The opinion of the court was delivered by: Justice McCULLOUGH
Appeal from Circuit Court of Champaign County No. 96CF1291 Honorable John G. Townsend, Judge Presiding.
The State appeals the order of the circuit court of Champaign County dismissing a felony charge of aggravated battery (720 ILCS 5/12-4(b)(8) (West 1994)) brought against defendant Steven M. Hall. The dismissal was entered on remand ordered by this court (People v. Hall, 291 Ill. App. 3d 1142, 716 N.E.2d 888 (1997) (unpublished order under Supreme Court Rule 23) (No. 4-97-0111)) and was based on the trial court's finding that the State acted vindictively in the filing of the felony charge. On appeal, the State argues (1) the trial court did not apply the proper standards in determining the State was actually vindic-tive; and (2) applying the proper standard, defendant did not meet the burden of establishing the State was actually vindictive. We agree and reverse.
Taken with the case was the State's motion to supplement the record on appeal and defendant's objection thereto. The State seeks to supplement the record with two volumes of common law record in Champaign County case Nos. 96-DT-341 and 96-TR-13731 and a partial report of proceedings of the hearing of October 9, 1996, in case No. 96-DT-341. In the original appeal, this court allowed the State's motion to supplement the record with these documents. People v. Hall, No. 4-97-0111 (order of May 16, 1997). In addition, the State moves to supplement the record in this appeal with a copy of the report of proceedings of the February 14, 1997, hearing in the trial court on defendant's motion to dismiss, which transcript was also before this court in the earlier appeal. Accordingly, we allow the motion to supplement the record.
On July 14, 1996, defendant was arrested and charged by citation with driving a motor vehicle while having a blood-alcohol concentration of 0.10 or more (625 ILCS 5/11-501(a)(1) (West 1996)) in No. 96-DT-341 (DUI) and improper lane usage (625 ILCS 5/11-709(a) (West 1996)) in No. 96-TR-13731. The parties agree he was also arrested for a municipal offense of battery (Champaign Municipal Code §23-42). Assistant State's Attorney Heather Prendergast was assigned to prosecute the causes against defendant, with the assistance of Daniel Kay, a Rule 711 student (145 Ill. 2d R. 711). In a September 16, 1996, letter, the State offered to dismiss the improper lane usage charge if the defendant would plead guilty to the DUI charge. Defendant declined the offer and requested the matter proceed to trial. On the morning the case was set for trial, October 9, 1996, Prendergast filed an information charging defendant with DUI.
That same morning, the State filed a motion for continuance supported by affidavit, which stated as follows: (1) at 10 p.m. the night before, the State discovered the breath test taken by defendant was not properly certified, creating an admissibility problem for the State; (2) the State unsuccessfully attempted to contact an inspector with the Department of Public Health, who would be essential to laying a proper foundation for admitting the breath test; and (3) the State had not subpoenaed the inspector and had no reason to believe he would be available to testify that day. Defendant objected to the State's motion for continuance. Following a brief continuance for the State to conduct additional research on the issue of admissibility, the trial court denied the State's motion for continuance. Immediately thereafter, the State nol-prossed the DUI and improper lane usage charges.
Later that same day, October 9, 1996, assistant State's Attorney Mick McAvoy filed the felony charge of aggravated battery against defendant. Defendant moved to dismiss the charge, asserting vindictive prosecution.
In his motion, defendant alleged that, on the morning of October 9, 1996, prior to and during the proceedings on the State's motion for continuance, McAvoy was present in the courtroom and engaged in a heated discussion with defense counsel regarding defense counsel's failure to notify the State of the defect in the State's evidence, of which McAvoy asserted defense counsel was aware. Defendant further alleged that the State dismissed the charges over defendant's objection. According to defendant, his insistence on his right to proceed to trial and his successful resistance of the State's motion for continuance left the State no choice but to dismiss the DUI charge. In conclusion, defendant alleged that the culmination of these events led McAvoy to charge defendant with aggravated battery "in retaliation" and "out of prosecutorial vindictiveness," violating defendant's due process rights.
On February 14, 1997, at the hearing on the defendant's motion to dismiss, Prendergast testified that, in a conversation with defense counsel, she was alerted to the possibility of a problem with the State's evidence. In the course of preparing for trial the evening of October 8, 1996, she discovered the problem alluded to by defense counsel, the improper certification of defendant's breath test. On the morning of trial, October 9, 1996, she filed an information charging defendant with DUI and then filed a motion for continuance, which motion was denied. Prendergast was present in the courtroom when a discussion took place between McAvoy and defense counsel. McAvoy did not raise his voice and did not appear upset. Defense counsel then asked Prendergast, "do you recall me advising him during that discussion, if he was handling the case that he should talk to me about it, otherwise shut up?" Her answer was she did not remember but agreed it was "something similar to that." After the trial court denied the State's motion for continuance, Prendergast made a motion to dismiss the DUI charge. The motion was granted over defendant's objection. Prendergast had no role in filing the felony aggravated battery information, which was filed by McAvoy. She had no knowledge of when it was filed, and McAvoy did not discuss that charge with her.
