Appeal from the Circuit Court of Lake County. No. 99-CF-2970 Honorable John T. Phillips and Victoria A. Rossetti, Judges, Presiding.
The opinion of the court was delivered by: Justice Gilleran Johnson
Following a jury trial, the defendant, Walter Lang, was convicted of driving with a revoked license (625 ILCS 5/6--303(a) (West 1998)) and was sentenced to 2½ years' imprisonment. On appeal, the defendant argues that the trial court erred in denying his motion to appoint a special prosecutor where the complainant and key eyewitness for the State was an assistant State's Attorney closely involved in the prosecution of the case. We reverse and remand for additional proceedings.
The record reveals that on September 7, 1999, the defendant was in court on a charge of driving with a revoked license. The defendant's driver's license had been previously revoked for driving under the influence of alcohol. The defendant also had a prior conviction of driving while his license was revoked. After the proceedings, Lake County Assistant State's Attorney Daniel Kleinhubert followed the defendant to a parking garage. Kleinhubert tried to avoid being seen by the defendant. At one point, he hid behind some potted flowers. Later, he stood behind a shaded glass window near the staircase in the parking garage. Kleinhubert observed the defendant get into his vehicle and drive away from the courthouse. Kleinhubert then informed a police officer about the incident, and the officer secured a warrant to arrest the defendant. The defendant was subsequently charged with driving while his license was revoked.
Sometime thereafter, the defendant filed a motion to appoint a special prosecutor in his case. On June 22, 2000, the trial court heard arguments on the defendant's motion. Defense counsel argued that because Kleinhubert was a witness in the pending case, a special prosecutor should be appointed to avoid the appearance of impropriety and to preserve the integrity of the court. Defense counsel also argued that Kleinhubert had a conflict of interest, and the conflict extended to other prosecutors in the Lake County State's Attorney's office. Kleinhubert, arguing on behalf of the State, acknowledged that he could not represent the State during the defendant's trial. However, he argued that another attorney from the Lake County State's Attorney's office could prosecute the defendant at trial. The trial court agreed and denied the defendant's motion to appoint a special prosecutor. However, the trial court ruled that Kleinhubert could not participate in the prosecution of the defendant's case.
Following the trial court's ruling, Kleinhubert appeared on behalf of the State at 23 court dates for status hearings or pretrial conferences. On July 15, 2002, the case ultimately proceeded to a jury trial and was prosecuted by Lake County Assistant State's Attorney Shannon Castellano. Kleinhubert was the sole witness at the trial to testify as to observing the defendant commit the instant offense. At the close of the trial, the jury convicted the defendant of driving while his license was revoked. The trial court subsequently sentenced the defendant to 2½ years' imprisonment. The defendant thereafter filed a timely notice of appeal.
The defendant's sole contention on appeal is that the trial court abused its discretion in not appointing a special prosecutor, independent of the Lake County State's Attorney's office, to prosecute him. The defendant argues that the integrity of the court was harmed where a lone prosecutor acted as a complainant, prosecuted the case for 19 months, and testified as the key eyewitness at trial.
Prior to considering the merits of the defendant's contention, we first address the State's argument that the defendant has waived review of his contention. The State first argues that the defendant has waived review of his contention because he has not included in the record his written motion seeking to appoint a special prosecutor. The States argues that, in the absence of a complete record on appeal, it must be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. See People v. Fair, 193 Ill. 2d 256, 264 (2000).
We do not believe that application of the waiver doctrine on this basis is proper in the instant case. Although the record on appeal does not include the defendant's motion seeking a special prosecutor, the record on appeal does include the record of proceedings from the hearing on the defendant's motion. From this record, we can ascertain the basis of the defendant's motion and the trial court's basis in denying it. As such, we decline to find that the defendant has waived this issue on this basis.
The State additionally argues that the defendant has waived review of the trial court's ruling due to the defendant's conduct in the proceedings below. Specifically, the State argues that the defendant waived review because (1) after the trial court's ruling, the defendant did not object to Kleinhubert's repeated appearances on the State's behalf; (2) the defendant's new counsel filed a new motion seeking the appointment of a special prosecutor, but his counsel never requested a hearing on that motion; and (3) the defendant failed to raise this issue in a posttrial motion. In response to these arguments, the defendant asks us to consider his contention nonetheless because his failure to properly preserve the issue was the result of ineffective assistance of trial counsel. The defendant also requests that we consider his contention under the plain error doctrine.
