People v. Cunningham , 106 N.E.3d 467 ( 2018 )

SIXTH DIVISION
June 8, 2018
No. 1-15-3367
2018 IL App (1st) 153367
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
) Circuit Court of Cook County.
Plaintiff-Appellee, )
)
v. ) 14 CR 8635
)
GIOVANNI CUNNINGHAM, )
) Honorable Thomas M. Davy,
Defendant-Appellant. ) Judge Presiding.
JUSTICE CONNORS delivered the judgment of the court, with opinion.
Justices Cunningham and Delort concurred in the judgment and opinion.
OPINION
¶1 Defendant, Giovanni Cunningham, was charged with, inter alia, unlawful use of a
weapon by a felon (UUWF) and aggravated use of a firearm after he was observed loading a
shotgun by Chicago police officers. After a bench trial, defendant was convicted of the
aforementioned offenses and sentenced to eight years’ imprisonment. Defendant appeals, arguing
that his due process rights were violated where police failed to follow the proper inventory
procedures for material, exculpatory evidence and ultimately destroyed said evidence even after
receiving a discovery request from defendant. For the reasons that follow, we affirm the trial
court’s decision.
¶2 BACKGROUND
No. 1-15-3367
¶3 On April 16, 2014, defendant was arrested and charged with one count of armed habitual
criminal, two counts of UUWF, six counts of aggravated unlawful use of a weapon, and two
counts of unlawful use of a weapon.
¶4 On July 10, 2014, defendant filed a motion for discovery, asking that the State disclose
and produce certain evidence. In relevant part, defendant’s motion requested that the State
produce the following:
“A list of all physical property that the State intends to use at the time of trial,
including:
a) A list of all physical property in the possession of law enforcement
officials;
b) Date and time the property was acquired;
c) Location from which property was acquired;
d) What person or persons first took the property into their possession;
e) Reports made by law enforcement authorities pertaining to this property,
including scientific reports, etc.;
f) That such property be made available to the defense for inspection before
trial.”
¶5 Defendant waived his right to a jury trial, and his bench trial began on June 11, 2015. The
State called three witnesses: Officers Caribou, Mostowski, and Meadows. Officer Caribou
testified that on April 16, 2014, at approximately 2:32 p.m., he and his partner, Officer
Mostowski, were on duty conducting narcotics surveillance of 6951 South Indiana Avenue,
which was an abandoned house. Officer Caribou stated that he and his partner were on the porch
of the house next door when they observed three individuals walking to the rear alley of the
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No. 1-15-3367
abandoned house. The officer estimated that he and his partner were approximately 10 to 15 feet
away from the rear of the building, and stated that they had a clear view. Officer Caribou further
stated that as the three individuals walked to the rear of the building, he observed one of them,
who he subsequently identified in court as defendant, take a shotgun from the open doorway at
the rear of the building. Officer Caribou described defendant on that date as wearing blue jeans, a
black and red Bulls coat, and a mohawk haircut, which he agreed was “unique.” He estimated
that defendant was about 5 feet, 5 inches tall. Officer Caribou also stated that the other two
individuals were wearing a black hoodie and a blue hoodie, but neither had a mohawk haircut.
¶6 Officer Caribou testified that he then observed defendant begin to load the shotgun with
ammunition that he removed from either his pants pocket or jacket pocket. The officers then
approached the three individuals and announced their office as Chicago police when they were
about 10 feet away, and all three individuals fled. Officer Caribou further stated that the two
individuals who were wearing hoodies fled back into the alley, but defendant went through the
open doorway into the abandoned house. Officer Caribou followed defendant into the house and
observed defendant drop the shotgun on the bottom of the staircase. Defendant proceeded up the
stairs, and Officer Caribou testified that he then secured the shotgun, which was loaded with four
rounds and one in the chamber. Officer Caribou stated that he then continued to run about
halfway through the building when he heard his partner on the radio state that he observed
defendant go out the front door and onto the next block. Officer Caribou secured the shotgun in
his vehicle and joined up with his partner. At this point, the officers had lost sight of defendant.
The officers then put out information over the radio dispatch that they were looking for three
individuals.
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¶7 Officer Caribou further testified that at approximately 2:48 p.m. on that same date, he
received notice from dispatch that other officers had detained a possible offender. Officer
Caribou then traveled to 6926 South Michigan Avenue, which he testified was approximately
one block away from where he initially observed defendant with the shotgun. Officer Caribou
stated that upon arriving at that location, he saw another officer (Officer Meadows) and his
partner detaining defendant, whom Officer Caribou recognized as “the individual with the
mohawk haircut, the Chicago Bulls clothes that had the shotgun at the abandoned house.” Officer
Caribou further testified that defendant was not wearing the Chicago Bulls jacket at that time but
was wearing blue jeans, a shirt, and “obviously his mohawk.” Officer Caribou stated that
defendant was subsequently taken to the third district police station, where he and his partner,
Officer Mostkowski, spoke to defendant. Officer Caribou testified that at approximately 3:15
p.m., defendant was advised of his Miranda rights by Officer Mostowski. Officer Caribou also
testified that defendant made a statement that “the DOD was in the area shooting, so he went to
go get the shotgun to protect him and his friends.” Officer Caribou testified that “DOD” was
slang for a gang in Chicago. The officer also stated that he inventoried the shotgun he recovered,
which he found out to be a 12-caliber gauge shotgun. Officer Caribou testified that defendant
gave his home address as 9356 South Martin Luther King Drive, and that his date of birth was
July 25, 1990.
