People v. Banks

No. 2--05--0582 Filed: 12-19-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
) Nos. 04--DT--187
v. ) 04--TR--9907
)
RONNELL R. BANKS, ) Honorable
) Robert L. Janes,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE O'MALLEY delivered the opinion of the court:
Following a bench trial in the circuit court of Kendall County at which defendant, Ronnell R.
Banks, was convicted of driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2)
(West 2004)) and driving while his license was suspended (625 ILCS 5/6--303 (West 2004)),
defendant appeals. On appeal, defendant contends that the evidence was insufficient to prove him
guilty beyond a reasonable doubt of driving while his license was suspended, because there was no
evidence that his license was actually suspended on the date of the purported offense. Defendant also
contends that the fact that a videotape of the traffic stop was lost renders the record insufficient for
appellate review and thereby deprives him of his constitutional right to a direct appeal. Finally,
defendant asserts that the evidence was insufficient to prove him guilty of DUI. We reject defendant's
contentions and affirm.
I. BACKGROUND
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We summarize the pertinent facts. On February 1, 2005, a bench trial commenced. A
verbatim transcript of the testimony rendered during trial was not prepared. Instead, for purposes
of appeal, the parties prepared an agreed statement of facts and attached police reports prepared by
Sergeant Terry Klingel of the Yorkville police department and Deputy John Collins of the Kendall
County sheriff's department. The parties indicated that the police officers testified consistently with
their narrative reports. Additionally, Deputy Mitch Hattan of the Kendall County sheriff's department
testified similarly to Klingel and Collins. The following recitation is taken from the police reports
attached to the agreed statement of facts. We note that absent from the agreed statement of facts is
any indication that defendant objected to the hearsay testimony regarding defendant's suspended
license, which was admitted into evidence instead of a certified driver's abstract. Also absent is any
best-evidence objection.
Klingel related that, at about 11:30 p.m., on Friday, September 17, 2004, he was dispatched
to the area of Route 126 and Minkler Road. There, he observed a red Chevrolet sport utility vehicle
(SUV), registered to defendant, with its hazard lights activated. As Klingel approached the vehicle,
he observed defendant exit the passenger side of the SUV. Klingel observed that defendant was
staggering as he exited the vehicle. Klingel asked defendant if he was okay. Defendant responded
that he was fine, but Klingel noted that defendant's speech was "slurred" and "thick-tongued." Klingel
also noticed that an odor of an alcoholic beverage was emanating from defendant's face and mouth.
Klingel asked if defendant had been drinking that night and defendant stated, in slurred speech, that
he had. Klingel asked defendant if he had been driving. Defendant informed Klingel that he had been
driving and drinking, but did not want to drive anymore, so he pulled onto the side of the road. As
Klingel was speaking to defendant, he noticed a beer bottle protruding from a paper bag that was
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lying on the floor of the front passenger side of the vehicle. Klingel, who was outside of his
jurisdiction, called for a Kendall County sheriff's deputy.
Collins reported that, upon arriving at the scene, Klingel related that defendant appeared to
be intoxicated and had admitted that he had been drinking alcohol, and Klingel reported that he had
observed a bottle of beer in a paper bag under defendant's feet. Collins related that Klingel had
learned defendant's name, and Collins noted in his narrative report that defendant's "driver's license
status was that of suspended as of 10/01 for [a previous conviction of] driving under the influence
[(625 ILCS 5/]11--501(a)(2) [(West 2004))]."
Collins related that, when he asked defendant to roll down the passenger window, defendant
appeared to have trouble doing so. Collins opened the passenger door for defendant and noticed the
odor of alcohol coming from the car. Collins noticed that defendant was disheveled and had glassy,
bloodshot eyes. Collins observed a bottle of beer inside a paper bag on the passenger-side floor of
the car.
Collins related that defendant said that he ran out of gas and would need help. Collins asked
defendant where he was coming from and defendant stuttered and appeared to be confused as he
answered. Defendant pointed and appeared to have trouble formulating his answer. Defendant
stuttered and told Collins that his wife did not want him to return home. Defendant told Collins that,
when he arrived at home, his wife told him to leave and he did so.
Collins related further details about the encounter, in which defendant appeared to be
confused and contradicted himself. For example, defendant claimed to be heading toward Aurora,
but he was not headed in the direction toward Aurora when he was found by police. Additionally,
defendant claimed to have obtained food from a Portillo's restaurant, but instead had food wrapped
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in McDonald's packaging in his car. Defendant also told Collins repeatedly that he had not been
drinking alcohol, which contradicted what he told Klingel.
Collins asked defendant to get out of the car and to come to the rear of his vehicle. Collins
smelled a strong alcoholic odor coming from defendant. Collins again asked defendant if he had
consumed any alcohol, and defendant replied that he had "had one beer." Defendant refused to take
a field sobriety test. Collins then arrested defendant. Collins' search of defendant's car uncovered
four unopened bottles of beer, two opened bottles of beer with very little beer remaining, and one
opened can of beer with a small amount of beer remaining. Defendant was transported to the county
jail and charged with, among other things, DUI and driving while his license was suspended. The
beer containers were placed into evidence as well as a videotape of the encounter recorded from
Collins' dashboard video camera.
