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08/17/94 PEOPLE STATE ILLINOIS v. CHARLES S.

August 17, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
CHARLES S. NEWBERRY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 91-CF-228. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication September 19, 1994. Petition for Leave to Appeal Allowed December 6, 1994.

McLAREN, Geiger, Doyle

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, Charles Newberry, was indicted in the circuit court of Kane County on a single count of unlawful possession of a look-alike substance with intent to distribute (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1404(b) (now 720 ILCS 570/404(b) (West 1992))). The charge was nol-prossed pursuant to a motion by the State, and the defendant was reindicted on different charges involving the same substance. The new indictments charged the defendant with two counts of unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401 (now 720 ILCS 570/401 (West 1992))) and one count of unlawful possession of a controlled substance without a controlled substance tax stamp (Ill. Rev. Stat. 1991, ch. 120, par. 2160 (now 35 ILCS 520/10 (West 1992))). Additional indictments were subsequently filed which charged the defendant with unlawful possession of a controlled substance with intent to deliver while on school property (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1407(b)(1) (now 720 ILCS 570/407(b)(1) (West 1992))) and unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(b) (now 720 ILCS 570/402 (West 1992))). The circuit court granted the defendant's motion to dismiss the indictments on the ground that the State's destruction of the alleged controlled substance violated the defendant's right to constitutional due process. Following the trial court's denial of the State's motion to reconsider, the State filed a timely certificate of impairment and notice of appeal. For the following reasons, we affirm.

The relevant facts are undisputed. In January 1991, the defendantwas charged with possession of a look-alike substance with intent to distribute. A field test of the substance was negative for the presence of a controlled substance. A subsequent laboratory test, conducted approximately one month following the defendant's arrest, revealed the presence of cocaine. On February 19, 1992, the defendant was indicted for, among other related charges, possession of a controlled substance with intent to deliver. Approximately 10 days later, the look-alike substance charge was nol-prossed.

On April 2, 1992, the defendant filed a general motion for discovery which requested:

"7. A list of, and an opportunity to examine and photocopy any books, papers, documents, photographs, or tangible objects which the prosecution intends to use in the hearing or trial or which were obtained from or belonged to the accused."

The State responded to the motion by stating that all white powdery substances obtained from the defendant may or may not be offered into evidence at the time of trial.

On June 7, 1992, upon observing certain computer data which showed that the look-alike substance charge was dismissed, an evidence technician destroyed the white powdery substance obtained from the defendant which allegedly contained cocaine. The defendant moved to dismiss the indictment on the basis that the State's destruction of the white powdery substance violated his due process rights.

The trial court granted the defendant's motion to dismiss the indictment on the basis that the defendant's general motion for discovery was sufficient to require the State to preserve the drug evidence. Thus, the court ruled that the State's destruction of the substance in the face of the defendant's motion for discovery violated the defendant's due process rights. The State appealed.

Trial courts are authorized to dismiss an indictment when a defendant has been denied due process. In ascertaining whether a due process violation has occurred, the trial court must proceed with restraint and dismiss the indictment only when the defendant shows that the violation has caused actual and substantial prejudice. People v. Young (1991), 220 Ill. App. 3d 488, 492, 163 Ill. Dec. 290, 581 N.E.2d 241.

On appeal, the State contends that the trial court erred in dismissing the indictment because there was no due process violation. The State asserts that under People v. Taylor (1977), 54 Ill. App. 3d 454, 12 Ill. Dec. 76, 369 N.E.2d 573, People v. Dodsworth (1978), 60 Ill. App. 3d 207, 17 Ill. Dec. 450, 376 N.E.2d 449, and People v. Sleboda (1988), 166 Ill. App. 3d 42, 116 Ill. Dec. 620, 519 N.E.2d 512, the defendant must file a timely motion to preserve the evidence. Since the defendant did not file a specific request to preserve, the State contends that a violation of dueprocess did not occur. The defendant responds by asserting that his discovery motion was a sufficiently specific request for preservation. The defendant further contends that California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528, and Arizona v. Youngblood (1988), 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333, require the State to preserve the evidence even in the absence of a specific defense request.

In Trombetta, the Supreme Court held that the due process clause of the fourteenth amendment did not require law enforcement agencies to preserve breath samples in order to introduce breath-analysis test results in prosecuting the defendant for driving under the influence of intoxicating liquor. The Trombetta holding centered around the good or bad faith of the State in destroying the evidence and whether the evidence might be expected to play a significant role in the suspect's defense. The Trombetta court articulated a two prong standard of constitutional materiality to be used in determining whether a defendant was denied due process of law due to the destruction of evidence. To successfully assert a violation of due process, the defense must establish that (1) the evidence possesses an exculpatory value that was apparent before the evidence was ...


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