¶8 On cross-examination, Officer Caribou testified that when he first saw defendant, he
recognized the following distinguishing features, other than the Bulls jacket: “[b]lue jeans,
medium skin, and roughly about five-five in height.” Officer Caribou described defendant’s hair
as “a fresh clean mohawk haircut.” Counsel for the State confirmed with Officer Caribou that he
inventoried both the shotgun and the Bulls jacket and asked the officer if he knew where the
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jacket currently was. Regarding the jacket’s location within the Evidence and Recovered
Property Section of the Chicago Police Department (ERPS), Officer Caribou stated that “[i]f it’s
still inventoried, it should be down in ERPS. Usually for something like this we would put a hold
on it, so if it’s still on a hold, it’s in ERPS which is at Homan.”
¶9 On redirect examination, Officer Caribou identified the arrest report, which contained a
photo of defendant, and testified that the photo depicted defendant’s unique-looking mohawk on
the date he observed defendant with the shotgun. The following relevant questioning then
occurred:
“Q. Officer I don’t know if you will know the answer to this, but Chicago Police
when personal property of a Defendant such as the clothing that they are wearing is
inventoried and that property is not picked up by a Defendant, do you know whether or
not that property gets destroyed within a certain amount of time?
A. Like I said earlier, I’m positive I put a hold on this because we gave a
description of him wearing it, so if there is a hold on it, it should be at Homan Square
where they hold the property in ERPS.
Q. But you don’t know what happens to it otherwise, correct?
A. No.
Q. Okay. Thank you.
But you did inventory the Bulls jacket in question, is that correct?
A. I am pretty positive I did; yes.
Q. And the inventory for that was under 13151446, is that correct?
A. Correct.”
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¶ 10 The State next called Officer Mostowski to testify. Officer Mostowski testified to
substantially the same events as his partner, Officer Caribou, with a few exceptions. Officer
Mostowski testified that when he first observed defendant, he saw him wearing “[a] Bulls jacket,
blue jeans, and he had a mohawk.” He further testified that the other two individuals who were
with defendant were wearing a black hoodie and a blue jacket. Officer Mostowski testified that
after he and his partner approached the individuals and announced their office, the individuals
ran. The officer stated that he lost sight of defendant after defendant ran into the house, with
Officer Caribou following after defendant. Officer Mostowski testified that after losing sight of
defendant, he ran to the front of the house and then saw defendant again when defendant ran out
of the front of the house. Officer Mostowski stated that he saw defendant run westbound towards
69th Street and Michigan Avenue. The officer again lost sight of defendant and met up with his
partner, who then had the shotgun in his possession. Officer Mostowski confirmed that the
shotgun Officer Caribou recovered was the same one they had observed defendant holding.
¶ 11 Officer Mostowski further testified that he and Officer Caribou received information over
dispatch that a suspected offender had been detained at 6926 South Michigan Avenue, which
was about a block away. When Officer Mostowski arrived at that location, he recognized
defendant as the same person that he had seen with a shotgun moments before at 6951 South
Indiana Avenue. Officer Mostowski stated that defendant was no longer wearing the Bulls jacket
at that time but still had on jeans and the same mohawk haircut. Officer Mostowski testified that
he recognized defendant’s face and had gotten a clear view of his face because defendant had
looked “directly in [his] direction.” Officer Mostowski stated that another officer, Officer
Meadows, showed him a Bulls jacket that he had recovered, and Officer Mostowski recognized it
as the jacket that defendant had been wearing. Back at the third district station, Officer
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No. 1-15-3367
Mostowski and his partner advised defendant of his Miranda rights. Officer Mostowski testified
that defendant made a statement to the officers that, “the DOD[,] Black Disciples, were coming
around the block with guns, so he wanted to protect himself and his friends with the shotgun.”
¶ 12 On cross-examination, Officer Mostowski confirmed that it was officers other than him
and his partner who recovered the Bulls jacket but that he and his partner inventoried the jacket.
Officer Mostkowski also testified that when he spoke to defendant at the third district station, he
got defendant’s basic information, and stated that he thought he got the information off of
defendant’s identification (ID) card. When asked if he would have inventoried defendant’s ID,
Officer Mostkowski said he would not have and instead would have “[l]et him take it. Take it to
the lock-up with him.”
¶ 13 The State next called Officer Meadows, who testified that on April 16, 2014, sometime
after 2:30 p.m., he was on patrol with his partner. Around that time, he heard over his dispatch
radio the description of an offender that fellow officers were chasing. Officer Meadows stated
that the description was of “a male black about five-five with a Chicago Bulls jacket on, medium
complected, hairstyle of a mohawk.” Officer Meadows testified that while he and his partner
were touring the area, at approximately 6830 South Michigan Avenue, he saw a Chicago Bulls
jacket underneath a car in the alley, which was “in the area of the last direction that I heard the
guys give out of where the offenders [sic] was possibly going.” Officer Meadows testified that he
did not recover the jacket at that time and instead continued to search the area, believing that the
subject offender was nearby in light of the jacket’s location.