Also attached to the agreed statement of facts was Collins' "Law Enforcement Sworn Report"
(sworn report). The report contained check boxes to indicate whether defendant surrendered his
driver's license. The "No" box was checked, and Collins recorded that defendant did not surrender
his license at the time of the encounter because his "driver[']s license [was] suspended."
During the encounter, Collins requested that a deputy be dispatched to defendant's home to
make sure that no violence had occurred between defendant and his wife. Hattan responded to the
call. Hattan learned from defendant's wife that defendant had come home drunk and that she told him
to leave.
A dashboard videotape of the encounter with defendant was displayed to the trial court.
According to the agreed statement of facts, the videotape displays "a portion of the events testified
to by Deputy Collins and Sergeant Klingel."
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Defendant did not testify at trial. No other evidence was offered on his behalf. The trial court
noted that, following "presentation of testimony & video," it found defendant guilty of both charges.
For the DUI conviction, defendant was sentenced to a 364-day term of imprisonment, and for the
conviction of driving while his license was suspended, defendant was sentenced to a 24-month term
of probation. In addition, defendant was assessed fines and costs totaling $750 and required to
undergo a level III alcohol treatment program, which was modifiable based upon defendant's
evaluation. Defendant's posttrial motions were denied, and defendant timely appeals. At some point
while the appeal was pending, the parties discovered that the videotape of the traffic stop and arrest
was no longer in the possession of either the circuit court clerk, the State's Attorney, or the public
defender. Included in the record on appeal is an affidavit acknowledging that none of those parties
had or were able to locate a copy of the videotape of defendant's traffic stop and arrest.
II. ANALYSIS
On appeal, defendant challenges the sufficiency of the evidence of his convictions of driving
while his license was suspended and DUI. Defendant also contends that the loss of the videotape of
his traffic stop and arrest makes the record insufficiently complete for review and thereby deprives
him of his right to appeal his conviction of DUI.
A. Sufficiency of Evidence to Sustain Conviction of Driving While His License Was Suspended
Defendant's initial argument on appeal is that the evidence is insufficient to prove that his
license was suspended on the date of the traffic stop. Defendant points to a phrase in Collins'
narrative report that related that defendant's "driver's license status was that of suspended as of 10/01
for [a previous conviction of] driving under the influence [(625 ILCS 5/]11--501(a)(2) [(West
2004))]." Defendant contends that this is ambiguous and could mean that defendant's license was due
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to be suspended October 1, about two weeks after the date of the traffic stop at issue here, or was
suspended in October 2001, three years before the stop. Defendant also notes that there is no driver's
abstract or other documentary evidence in the record to show that defendant's license was suspended
on September 17, 2004, the date of the stop. However, defendant did not argue the best-evidence
rule or inadmissible hearsay below or in this court. Defendant concludes that the evidence was
insufficient to support his conviction of driving while his license was suspended. We disagree.
When a defendant challenges the sufficiency of the evidence, the relevant question for the
reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime to have been proved
beyond a reasonable doubt. People v. Berrier, 362 Ill. App. 3d 1153, 1169 (2006). Here, the issue
is whether there was sufficient evidence in the record that defendant's license was suspended on the
date of the stop.
Often, a circuit court will not have a court reporter present during a trial on a traffic or
misdemeanor offense. People v. Malley, 103 Ill. App. 3d 534, 535 (1982). Given Supreme Court
Rule 323 (210 Ill. 2d R. 323), which sets out alternate methods for obtaining a report of proceedings
for the record on appeal, the presence of a court reporter is not necessarily required in order to ensure
that the record on appeal is sufficiently complete for review. The responsibility for preserving a
sufficiently complete record of the proceedings before the trial court rests with the defendant, as the
appellant. People v. Fernandez, 344 Ill. App. 3d 152, 160 (2003); Malley, 103 Ill. App. 3d at 536.
Where the record on appeal is incomplete, any doubts arising from that incompleteness will be
construed against the defendant (Fernandez, 344 Ill. App. 3d at 160) and every reasonable
presumption will be taken in favor of the judgment below (Malley, 103 Ill. App. 3d at 536).
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Moreover, a defendant cannot agree to a statement of facts, fail to obtain a more detailed alternative,
and then argue on appeal that the record is insufficient. See People v. Luke, 253 Ill. App. 3d 136,
140 (1993).
With these principles in mind, we turn to defendant's argument that the evidence in the record
was insufficient to show that his license was suspended on September 17, 2004. Specifically,
defendant contends that the record does not contain direct evidence proving that his license was
suspended on that date. We disagree with defendant's contention. First, we note that there were no
objections to hearsay evidence. It is well established that when hearsay evidence is admitted without
an objection, it is to be considered and given its natural and probative effect. People v. Akis, 63 Ill.
