.) To order the appellee stricken now would result in a further delay in the Disposition of the defendant's appeal in the consolidated case. Applying general waiver principles, we find that the State has waived this point by its failure to make a timely objection. (See Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 543; People v. Hall (1986), 145 Ill. App. 3d 873, 877.) We further note that appellant has couched this issue in terms of a conflict of interest in that the Attorney General has taken a position contrary to the position that the People took below. Even if this issue had been presented in a timely fashion, the appellant is not the proper party to be raising the question of the ability of the Attorney General to effectively represent the trial court. See Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 501.

We turn now to the assistant State's Attorney's contention that the trial court improperly held him in contempt of court for his failure to turn over material requested by the defendant in a pretrial subpoena duces tecum. A judgment of contempt imposing a fine or sentence of imprisonment is appealable, and it presents the reviewing court with the issue of the propriety of the order which has been violated. (People v. Verdone (1985), 107 Ill. 2d 25, 30.) It is the position of the assistant State's Attorney that the trial court erred by not quashing the subpoena duces tecum.

In order to require production of documents prior to a criminal trial, the party moving for the subpoena duces tecum must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (3) that the party cannot properly prepare for trial without the production and inspection of the documents in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not ...


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