¶ 14 Officer Meadows further stated that he observed someone who matched the description
given over dispatch, and whom he identified in court as defendant, on the rear porch of the
building at 6926 South Michigan Avenue, which was the building next to where the officer saw
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No. 1-15-3367
the Bulls jacket under the car. Officer Meadows testified that when he saw defendant on that rear
porch, he was wearing blue jeans and had a mohawk hairstyle. Officer Meadows then announced
his office and told defendant to come to him. Defendant did not immediately comply so the
officer took steps toward defendant, grabbed him, and placed defendant in custody. Officer
Meadows testified that he then told dispatch that he had detained a possible offender. He also
stated that Officers Caribou and Mostkowski came to the location where he had detained
defendant and they identified him as the suspect they had been looking for. Officer Meadows
testified that his partner then recovered the jacket from underneath the car and Officers Caribou
and Mostkowski took the jacket with them and defendant.
¶ 15 On cross-examination, Officer Meadows testified that he did not go through the pockets
of the Bulls jacket before handing it over to Officers Caribou and Mostkowski. Also regarding
the jacket, the following relevant exchange occurred:
“Q. Did you see your partner [go through the pockets of the jacket]?
A. I remember him holding the jacket. I can’t say if he went through the pockets
or anything because I had the offender, so—
Q. So, you never found an I.D. of someone else in that jacket, is that correct?
A. No, my partner went through the jacket.
Q. And he didn’t show you any identification recovered from that jacket?
A. I saw an I.D. I saw an I.D. card.
Q. From the jacket?
A. I don’t know. I think it came from the jacket. I’m not sure. I didn’t recover it
from the jacket.
Q. Did you ever see the information on that card?
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No. 1-15-3367
A. Yes.”
Defense counsel then asked Officer Meadows, “Now the identification that you recovered, that
wasn’t [defendant’s], was it?” The State objected on the basis of hearsay, the court sustained the
objection, and the officer did not provide an answer.
¶ 16 The parties stipulated to an Illinois State Police certification that stated defendant did not
have a valid FOID card. The parties also stipulated that the shotgun in question was originally
inventoried under inventory No. 13151436, tested at the police forensics lab, and then re-
inventoried under No. 13152429.
¶ 17 The trial was commenced and continued to July 13, 2015. On that date, the State rested
its case-in-chief and the defense informed the court that it was filing a motion to dismiss or strike
evidence based on destruction of evidence. Defendant’s motion to dismiss or strike evidence
argued that because defendant had filed a motion for discovery, the State was on notice that
evidence must be preserved. The defendant’s motion further asserted that the police’s failure to
preserve the Bulls jacket that defendant was observed wearing on the date of his arrest required
either dismissal of the charges or the striking of any testimony regarding the jacket.
¶ 18 The State filed its response on August 6, 2015, stating that “according to ICLEAR,[1] the
Bulls coat in question was destroyed by ERPS along with the other ‘personal property’ of the
Defendant (cell phones). No explanation or date of destruction is provided.” The State argued
that although the defense filed a general discovery motion, the defense never filed for a
preservation order for the Bulls jacket. The State further asserted that defendant’s motion should
be denied because he failed to show how the inadvertent destruction of the jacket prejudiced
defendant, who was not wearing the jacket when he was arrested, and was identified by his
1
The acronym “ICLEAR” signifies the Illinois Citizen and Law Enforcement Analysis and
Reporting database, which is a “system that stores data relating to criminal offenders in Illinois.”
Samoylovich v. Montesdeoca, 2014 IL App (1st) 121545, ¶ 7.
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“extremely unique [m]ohawk hair style rather than reliance on an item of clothing.”
Additionally, the State contended that defendant sought the two most severe sanctions, which
were not warranted by the officers’ conduct in this case.
¶ 19 On August 12, 2015, the defense sought and was granted leave to amend its motion to
only seek dismissal as relief. As a result, the court struck part of defendant’s prayer for relief,
namely, the portion wherein defendant asked that testimony related to the destroyed evidence be
stricken. Thereafter on that date, the parties orally argued the motion to dismiss. Defense counsel
argued that the jacket could have been exonerating because “it could go against how it was
described by police officers. It could be a very large jacket that did not fit [defendant]. And it
could have this identification card in it, which could be presented as evidence exonerating
[defendant].”
¶ 20 The court denied defendant’s motion to dismiss, noting that the Bulls jacket was marked
as available for return to owner, and even if the police attempted to notify defendant at his home,
he would not have received the notice because he was incarcerated. The record on appeal
contains an inventory record sheet for the Bulls jacket, in which the “property available for
return to owner” box is checked. The court further explained its decision as follows:
“But since it is not a case where the item was to be held for investigation, and or
evidence, it was a return to the owner. Or it should have been marked that way, is also
another story.
The recent Illinois Supreme Court case involving the destruction of evidence,
specifically regarding a video ***. That is [People v. Kladis, 2011 IL 110920].
In that case[,] the Illinois Supreme Court held that the proper remedy there was
the officer could only testify to events other than those on the recording.
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The defense, in its motion, has stricken that prayer for relief. As to the striking of
any testimony regarding the applicable statute for dismissal of the case.