McAvoy testified he had no official responsibility in the case against defendant. He became aware of the potential problem with the DUI case against defendant when Prendergast and Kay telephoned him on October 8, 1996, the night before the trial. He first understood the problem with the admissibility of the breath test results at about 10 that night. He met with police officers that night, became aware of the battery offense allegedly committed by defendant, and determined to file felony charges against defendant. He did not recall whether he informed Prendergast of his intent to file the aggravated battery charge and testified he did not give notice to defendant or his counsel of his intent to file the charge. His decision to file the aggravated battery charge had nothing to do with his discussion with defense counsel or with defendant's persistence in asserting his right to trial on the traffic offense.
Thereafter, the trial court granted defendant's motion to dismiss, finding the State's conduct to be presumptively vindictive. Relying on People v. Walker, 84 Ill. 2d 512, 419 N.E.2d 1167 (1981), the trial court found the State failed to identify objective facts sufficient to justify the decision to enhance the battery charge against defendant. The State appealed, arguing inter alia that United States v. Goodwin, 457 U.S. 368, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982), dictated the trial court erred in finding a presumption of vindictiveness applied in the present case.
On appeal, this court reversed, ruling that the trial court erred in finding the filing of the aggravated battery charge was presumptively vindictive and remanded for a determination of actual vindictiveness. People v. Hall, No. 4-97-0111, slip order at 3 (September 12, 1997) (unpublished order pursuant to Supreme Court Rule 23). Remanding the cause for a determination of actual vindictiveness, we cited Goodwin, which stated when a presumption of vindictiveness is not warranted "'a defendant in an appropriate case might prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do.' (Emphasis added.)" Hall, slip order at 8-9, quoting Goodwin, 457 U.S. at 384, 73 L. Ed. 2d at 87, 102 S. Ct. at 2494. This court specifically found that, on the evidence before the trial court, no inference arose that the prosecutor acted with vindictiveness in charging defendant with aggravated battery. Hall, slip order at 8. The trial court was directed to make a determination of whether actual vindictiveness was shown based on objective proof, noting that the trial court should not apply a presumption of vindictiveness, which would impose the initial burden of proof on the State.
Following remand, the trial court conducted a further hearing on May 5, 1998. The trial court took judicial notice of the underlying proceedings in Nos. 96-DT-341 and 96-TR-13731 and the proceedings in the February 14, 1997, hearing. Daniel Kay, who did not testify at the first hearing, testified that on October 8, 1996, he was employed in the State's Attorney's office in the capacity of a Rule 711 student, and on that date he was working on the DUI case with Prendergast, who had the primary responsibility. Kay became aware of the evidentiary problem sometime between 7 and 9:30 that evening. In answer to defendant's counsel's question concerning problems with the chemical test results, Kay stated, "I recall specific conversations, not with me, however I believe it was with you, over the phone, where you gave a cryptic response as to why you were going to go forward with the case and we anticipated it was going to be a plea." Kay stated he was inexperienced with the steps to go through as to foundation requirements for evidence and was not familiar with how much experience Prendergast had, but that McAvoy "was the most experienced and he was offering assistance in that regard." McAvoy was working in his own office upstairs, but would come back down and was with them intermittently throughout that evening. "It seemed that Mick simply--simply appeared and he was--he was good like that, actually. He was always willing to offer advice and help, help out." "The best way to characterize it is a big brother was offering guidance." Kay was not aware of any discussions that night regarding the filing of felony charges against defendant. Kay was present throughout the evening and he was not involved in any meeting in which members of the police department were present. He did not participate in any interviews of police officers in this case. It was possible a meeting was conducted and he did not participate. On the morning of October 9, 1996, prior to the commencement of defendant's trial, Kay and Prendergast "assumed" their positions at the counsel table and McAvoy "assumed a position back in the gallery area." According to Kay, there was discussion in which the three of them inquired of defense counsel "why are you doing this to us," i.e., allowing the case to proceed to trial without informing the State of the evidentiary defect. Kay described the exchange "as kind of like you see with in a bar fight, when two people are getting ready to square off at each other." Thereafter, defense counsel, as he was leaning, pointed his finger at McAvoy, who was still seated in the gallery, telling him if "it wasn't his case, for him to butt out and shut up." Following this exchange, court convened, the State's motion for continuance was denied, and the State nol-prossed the charges. Shortly thereafter, McAvoy indicated to Kay that it was not over yet and he was going to look into filing felony charges.
The trial court again granted defendant's motion to dismiss, finding the objective facts presented "persuade that the felony filing was vindictive," i.e., the State's filing of the additional felony charge of aggravated battery was to punish defendant for securing dismissal of the traffic charges. This appeal followed.
Vindictive prosecution claims present questions of both law and fact. We therefore review the trial court's legal conclusions de novo, but we will not upset the trial court's findings of fact unless clearly erroneous. ...