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People v. H.S.H.

June 20, 2001


Appeal from the Circuit Court of Du Page County. No. 99--JD--0622 Honorable Elizabeth W. Sexton, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

The State filed a delinquency petition alleging that respondent, H.S.H., committed aggravated assault (720 ILCS 5/12--2(a)(1) (West 1998)), the unlawful use of weapons (720 ILCS 5/24--1(a)(10) (West 1998)), and the unlawful possession of firearms (720 ILCS 5/24--3.1(a)(1), (a)(2) (West 1998)). The trial court barred two State witnesses from testifying after a third State witness who already testified told them about some of his testimony. We reverse and remand.

When the bench trial commenced on October 28, 1999, respondent's attorney moved to exclude witnesses from the courtroom, and the State joined in the motion. The State's first witness was Carlos Garcia. Garcia testified that he did not know respondent before the incident giving rise to this cause occurred. During the afternoon of April 11, 1999, Garcia was with friends Ryan Smith and David Brugger. Garcia parked his car on the street near his home. As Garcia was removing items from his car, he saw five people, including respondent, walk past him and noticed that they were staring at him. Garcia was walking toward his home when he saw respondent flash gang signs. Garcia went to his front steps, put down the items he was carrying, and began to walk toward the group. Respondent retreated through an alley. The remaining individuals began "talking trash" to Garcia. One of them walked up to Garcia and used his chest to bump Garcia. As Garcia pushed that person, a second person shoved Garcia from behind. Garcia raised his fists to fight the second person, but that person did not engage Garcia.

Garcia then saw respondent holding a snow shovel, which Garcia identified in court. Garcia warned that he would kill respondent if respondent came any closer. Respondent dropped the shovel and ran away. Garcia then saw Smith arguing with the other individuals. Garcia watched the argument for a few minutes and then saw respondent standing in an alley and holding a gun. Respondent was about 15 to 20 feet from Garcia and was pointing the gun at him. Garcia did not think the gun was real, so he began to walk toward respondent. Respondent pointed the gun toward the ground, cocked it, and pointed it at Garcia again. Garcia stopped walking and challenged respondent to shoot him. Respondent appeared to be afraid and backed away somewhat. Respondent's companions urged him to withdraw. Garcia's companions pulled Garcia away, and Garcia walked away from respondent. Garcia went home and later told his family what happened. Garcia's sister called the police.

During cross-examination, respondent's attorney asked Garcia what gang he belonged to, and Garcia responded that he was not in a gang. Garcia testified that on the day of the incident he spoke to police officers. Also, Garcia testified that he spoke to Officer Mark Whaley the day after the incident. Respondent's attorney questioned Garcia extensively about what Garcia did after the incident and what he told the police. Respondent's attorney also asked about the gun and how Garcia knew that it was real.

Garcia finished testifying, and the court ordered a short recess. When the trial resumed, respondent's attorney informed the court that a witness observed Garcia walk out of the courtroom and speak with the State's two remaining witnesses. Respondent's attorney requested that the court sanction the State by barring the testimony of the remaining witnesses. The prosecuting attorney asserted that a hearing would be necessary before the court could impose sanctions. The following exchange occurred:

"[Prosecuting Attorney]: *** I don't think sanctions would be appropriate. I don't believe those witnesses were advised *** of the motion to exclude. I am sorry, I did not do that.

THE COURT: I am sorry, I didn't admonish them. I didn't know who was out there."

After another short recess, the prosecuting attorney stated that she did not agree with the allegations of respondent's attorney and related Officer Whaley's version of the alleged incident. The following exchange occurred:

"THE COURT: Was [Garcia] admonished by your office not to discuss his testimony ***?

[Prosecuting Attorney]: I didn't, and I apologize for that. *** I did tell the witnesses they could not be present in the room when they were testifying, but I did not talk to them in more detail about the fact that they could not."

The trial court stated that it would bar the remaining witnesses from testifying. The State requested a short continuance to consider whether it would appeal and to make an offer of proof regarding what occurred outside the courtroom. The court stated that an offer of proof was not necessary but granted a continuance.

On November 19, 1999, the State moved for reconsideration. On January 19, 2000, the trial court agreed with the State that a hearing was necessary to determine whether a violation of the court's order excluding witnesses occurred and, if so, whether the violation prejudiced respondent.

During the March 21, 2000, hearing, respondent called his mother, P.H. She testified that, during the trial, she sat in the lobby outside the courtroom. Respondent's attorney instructed her to wait outside until he called her to testify and not to discuss anything that occurred inside the courtroom until the case concluded. P.H. saw Garcia exit the courtroom and walk to a nearby room where a police officer and a young man were sitting. Garcia said to them, "you are not going to believe what they are saying." Garcia then informed them that he was asked about the shovel and identified it in court. Garcia related that respondent's attorney asked him if he was in a gang and asked about the gun. Garcia said that he denied that he was in a gang and testified that he saw respondent with the gun. The officer told ...

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