As the State has pointed out, at the time the defendant was arrested, the
identification was not based on the Bulls jacket, since he was not wearing [it] at the time.
There was a description[.] Officer Caribou was in very close proximity to the defendant.
Observed him there.
Based on what has been presented, as far as the motion, the fact that the jacket
was not destroyed, having been marked for evidence or investigation, but rather was
destroyed, at some point, after having been marked as property available for return.
At this time the Motion to Dismiss would be denied.”
¶ 21 The defense then made a motion for a directed finding, which the court denied. The
parties entered a stipulation that the Bulls jacket inventoried in this matter was destroyed and that
the parties had “no idea of the circumstances surrounding the destruction.” The parties also
stipulated that the defense received defendant’s clothing from the Cook County Sheriff’s
Department on April 17, 2014, including “one shoes [sic] multicolored, one pant, black, and two
shirts multicolored.”
¶ 22 Defendant waived his right to testify, and the defense rested its case without presenting
any evidence. Closing argument was thereafter presented. In closing, defense counsel
emphasized that although all three testifying officers stated that defendant was wearing blue
jeans on the date in question, the clothing received from the sheriff demonstrated that
defendant’s pants were actually black. The court asked if the defense would like to examine the
pants, and defense counsel replied in the affirmative. Upon closer inspection, the court described
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No. 1-15-3367
the pants as “True Religion brand jeans.” In its rebuttal, the State asserted, “It appears defendant
is wearing jeans when arrested, just black jeans, not blue jeans, as the officer[s] testified to.”
¶ 23 In delivering its finding of guilt on all counts, the trial court stated that it thought Officer
Caribou’s testimony, alone, was enough to meet the State’s burden. The court noted that the term
“blue jeans” is a generic term that often encompasses jeans that are not just “traditional Levi
Strauss blue.” After considering the totality of the testimony, the court found that the State
established its case beyond a reasonable doubt, specifically because defendant was apprehended
within a very short period of time and only one block over from where he was observed with the
shotgun. Additionally, the court noted that defendant matched the description in terms of “height,
hairstyle, as well as facial observations, made by Officers Caribou and Mostkowski.”
¶ 24 On September 14, 2015, defendant filed a motion for a new trial, which was granted in
part and denied in part. Defendant’s motion argued that the court erred in denying his motion to
dismiss; the officers’ testimony contradicted one another; defendant was wearing black, not blue,
jeans when arrested; and that the State failed to prove an element on counts IV, V, VI, X, and
X1. The trial court granted the motion in part by dismissing counts IV, V, and VI because the
statute involved made reference to “handgun, pistol, or revolver” but defendant was caught with
a shotgun. The court also dismissed counts X and XI because there was no evidence presented as
to the length of the shotgun. The motion was denied as to all other counts, and the court clarified
that there was a finding of guilt as to counts II, III, VII, VIII, and IX.
¶ 25 Also on that date, the court conducted a sentencing hearing and ultimately sentenced
defendant to eight years’ imprisonment. Defendant subsequently filed a motion to reconsider
sentence, which was denied.
¶ 26 Defendant filed his timely notice of appeal on October 13, 2015.
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¶ 27 ANALYSIS
¶ 28 Defendant raises the following arguments on appeal: (1) his due process rights were
violated under both federal and state laws when the police disposed of the Bulls jacket and an ID,
which were pieces of evidence that could exonerate defendant and (2) his eight-year sentence
was an abuse of the trial court’s discretion as excessive in light of defendant’s rehabilitative
potential. However, in defendant’s reply brief, he informed this court that he “has completed his
prison sentence and consequently respectfully withdraws Argument II, which asked for a new
sentencing hearing.” Thus, we only address defendant’s first argument regarding the destruction
of evidence, an alleged discovery violation, that he asserts violated his due process rights.
¶ 29 “A discovery violation may be analyzed as either a due process violation under Arizona
v. Youngblood, 488 U.S. 51, 58 (1988), or under Illinois Supreme Court Rule 415(g)(i) (eff. Oct.
1, 1971).” People v. Borys, 2013 IL App (1st) 111629, ¶ 17.
¶ 30 Due Process Violation
¶ 31 Defendant asserts that his due process rights were violated when the police acted in bad
faith by not following proper procedure and destroying the Bulls jacket, an essential piece of
evidence that was not otherwise available. The State responds that the trial court properly denied
defendant’s motion to dismiss because the Bulls jacket and ID were not materially exculpatory
evidence and were only inadvertently destroyed. We agree with the State and find that the trial
court properly denied defendant’s motion to dismiss.
¶ 32 In this case, defendant filed a motion to dismiss based on destruction of evidence, arguing
that because defendant had filed a motion for discovery, the State was on notice that the jacket
should have been preserved. The defendant initially contended that failure to preserve the jacket
required either dismissal of the charges or the striking of any testimony regarding the jacket.
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However, defendant was subsequently granted leave to amend his motion to omit his request to
strike all testimony regarding the jacket. Thus, the only sanction defendant sought before
proceeding to hearing on the motion was dismissal of the charges. The trial court denied
defendant’s motion to dismiss, noting that the Bulls jacket was marked as available for return to
owner. The court also stated that, in Kladis, the proper remedy was excluding testimony
regarding the destroyed evidence, but that defendant had withdrawn his request for such relief
here. Additionally, the trial court pointed out that defendant was not even wearing the Bulls
jacket at the time he was arrested.
