Appeal from the Circuit Court of McHenry County. No. 98--CF--262
The opinion of the court was delivered by: Justice Geiger
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Honorable Thomas A. Schermerhorn, Judge, Presiding.
The State appeals the June 15, 1998, order of the circuit court denying the State's motion for leave to file an additional supplement to its answer to discovery prior to the trial of the defendant, Juan Carlos Leon. The criminal trial was scheduled for June 22, 1998. Since the effect of the order is to suppress certain evidence, the State appeals pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)) and has filed a certificate of impairment. The State argues that the trial court abused its discretion in applying a harsh discovery sanction by denying the State's motion to supplement its discovery answer, striking certain discovery materials tendered by the State after June 3, 1998, and prohibiting the State from eliciting testimony or evidence stemming from certain reports tendered to defense counsel after that date. We affirm.
The record discloses that the North Central Narcotics Task Force initially filed a criminal complaint charging defendant with unlawful criminal drug conspiracy following his arrest on March 2, 1998. Defendant was then indicted on March 19, 1998, with unlawful criminal drug conspiracy and unlawful delivery of a controlled substance (cocaine) (720 ILCS 570/401(a)(2)(D), 405.1 (West 1998)). Co-defendants and coconspirators Andres Garcia and Jaime Rodriguez were charged in the same indictment.
On March 6, 1998, the defendant made a demand for a speedy trial. On March 23, on the defendant's motion, the court entered a "Reciprocal Order For Disclosure" listing discoverable materials and information, ordering the State to comply with the order on or before April 6, 1998, and ordering prompt disclosure of any matter discovered after compliance with this order. Defense counsel was ordered to comply with discovery, subject to any constitutional limitations, on or before April 13, 1998. It was further ordered that all motions, waivers, and demands be made in open court, and the matter was set for April 17, 1998, for jury trial status.
The State filed its answer to the discovery motion stating that it was tendering a list of 26 names of persons who may be called as witnesses; a copy of a 34-page police report, which included the substance of any oral statement made by defendant; and grand jury minutes. The State noted that it was unaware of any statements or reports of experts made in connection with the case at the time but had certain unspecified tangible evidence available for viewing. The State also noted that it had no material or information that would tend to negate the guilt of the accused. On the State's motion, the cause was continued to April 24, 1998, when the jury trial was set for May 4, 1998.
On April 30, 1998, the State's Attorney, through Assistant State's Attorney David B. Franks, moved to supplement its previous answer with a copy of the crime lab report and the curriculum vitae of the forensic chemist and the names and addresses of three additional witnesses the State intended to call as witnesses. On April 30, the court allowed the State's motion instanter and, apparently in response to defense counsel's motion (based in part on the need to review the additional evidence), the court continued the trial to June 22, 1998, over the State's objection.
On June 10, 1998, the State filed another motion to supplement its answer to discovery, stating that there were additional law enforcement agencies involved in the investigation including the Lake County Metropolitan Enforcement Group (MEG) and the Drug Enforcement Agency (DEA); that there was more than one police report and more than one lab report generated; and the State had sought, "through diligence," to obtain all relevant police reports, evidence receipts, lab reports, and the names of those involved in the chain of custody. These additional documents were not specifically identified in the motion nor are they attached to the motion in the record on appeal. The motion appears to have been faxed from Franks' office to defense counsel on or about June 10. On June 12, the court continued the matter to June 15, 1998, for a hearing.
At the June 15 hearing, counsel for each of the co-defendants was present to respond to the State's motion. Franks described his attempts to obtain reports from the agencies involved and argued that he was diligent in doing so. Defense counsel, Francisco Botto, acknowledged that he received the supplemental discovery materials but denied that he did not object to the late discovery. Franks began to fax documents to him, including confessions and DEA reports amounting to about 100 pages that Botto did not have before. Botto received faxes on June 5, 10, and 11. He could not read some of them because they were not legible. Botto noted that the trial had been scheduled for May 4 when he asked for a continuance over the State's objection. He opined that the State was apparently "ready then at that time to try the case with all of this evidence in their hands." Botto noted that the dates on the faxed documents indicated that the Task Force had the documents in April, yet he now had 100 pages of new evidence to go through the week before trial and he was objecting to the State's motion. The record indicates that defendant had been held in jail on a very high bond for 116 days at the time of the hearing.
Mr. D.J. Tegler, counsel for co-defendant Garcia, argued that he was in a somewhat different position because Garcia's trial was set for July 20. However, Tegler had not received certain reports that he had subpoenaed. He did receive police reports pertaining to another co-defendant (presumably Rodriguez). He also received the same documents Botto received in the past week. For the first time, he had now received the report of a confession in Spanish but had not yet received a transcription, and he was considering whether to move for suppression. He argued that MEG was an agent of the State and had been "sitting" on the reports since the day his client was arrested. Tegler strongly objected to the confession coming into evidence three months later.
William Gracik, counsel for co-defendant Rodriguez, also argued against the State's motion, based in part on what transpired at a May 20, 1998, hearing. (There is no report of proceedings for that date in this record.) According to Gracik, the State indicated it had completed discovery on May 20, and the supplemental discovery material now showed a possible conflict of interest between his client and a co-defendant. He noted that his client was sitting in jail and any motion in response to this late discovery would be charged against his client.
In ruling on the State's motion, the trial court observed: "We are talking about people who are in jail awaiting trial. We have drug cases. We are talking about discovery. Mr. Tegler makes a very significant point from my perspective, and that is that these people that have this discovery are not the agents of the defendants, and they're not going to run my court. Now, they're going to give this information up. If you've got somebody's confession, and now within two weeks prior to trial, *** the confession was taken at the time of the arrest or contemporaneous with when they arrested him, what is going on? I personally have a very hard time dealing with discovery motions, and the reason I say that is that it should be a free flow of information immediately. There is no need to muck up the works. Get it out. Get it to these people. I am not saying, Mr. Franks that you didn't act diligently in attempting to get it, but I'm not going to have these agencies running my court, and you can tell them that, and the three Defense motions are granted."
In a criminal case, the provisions of Supreme Court Rule 412 require the State, upon a defendant's request, to disclose material and information within its possession or control, subject to certain qualifications, including, among other things: the names of the witnesses it intends to call at trial; any written or recorded statements and the substance of any oral statements made by the accused or by a co-defendant and a list of witnesses to the making and acknowledgment of statements; any reports or statements of experts made in connection with the particular case, including the results of physical or mental examinations and of scientific tests and experiments or comparisons and a statement of the qualifications of the expert; any books, papers, documents, photographs, or tangible objects that the prosecution intends to use at trial or that were obtained from or belong to ...