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03/27/95 PEOPLE STATE ILLINOIS v. SIDNEY FOSTER

March 27, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SIDNEY FOSTER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County. No. 92CF688. Honorable John L. Davis, Judge Presiding.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In December 1992, a jury convicted defendant, Sidney Foster, of two counts of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12-4(b)(8)), and the trial court later sentenced him to concurrent terms of four years in prison on each count. Defendant appeals, arguing that the trial court deprived him of a fair trial by refusing to permit him to present his affirmative defense of self-defense because he had failed to comply with a discovery order.

We reverse and remand.

I. BACKGROUND

In August 1992, the State charged defendant with two counts of aggravated battery, alleging that while defendant was at a gas station in Decatur, which constituted "a public place of accommodation," he "knowingly made physical contact of an insulting or provoking nature with Steve Woodward, in that he grabbed Steve Woodward on the arm, and spit on Steve Woodward" (count I), and he "knowingly caused bodily harm to Steve Woodward, in that he bit Steve Woodward on the chest" (count II). Thereafter, defendant's attorney entered his appearance, and on September 3, 1992, the trial court conducted a preliminary hearing, finding probable cause to believe that defendant committed these offenses. The court then arraigned defendant, who entered a not guilty plea and requested a jury trial.

The trial court also allotted the matter for jury trial in November 1992 and entered a pretrial discovery order on both the State and the defense. The record shows that the court served a copy of this orderon defendant in open court. The order directed, in part, that within 15 days, defense counsel "shall list any defenses which he intends to make at a hearing or trial, including affirmative defenses[,] non-affirmative defenses, alternative[,] and inconsistent defenses." The order further directed defense counsel to furnish the names and last known addresses of persons he intended to call as witnesses, together with their relevant written or recorded statements.

The State filed its answer to the pretrial discovery order in open court immediately after the court entered this order. The State's answer recited that the State would call the individuals whose names appeared in the police reports being furnished to defendant and incorporated within the State's answer (although we note that those police reports were not made part of the common law record). The State's answer also included a list of witnesses to statements defendant made at the gas station.

In October 1992, the trial court conducted a trial readiness call of cases allotted for the November jury trial term, and on motion of the defendant, without objection by the State, trial of this case was continued until December 7, 1992, and for a trial readiness call on November 23, 1992. At that trial readiness call, both the State and defendant announced ready for trial and the court confirmed the trial allotment.

On December 15, 1992, when the trial court called this case for trial, the State objected to any affirmative defenses that defendant might wish to announce on the morning of trial. In support of its objection, the State pointed out that despite the discovery order the court had entered over three months earlier, defense counsel had filed no discovery response. The court then asked defense counsel to respond to the State's objection, and the following discussion took place:

"[Defense counsel]: I think he has a right of self-defense and I think from the police reports in the case it is obvious that --

THE COURT: Are you familiar with the discovery order entered in the case? Paragraph one states the defendant shall list any defenses which he intends to make at a hearing or trial, including affirmative defenses, non-affirmative defenses, alternative[,] and inconsistent defenses.

[Defense counsel]: I am aware of that, ...


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