¶ 33 When considering the destruction of evidence, Illinois courts have applied the analysis
set forth in Youngblood. People v. Sutherland, 223 Ill. 2d 187, 235 (2006). In Youngblood, the
defendant was charged with kidnapping and sexually assaulting a minor, but the police failed to
refrigerate the victim’s semen-stained clothes or timely test the stains. Youngblood, 488 U.S. at
52-53. The State did not present any scientific identity evidence, but the victim had identified the
defendant, and the defendant was convicted. Id. at 53-54. The Supreme Court noted that the
police do not have “an undifferentiated and absolute duty to retain and to preserve all material
that might be of conceivable evidentiary significance in a particular prosecution” and held that
“unless a criminal defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law.” Id. at 58.
However, prior to reaching this conclusion, the Court stated, “The Due Process Clause of the
Fourteenth Amendment, as interpreted in Brady [v. Maryland, 373 U.S. 83 (1963)], makes the
good or bad faith of the State irrelevant when the State fails to disclose to the defendant material
exculpatory evidence.” Id. at 57.
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¶ 34 Defendant argues that the Bulls jacket and ID were “key piece[s] of evidence” and were
exculpatory because they could have established misidentification. The State responds that the
jacket and ID were “borderline irrelevant” and thus were only potentially useful evidence. We
agree with the State. Defendant was not wearing the jacket when he was detained, and shortly
thereafter, he was identified by Officers Caribou and Mostowski as being the individual they had
just observed loading the shotgun. There is no evidence that Officers Caribou and Mostkowski
were shown the jacket that Officer Meadows recovered from under the car before identifying
defendant as the individual they were looking for. Thus, there is no evidence that the Bulls jacket
played any role in defendant’s identification by Officers Caribou and Mostowski. Further,
Officer Mostkowski unambiguously testified that he recognized defendant’s face and had gotten
a clear view of his face because defendant had looked “directly in [his] direction.” We also reject
defendant’s contention that perhaps the jacket would be too big or that someone else’s ID was in
the pocket. This is mere speculation, and the record does not support this proposition. Even if the
jacket was big on defendant or the ID belonged to someone else, that does not make either item
exculpatory in light of the clear, un-contradicted identification testimony from the officers in this
case, which was not based on defendant wearing the Bulls jacket or the information on the ID. In
fact, we can imagine a scenario where the testimony regarding the jacket and ID were excluded
and believe the State would still meet its burden in proving defendant’s guilt beyond a
reasonable doubt. As such, we conduct the rest of our analysis based on our finding that the
destroyed evidence here was merely potentially useful, rather than exculpatory.
¶ 35 We now turn back to setting forth relevant precedent. In People v. Newberry, 166 Ill. 2d
310, 315 (1995), the Illinois Supreme Court arguably carved an exception to Youngblood for
situations where the inadvertently lost or destroyed evidence would have been decisive to the
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No. 1-15-3367
outcome of the case. In Newberry, a police field test resulted in no indication of cocaine present
in the substance but a lab test found the presence of cocaine. Id. at 312. The substance at issue
was destroyed before the defendant could test it, and there was no credible evidence of bad faith
by the government. Id. at 312-13. Our supreme court found Youngblood distinguishable because
the defendant’s ability to test the substance at issue was “essential to and determinative of the
outcome of the case,” and the defendant did not “have any realistic hope of exonerating himself
absent the opportunity to have [the substance] examined by his own experts.” Id. at 315.
¶ 36 In Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam), the United States Supreme Court
specifically rejected Newberry’s exception to Youngblood when applied in the context of federal
due process analysis. The Court explained,
“We have never held or suggested that the existence of a pending discovery
request eliminates the necessity of showing bad faith on the part of police. Indeed, the
result reached in this case demonstrates why such a per se rule would negate the very
reason we adopted the bad-faith requirement in the first place: to ‘limi[t] the extent of the
police’s obligation to preserve evidence to reasonable grounds and confin[e] it to that
class of cases where the interests of justice most clearly require it.’ ” Id. at 548 (quoting
Youngblood, 488 U.S. at 58).
¶ 37 Defendant cites to Justice Stevens’s succinct concurrence in Fisher as support for his
contention that a showing of bad faith is not required under state law. Defendant asserts that
although his federal due process rights were not violated, it is possible, even in light of Fisher,
that his state due process rights were violated because in his concurrence, Justice Stevens
specifically stated, “The judgment of the Illinois Appellate Court has limited precedential value,
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and may well be reinstated on remand because the result is supported by the state-law holding in
People v. Newberry, [166 Ill. 2d 310 (1995)].” Id. at 550 (Stevens, J., concurring).
¶ 38 A review of cases decided subsequent to Fisher is pertinent to resolving this conflict.
“With respect to the due-process clause of the fourteenth amendment [citation],
Fisher supersedes Newberry because the Supreme Court of the United States is ‘the final
arbiter on issues involving questions of the [f]ederal constitution’ [citation]. But the
Illinois Constitution also has a due-process clause [citation]. State courts are free to
interpret their own constitutional provisions more broadly than the Supreme Court of the
United States interprets similar federal constitutional provisions.” People v. Kizer, 365
Ill. App. 3d 949, 960 (2006).
