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08/26/94 PEOPLE STATE ILLINOIS v. (NO. 4-92-0562)

August 26, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
(NO. 4-92-0562) RANDALL L. SEESENGOOD, DEFENDANT-APPELLANT. THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT, V. (NO. 4-92-0708) RANDALL L. SEESENGOOD, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Woodford County. No. 91CF72. Honorable Richard M. Baner, Judge Presiding.

As Corrected September 29, 1994. Released for Publication October 5, 1994.

Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In March 1992, a jury convicted defendant, Randall Seesengood, of theft of property having a value in excess of $10,000, a Class 2 felony (Ill. Rev. Stat. 1991, ch. 38, pars. 16-1(a)(1)(A), (b)(5)), and acquitted him of unlawful possession of a stolen motor vehicle (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 4-103(a)(1)). Thereafter, the trial court sentenced defendant to 48 months of probation with conditions, including six months in jail followed by one year of home confinement with release for work and payment of $1,134 court costs and $3,395 restitution. In case No. 4-92-0562, defendant appeals both his conviction and sentence, alleging numerous errors occurred from pretrial discovery through trial and sentencing.

After the sentencing hearing, defendant moved for sanctions against the Woodford County State's Attorney for failure to disclose certain evidence. The court granted the motion and imposed a $1,074 sanction upon the State's Attorney. In case No. 4-92-0708, the State's Attorney appeals this sanction.

We affirm defendant's conviction and sentence and reverse the imposition of sanctions against the State's Attorney.

I. BACKGROUND

The material in this section is not to be published pursuant to Supreme Court Rule 23 (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994).

[The following material is not to be published pursuant to Supreme Court Rule 23.]

[The preceding material is not to be published pursuant to Supreme Court Rule 23.]

II. ANALYSIS OF DEFENDANT'S APPEAL (NO. 4-92-0562)

A. The Trial Court's Refusal To Bar Schriver's Testimony

The material in this section is not to be published pursuant to Supreme Court Rule 23.

[The following material is not to be published pursuant to Supreme Court Rule 23.]

[The preceding material is not to be published pursuant to Supreme Court Rule 23.]

B. The Court's Refusal To Grant Defendant a Continuance To Receive Schriver's Medical Records

In March 1992, when the jury trial was once again ready to begin, defendant informed the trial court that he had recently received additional discovery concerning Schriver's past, including information that Schriver abused drugs and had been committed to mental health institutions on several occasions. The court granted defendant's motion for a hearing to determine Schriver's competency to testify, but denied defendant's motion for continuance to obtain Schriver's mental health records, ruling that the discovery rules did not require disclosure of the mental health records of a State's witness. The court further stated that it would not continue this case for more than a week to obtain these records, and because the parties could not obtain these records within that time, they agreed to go forward with the trial. The jury was then selected, impanelled, and sworn.

At Schriver's competency hearing, Schriver testified that he had been in a mental health facility several times and diagnosed as schizophrenic. He had never been discharged from counseling for his mental health conditions, but had simply stopped going. Schriver was also institutionalized on three occasions for attempting suicide. He had run away from the hospital on two occasions. After hearing Schriver's testimony, the court ruled that he was competent to testify.

On appeal, defendant argues that the trial court erred by failing to grant a continuance to allow him to obtain additional mental health records on Schriver from various mental health institutions. Defendant also asserts that he needed the continuance to review supplemental discovery received approximately a week before trial. Although we conclude that defendant has waived this argument, we also disagree with it on the merits.

Defendant alleges that the trial court ordered the State to discloseSchriver's psychiatric records, but provides no citation to the record to support this claim. Our review of the 1,300-page record reveals no such order. Furthermore, defendant cites no authority that requires the State to disclose such records. Accordingly, we find these arguments waived. 134 Ill. 2d R. 341(e)(7); People v. Hood (1991), 210 Ill. App. 3d 743, 746, 569 N.E.2d 228, 230, 155 Ill. Dec. 228.

Moreover, we hold on the merits that the trial court did not err by denying this continuance. In People v. Fonville (1987), 158 Ill. App. 3d 676, 689, 511 N.E.2d 1255, 1264-65, 110 Ill. Dec. 935, this court stated as follows:

"The granting or denying of a motion for a continuance * * * is within the sound discretion of the trial court, and will not be disturbed absent clear abuse. [Citation.] * * * A court on review must * * * consider whether the evidence would be material to the case or" might affect its outcome, and whether defendant has been prejudiced in his right to a fair trial."

Accordingly, in order for the trial court's denial of defendant's motion for continuance to constitute an abuse of discretion, we must conclude that granting the continuance would have affected the outcome of this trial or that defendant was prejudiced by the failure to grant the continuance. Because the trial court permitted defendant to present evidence concerning Schriver's prior mental health commitments and drug abuse, this record fails to show that defendant was prejudiced by the court's denial of a continuance or that the outcome would have been affected. Moreover, defendant has failed to demonstrate any prejudice amounting to anything close to plain error.

C. The Court's Dismissal of the First Jury

The material in this section is not to be published pursuant to Supreme Court Rule 23.

[The following material is not to be published pursuant to Supreme Court Rule 23.]

[The preceding material is not to be published pursuant to Supreme Court Rule 23.]

D. Use of Identification Based Upon Photographic Lineup

Defendant next argues that the trial court erred by denying his motion to suppress Officer Morgan's testimony identifying him, pointing out that the police improperly conducted a post-indictment photographic lineup while he was in custody in another county. Defendant cites People v. Holiday (1970), 47 Ill. 2d 300, 307, 265 N.E.2d 634, 637, for the general proposition that photographic ...


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