Appeal from the Circuit Court of Kane County. No. 10-CF-1508 Honorable Allen M. Anderson, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.
¶ 1 Following a bench trial, the defendant, Andrew A. Collins, was convicted of delivery of a controlled substance within 1,000 feet of a park (720 ILCS 570/401(c) (West 2010)) and sentenced to eight years' imprisonment. On appeal, the defendant argues that the trial court erred in (1) barring the defense from viewing the police department personnel file of the testifying officer and impeaching him with information contained in that file and (2) imposing a public defender reimbursement fee in the absence of a statutorily required hearing. We affirm in part, vacate in part, and remand for a hearing.
¶ 3 On July 21, 2010, the defendant was charged by indictment with unlawful delivery of a controlled substance within 1,000 feet of a park (720 ILCS 570/401(c) (West 2010)) (count I) and unlawful delivery of between 1 and 15 grams of heroin (720 ILCS 570/401(c)(1) (West 2010)) (count II). Prior to trial, the defendant filed a subpoena seeking the personnel file of narcotics officer Craig Tucker of the Elgin police department.
¶ 4 On August 31, 2010, the State argued that the defendant was not entitled to Officer Tucker's employment records because the defendant did not show the relevancy of the records. Specifically, the State argued that the defendant did not show that the officer was ever disciplined and, absent discipline, any incidents in the personnel file were mere allegations. The defendant argued that he had information related to a specific prior incident and that Officer Tucker's credibility was crucial to the State's case. Following argument, the trial court noted that there was a difference between disclosure of information and use in court. The trial court stated that it had reviewed the personnel file in camera. The trial court found that five pages were discoverable information that was relevant to Officer Tucker's credibility and turned those over to the defense.
¶ 5 The five pages of Officer Tucker's personnel file indicated that, in 2006, one of Officer Tucker's colleagues from another police department contacted Officer Tucker and requested that, if contacted by the deputy chief of the Carpentersville police department, he provide inaccurate information regarding whether a certain person had acted as an informant. Officer Tucker was contacted by the deputy chief and he provided the inaccurate information. Although Officer Tucker's subsequent explanation that he was not aware his colleague was under investigation and that he thought he was merely "settling some argument" was believed, he was cited for violations of the Elgin police department rules and regulations and suspended for one day.
¶ 6 On October 7, 2010, the State filed a motion in limine seeking to bar any impeachment of Officer Tucker with the specific incident of misconduct found in the subpoenaed records. On October 20, 2010, a hearing was held on the State's motion. The State argued that it would be improper to impeach Officer Tucker with specific past instances of untruthfulness. The State further argued that the records did not show bias, interest, or motive to testify falsely in the present case. The defendant first argued that a ruling on the issue would be premature since the nature and extent of the officer's testimony at trial was yet unknown. The defendant also argued that, under Rule 405 of the Illinois Rules of Evidence (Ill. R. Evid. 405 (eff. Jan. 1, 2011)), it was proper to impeach Officer Tucker with specific instances of Officer Tucker's truthfulness and character. The defendant argued that the records, showing that Officer Tucker failed to cooperate with a police department investigation and gave inaccurate information, went directly to Officer Tucker's truthfulness, a crucial issue in the defendant's case. Following argument, the trial court noted that the Illinois Rules of Evidence were not effective until January 1, 2011, and thus were not in effect for purposes of the motion. Nonetheless, the trial court found that, even if they were in effect, the rules did not change the fact that impeachment with specific instances of past conduct was not allowed. Accordingly, the trial court granted the State's motion.
¶ 7 On April 21, 2011, the defendant waived his right to a jury trial and proceeded with a bench trial. The evidence showed that on June 11, 2010, Officer Tucker called the defendant to arrange a heroin purchase and suggested they meet at a gas station, across from Trout Park, at 1389 Dundee, in Elgin. The two arranged to meet at 12:30 p.m., when Officer Tucker would buy $180 worth of heroin from the defendant. A narcotics team was set up to follow Officer Tucker to the arranged buy. Officer Tucker was given money that had been photocopied.
¶ 8 Officer Tucker testified as follows. He arrived at the gas station with the money at 12:36 p.m. The defendant arrived, parked his car, and went to Officer Tucker's front passenger-side window. The defendant handed Officer Tucker a clear plastic baggie containing several tinfoil squares. Officer Tucker made his arrest signal as he handed the defendant the money. Officer Tucker took the plastic baggie back to the police station. Officer Tucker measured the distance from the gas station to Trout Park to be 509 feet. Officer Tucker testified to the calibration of the measuring wheel.
¶ 9 Other officers testified that, following the arrest signal, they arrived and saw the defendant standing at the passenger-side window of Officer Tucker's vehicle. They arrested the defendant. The money was scattered on the ground next to the defendant. At the police station, the content of the tinfoil squares tested positive for heroin. The content of the tinfoil squares was taken to the Illinois State Police crime lab, where it also tested positive for heroin and was determined to weigh 1.2 grams. Following closing arguments, the trial court found the defendant guilty of both counts of the indictment.
¶ 10 On August 31, 2011, following the denial of the defendant's motion for a new trial, a sentencing hearing was held. Following the hearing, the trial court sentenced the defendant to eight years' imprisonment. In addition to other fines and costs, the trial court imposed a public defender fee of $1,000. The trial court also ordered that the two convictions be merged. On September 9, 2011, the trial ...