¶ 39 In Kizer, the court stated that it was faced with “the following question: Would our own
supreme court accept the analysis in Fisher when interpreting the due-process clause of the
Illinois Constitution?” Id. The court “predicted” that the answer to this question would be yes for
four reasons. Id. Those four reasons are (1) “when discussing the concept of due process in
Newberry, the supreme court made no distinction between the due-process clause of the Illinois
Constitution and that of the federal constitution”; (2) in People v. Pecoraro, 175 Ill. 2d 294, 318
(1997), our supreme court declined to interpret the Illinois due process clause more broadly than
the Supreme Court interpreted the federal due process clause; (3) “Fisher purported merely to
interpret or clarify Youngblood, a decision that our own supreme court has repeatedly followed
when assessing due process”; and (4) “in People v. Caballes, 221 Ill. 2d 282, 313 (2006), the
supreme court recently reaffirmed its commitment to the ‘limited lockstep analysis.’ ” 2 Kizer,
365 Ill. App. 3d at 960-61.
2
For purposes of context, “[u]nder our limited lockstep doctrine, we construe [a] *** clause of
our state constitution the same way [as the Supreme Court interprets the similar federal clause], unless
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¶ 40 The Kizer court pointed out that our state constitution’s due process clause has nearly
identical language to the federal constitution. Id. at 961. The court concluded that the Illinois due
process clause had the same meaning as its federal counterpart, and thus, it concluded that our
supreme court would follow Fisher when analyzing our state constitution’s due process clause.
Id.
¶ 41 Similarly, in People v. Voltaire, 406 Ill. App. 3d 179, 183 (2010), the court stated, “[w]e
agree with Kizer that, if confronted with the issue, the supreme court would follow Fisher.” The
court opined, “Newberry appears to be nothing more than an application of [California v.
Trombetta, 467 U.S. 479 (1984),] and Youngblood, and the Supreme Court has now clarified that
the application of those cases to this situation contradicts the holding in Newberry.” Id.
¶ 42 Further, this court, in People v. Moore, 2016 IL (1st) 133814, ¶ 28, observed that
“[a]lthough we do not have further guidance from our supreme court, subsequent to Fisher, the
appellate court has rejected Newberry and followed Fisher.” The Moore court specifically stated
that it too found the reasoning in Kizer and Voltaire “persuasive” and opted to analyze the facts
before it under the analysis set forth in Fisher. Id. ¶ 31.
¶ 43 Here, we see no reason to depart from the aforementioned decisions of this court and the
other appellate districts. Defendant does not point to, and we have not found, any cases that
deviate from this trend. We find the Kizer court’s logic, namely, the four reasons that led it to
predict that our supreme court likely would not continue to follow Newberry in light of Fisher, to
be rational and convincing. See Kizer, 365 Ill. App. 3d at 960-61. As a result, we apply the
analysis as set forth in Youngblood and Fisher, which means unless defendant can show bad faith
any of the narrow exceptions to lockstep interpretation apply.” People v. Fitzpatrick, 2013 IL 113449,
¶ 28.
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on the part of the police, the failure of the police to preserve potentially useful evidence will not
constitute a denial of due process of law. See Youngblood, 488 U.S. at 58.
¶ 44 Having already determined that the evidence at issue here was merely “potentially
useful,” we next address whether the police acted in bad faith. Defendant argues that the police
here acted in bad faith where they failed to follow proper procedure that resulted in the
destruction of otherwise unavailable evidence. The State responds that defendant has failed to
offer anything but mere speculation regarding bad faith conduct by the police. The State
specifically argues that defendant’s claim that the police acted in bad faith due to their failure to
follow proper procedure is solely based on Officer Caribou’s mistaken testimony that he put a
hold on the Bulls jacket.
¶ 45 Defendant primarily relies on People v. Walker, 257 Ill. App. 3d 332 (1993), to support
his contentions that the officers here acted in bad faith. In Walker, the sole issue the court
addressed was whether the trial court erred in dismissing the defendant’s indictment on the basis
that the defendant’s due process rights were violated when the police destroyed material
evidence. Id. at 333. At trial, the victim testified that on the night in question, she was waiting to
pick up her order in a pizza restaurant when the defendant took her wallet and attempted to take
money that she had in her hand. Id. She recalled during her testimony that at that time, the
defendant was wearing “a brown leather cap, a light-colored jacket and blue jeans.” Id. After the
police arrested the defendant, he was brought back to the crime scene where he was identified by
the victim. Id. The victim testified that when the defendant exited the police car, he was wearing
different clothes than when she saw him at the pizza restaurant and that he had mud on him, but
that his face looked the same. Id. After the victim’s testimony, the State informed the court and
the defense that some inventoried evidence had been destroyed six weeks after the arrest and
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No. 1-15-3367
eight months prior to trial, “including a plastic bag, a jacket, a hat, a knife, a grey suit and a pair
of brown leather gloves.” Id. at 333-34.