We agree with the State that the defendant has not properly preserved this issue for our review. See People v. Enoch, 122 Ill. 2d 176, 187 (1988) (arguments not raised at trial or in a posttrial motion are waived for review). Nonetheless, we elect to consider the defendant's contention under the plain error rule pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). The plain error rule may be invoked in a criminal case to review an error that has not been properly preserved if either the evidence was closely balanced or the error was of such magnitude that the defendant was denied a fair trial. People v. Hindson, 301 Ill. App. 3d 466, 473-74 (1998). Here, because we believe that the trial court's refusal to appoint a special prosecutor potentially affected the defendant's right to a fair trial, we will consider the merits of his contention under the plain error doctrine. See generally Sommer v. Goetze, 102 Ill. App. 3d 117, 120 (1981) (refusal to appoint a special attorney for the State deprived the petitioner of a fair hearing).
Article VI, section 19, of the Illinois Constitution provides for the election of a State's Attorney in each county. Ill. Const. 1970, art. VI, §19. The powers and duties of a State's Attorney include commencing and prosecuting all actions, civil and criminal, in which the people of the State may be concerned. 55 ILCS 5/3--9005(a)(1) (West 1998). However, when a State's Attorney is interested in any cause or proceeding, civil, or criminal, which it is or may be his or her duty to prosecute, the court may appoint some other competent attorney to prosecute such cause or proceeding. 55 ILCS 5/3--9008 (West 1998). The purpose of this provision is to prevent any influence upon the discharge of the duties of the State's Attorney by reason of personal interest. People v. Morley, 287 Ill. App. 3d 499, 503-04 (1997). The decision to appoint a special prosecutor rests within the sound discretion of the trial court. People v. Polonowski, 258 Ill. App. 3d 497, 503 (1994). A special prosecutor can be appointed at any stage of the case. Baxter v. Peterlin, 156 Ill. App. 3d 564, 566 (1987).
In Morley, this court explained that there are only two situations in which the Attorney General or the State's Attorney could be considered to be interested so as to authorize the appointment of a special Attorney General or State's Attorney. Morley, 287 Ill. App. 3d at 504. Those two situations are where the attorney is (1) interested as a private individual in the litigation or (2) is an actual party to the litigation. Morley, 287 Ill. App. 3d at 504, citing Environmental Protection Agency v. Pollution Control Board, 69 Ill. 2d 394, 400-01 (1977). Because neither of those situations applies in the instant case, the State argues that the trial court did not abuse its discretion in not appointing a special prosecutor in the case. The defendant responds, however, that the appointment of a special prosecutor is also required if a failure to do so would possibly undermine the integrity of the court. See Sommer, 102 Ill. App. 3d at 12; see also People v. Courtney, 288 Ill. App. 3d 1025 (1997).
In Sommer, a Tazewell County assistant State's Attorney filed a complaint against a Tazewell County sheriff's deputy, following an altercation between the attorney and the deputy. The Tazewell County sheriff filed misconduct charges against the deputy with the sheriff's merit commission. At the hearing before the merit commission, the sheriff was represented by the Tazewell County State's Attorney. The deputy objected to the State's Attorney's representation, arguing that a conflict of interest existed because an assistant State's Attorney was the complaining party and the key eyewitness to the alleged altercation. The merit commission denied the deputy's objection and ultimately dismissed him from his position with the sheriff's office. The deputy argued on appeal that he was denied a fair hearing because the merit commission should have appointed a disinterested attorney to prosecute the sheriff's case. Sommer, 102 Ill. App. 3d at 117-19. The reviewing court agreed and held that the deputy was entitled to a new hearing. Sommer, 102 Ill. App. 3d at 121. The reviewing court held that, where the "assistant State's Attorney was the complainant and key eyewitness, *** it was an abuse of discretion to refuse appointment of ...