¶ 46 On appeal, the State argued that the defendant’s motion to dismiss the indictment should
not have been granted because there was no showing of bad faith on the part of the police. Id. at
335. The court rejected the State’s argument that the bag and clothing were destroyed in
accordance with proper police procedure and, therefore, in good faith. Id. The court found that
the police had acted in bad faith where the evidence was destroyed six weeks after the
defendant’s arrest because “a reasonably prudent police officer acting in good faith would not
assume that material evidence would no longer be needed six weeks after the arrest.” Id. at 335­
36.
¶ 47 The facts underlying the case before us are markedly different than what occurred in
Walker. Here, there is no evidence of when the jacket and ID were destroyed. Additionally, the
inventory sheet reflects that the Bulls jacket was marked as “property available for return to
owner,” which signifies that a hold was not placed on the jacket, contrary to Officer Caribou’s
testimony. As the trial court mentioned, it is possible that the police attempted to contact
defendant to return the items to him given the demarcation on the inventory sheet but that he was
unable to be reached because he was incarcerated. Also, because there is no evidence of when
the jacket was destroyed, we are unaware if there was, in fact, time for defendant to examine the
jacket. Thus, we cannot say that the destruction of the jacket was not in accordance with normal
police procedures. In Walker, that the evidence was destroyed six weeks after the defendant’s
arrest rendered the police’s actions in bad faith. Here, there is no evidence that the police acted in
bad faith to destroy the jacket. Although Officer Caribou testified that he was “positive” he had
put a hold on the jacket, the inventory sheet shows that, in fact, a hold was not placed on the
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No. 1-15-3367
jacket. We do not find that this testimony by Officer Caribou evidences any bad faith on the part
of the police. Further, as stated before, the Bulls jacket and the ID were nearly irrelevant in this
case given the circumstances surrounding the officers’ identification of defendant.
¶ 48 Defendant asserts that it is very likely that the ID in the pocket was not defendant’s
because defendant had his own ID, which Officer Mostowski used to take his information at the
station. We find this contention to be based on pure speculation. In fact, a close review of Officer
Meadows’s testimony shows that it is unclear whether an ID was even in the pocket of the Bulls
jacket. Officer Meadows testified that his partner went through the jacket. He further stated that
he saw an ID, but was “not sure” if it had come from the pocket of the jacket. Thus, there is no
evidence that actually establishes that an ID was removed from the Bulls jacket and consequently
destroyed therewith. Defendant argues that the failure to inventory the ID was a deviation from
proper procedure, evidencing bad faith. However, Officer Mostowski testified that he would not
have placed a hold on the ID but would have given it back to defendant to take with him to
lockup. As a result, we find no evidence of bad faith on the part of the police here. Because
defendant could not show bad faith by the police in the destruction of potentially useful
evidence, his claim that he was deprived of his due process rights fails under the Youngblood and
Fisher analyses.
¶ 49 Discovery Violation
¶ 50 Having determined that defendant’s due process rights were not violated under either the
federal or state constitutions, 3 we next address defendant’s alternative contention that even if the
police did not act in bad faith when they destroyed the Bulls jacket, the court improperly denied
3
In this section, defendant again asserts that he has a viable state-law due process claim under
Newberry in the context of an Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001) discovery violation.
However, we have already rejected defendant’s invitation to reinstate the Newberry holding subsequent to
Fisher. As such, defendant’s state-law based due process challenge fails here for the same reasons set
forth previously in this order.
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No. 1-15-3367
his motion to dismiss based on the State’s destruction of the evidence, which is a discovery
violation.
¶ 51 As an initial matter, we note the parties disagree as to the applicable standard of review.
Citing People v. Lovejoy, 235 Ill. 2d 97, 118 (2009), defendant argues that because the facts that
gave rise to the discovery violation are not in dispute here, we should conduct a de novo review.
The State asserts that an abuse of discretion standard of review applies because the de novo
standard used in Lovejoy was only pertinent to a reviewing court’s determination as to whether a
discovery violation occurred and that an abuse of discretion standard governs whether the trial
court’s decision regarding whether to impose a sanction was proper. We agree with the State.
The threshold issue is not whether the court below ordered an appropriate discovery sanction, but
instead is whether the State was, in fact, guilty of a discovery violation. People v. Hood, 213 Ill.
2d 244, 256 (2004). When a reviewing court addresses that threshold inquiry and the parties do
not dispute the facts giving rise to the alleged discovery violation, then de novo review applies
because a purely legal question is involved. Lovejoy, 235 Ill. 2d at 118. Once that determination
is made, then the question becomes whether the trial court made the correct decision as to the
appropriate discovery sanction, which is subject to an abuse of discretion standard. Hood, 213 Ill.
2d at 256. As a result, we review de novo whether a violation occurred, and we review the trial
court’s decision to deny the motion to dismiss for an abuse of discretion.
¶ 52 In relevant part, Rule 412 states:
“(a) Except as is otherwise provided in these rules as to matters not subject to
disclosure and protective orders, the State shall, upon written motion of defense counsel,
disclose to defense counsel the following material and information within its possession
or control:
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No. 1-15-3367
***
(g) Upon defense counsel’s request and designation of material or information
which would be discoverable if in the possession or control of the State, and which is in
the possession or control of other governmental personnel, the State shall use diligent
good-faith efforts to cause such material to be made available to defense counsel; and if
the State’s efforts are unsuccessful and such material or other governmental personnel
are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or
orders to cause such material to be made available to defense counsel.” Ill. S. Ct. R.
412(a), (g) (eff. Mar. 1, 2001).
¶ 53 Rule 415(g)(i) provides:
“If at any time during the course of the proceedings it is brought to the attention of the
court that a party has failed to comply with an applicable discovery rule or an order
issued pursuant thereto, the court may order such party to permit the discovery of
material and information not previously disclosed, grant a continuance, exclude such
evidence, or enter such other order as it deems just under the circumstances.” Ill. S. Ct. R.
415(g)(i) (eff. Oct. 1, 1971).
¶ 54 “[T]o establish a discovery violation under Illinois Supreme Court Rule 415(g)(i) it is
only required to show that ‘a party has failed to comply with an applicable discovery rule or an
order issued pursuant thereto.’ ” People v. Kladis, 403 Ill. App. 3d 99, 105 (2010) (quoting Ill. S.
Ct. R. 415(g)(i) (eff. Oct. 1, 1971)).
¶ 55 As noted above, we must first determine whether a discovery violation occurred here. We
find that the evidence before us does not clearly indicate whether a discovery violation did or did
not occur. Defendant filed his motion for discovery on July 10, 2014, which was approximately
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No. 1-15-3367
three months after defendant’s arrest. The parties stipulated that the Bulls jacket inventoried in
this matter was destroyed, and that the parties had “no idea of the circumstances surrounding the
destruction.” Thus, it is impossible to know whether the jacket was destroyed prior to, or
subsequent to, the filing of defendant’s motion for discovery. Although Officer Caribou testified
that he was “positive” he had placed a hold on the jacket, the inventory sheet was marked as
“property available for return to owner.” Notwithstanding the foregoing, we presume arguendo
that a discovery violation occurred here and turn next to whether the denial of the motion to
dismiss was an abuse of discretion.
¶ 56 Defendant relies on People v. Koutsakis, 255 Ill. App. 3d 306 (1993), wherein the court
affirmed the trial court’s sanction of the State for destruction of evidence. In Koutsakis, the State
could not produce the tape recording related to the stop and search of the defendant’s vehicle,
and the trial court determined that the proper sanction was to limit the testimony of the police
officers involved. Id. at 314. In reaching its decision to enter this sanction, the trial court noted
that State police logs were not a sufficient substitute for the tape since the logs did not contain
information regarding the officer’s activities during the stop and search. Id. On appeal, the court
found no abuse of discretion and concluded “the trial court properly fashioned an appropriate
sanction which was limited and proportionate to the discovery violation.” Id.
¶ 57 We find that the trial court did not abuse its discretion when it denied defendant’s motion
to dismiss based on destruction of evidence. “[A] trial court may properly fashion a sanction for
a discovery violation when it is proportionate to the magnitude of the violation. [Citation.] The
trial court is in the best position to determine an appropriate sanction based upon the effect the
discovery violation will have upon the defendant.” Id. Here, the only sanction sought by
defendant was dismissal of the charges. The original iteration of his motion to dismiss included a
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No. 1-15-3367
request for the exclusion of any testimony regarding the jacket. However, defense counsel sought
and was granted leave to amend the motion to omit from the prayer for relief the request to strike
testimony. Thus, the trial court was faced with determining whether the dismissal of the charges
here would be proportional to the conduct that led to the destruction of evidence, and ultimately
determined it would not be. We agree because the destruction was inadvertent and there was
conflicting evidence of whether a hold was ever placed on the jacket in the first place.
¶ 58 In Koutsakis, there was no adequate substitute for the destroyed evidence. Id. However,
in this case, a substitute for the destroyed evidence was not relevant because the officers’
identification of defendant was not based on the jacket but instead was based on defendant’s
appearance and his “unique” mohawk hairstyle. Additionally, in Koutsakis, it was clear that the
defendant requested the tape “before the State destroyed it.” (Emphasis in original.) Id. at 312.
Here, it is possible that the jacket was destroyed before defendant filed his motion for discovery.
However, even if defendant’s motion was filed prior to destruction, we would still not find that
the trial court’s decision was an abuse of discretion. By withdrawing part of his prayer for relief
in his motion to dismiss, defendant unambiguously indicated to the court that he only sought the
sanction of dismissal. Pursuant to Rule 415, the trial court could arguably have imposed any
“other order as it deems just under the circumstances” but opted not to. Ill. S. Ct. R. 415(g)(i)
(eff. Oct. 1, 1971). We find that in light of defendant’s withdrawal of his specific request to
exclude testimony regarding the jacket, the trial court’s decision to merely deny the motion to
dismiss, and not impose any other sanctions, was not an abuse of discretion. Dismissal of the
charges against defendant would have been a disproportionate sanction. In light of the foregoing,
we find no indication that the denial of defendant’s motion was an abuse of discretion and
similarly deny defendant’s request that we impose a sanction less severe than dismissal.
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¶ 59 CONCLUSION
¶ 60 Based on the foregoing, we find the trial court properly denied defendant’s motion to
dismiss and affirm its decision.
¶ 61 Affirmed.
26