2d 296, 299 (1976). Here, the agreed statement of facts stipulates that the police officers all testified
consistently with their reports and that the reports were attached to the agreed statement of facts.
Collins filed two reports that were attached to the agreed statement of facts, a narrative report and
a sworn report. The narrative report relates that defendant's driver's license was "suspended as of
10/01." Collins' sworn report relates that, at the time of defendant's arrest, defendant did not
surrender his driver's license because it was already suspended. The sworn report also states that
defendant's driver's license was not valid at the time of defendant's arrest. Taken together, the
narrative report and the sworn report reasonably establish that defendant's driver's license was
suspended at the time of his arrest. Indulging in all reasonable presumptions in favor of the trial
court's judgment demonstrates that the State proved beyond a reasonable doubt that defendant's
driver's license was suspended on September 17, 2004. Defendant's argument focuses only on the
sufficiency of the evidence and fails to consider the waiver wrought by his failure to object to the
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admissibility of the evidence. Accordingly, we reject defendant's contention that the evidence was
insufficient to support his conviction of driving while his license was suspended.
B. Contentions Arising From DUI Conviction
Next, defendant makes a dual contention. First, defendant argues that the omission of the
videotape from the record on appeal precludes effective review because the videotape was displayed
for the trier of fact. Defendant also argues that the evidence was insufficient to prove his guilt of DUI
beyond a reasonable doubt. We will address each contention in turn.
1. Reviewability of record
Defendant begins his analysis by arguing that the State has an obligation to provide a record
of sufficient completeness to permit appellate review, citing Luke, 253 Ill. App. 3d at 139 ("[t]he
State must furnish a record of sufficient completeness to permit proper consideration of [the
defendant's] claims"). This rule posited by defendant appears to conflict with the requirement,
exemplified in cases like Fernandez and Malley, that a defendant is responsible for preserving and
preparing a sufficiently complete record for purposes of appeal. Fernandez, 344 Ill. App. 3d at 160;
Malley, 103 Ill. App. 3d at 536. However, the conflict is illusory--the responsibility for preparation
of the record remains with the defendant. The financial burden of obtaining a transcript, if the
defendant is indigent, is placed upon the State. See Luke, 253 Ill. App. 3d at 139, quoting Griffin
v. Illinois, 351 U.S. 12, 19, 100 L. Ed. 891, 899, 76 S. Ct. 585, 591 (1956) ("a State must afford an
indigent defendant 'as adequate appellate review as defendants who have money enough to buy
transcripts' "). Thus, the responsibility of providing the record for the appellate court to review
remains with the defendant; the defendant's financial burden for so doing is borne by the State where
the defendant cannot afford to do so.
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Having determined that a defendant must provide a sufficiently complete record on appeal,
we review the applicable principles. In order to raise an appeal, the defendant must present a record
of sufficient completeness to permit proper consideration of the defendant's specific claims of error.
People v. Hopping, 60 Ill. 2d 246, 251-52 (1975); Luke, 253 Ill. App. 3d at 139. (As noted above,
this obligation remains with even the indigent defendant. The indigent defendant is not disadvantaged
unduly, however, because the State must bear the cost of preparing the record on appeal.) Where
the court finds that the defendant is not at fault for the incompleteness of the record, it will be
amenable to affording the defendant relief on the basis that the record is insufficient to allow appellate
review. We provide several examples.
In People v. Stark, 33 Ill. 2d 616 (1966), the supreme court remanded the cause for a new
hearing on the defendant's motion to suppress when, through no fault of the defendant, there was no
transcript of the suppression hearing available in the record on appeal. The court noted that, where
the issues discussed during the suppression hearing touched upon the defendant's knowing waiver of
his right to consult an attorney and whether his confession was made knowingly or had been induced
by the police, the transcript of the suppression hearing was "essential to an adequate review." Stark,
33 Ill. 2d at 621. Thus, the court in Stark incorporated both whether the defendant was at fault in
not providing a portion of the record and the missing portions's importance or materiality to the
court's ability to review the matter.
In People v. Ramos, 295 Ill. App. 3d 522, 524 (1998), the defendant's original attorney did
not file a notice of appeal. Three years later, the defendant was allowed to file a late notice of appeal.
For the next year-and-a-half, the defendant attempted to compile a complete record on appeal, but
was unable to locate the stenographic notes of the bench trial. Additionally, the defendant's attempts
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to create a bystander's report were unsuccessful because the defense attorney, the prosecutor, and
the trial court could not locate their notes or files and had insufficient independent memories of the
proceedings. Ramos, 295 Ill. App. 3d at 524. The appellate court ruled that, on the defendant's
challenge to the sufficiency of the evidence, the defendant had demonstrated lack of fault in providing
an incomplete record as well as some State fault in placing the defendant in that situation. Ramos,
295 Ill. App. 3d at 526-27. As a result, the court held that the defendant was entitled to a new trial
in order to vindicate the defendant's right to a direct appeal. Ramos, 295 Ill. App. 3d at 527. Ramos,
then, appears to follow the idea in Stark of combining the relative fault of the defendant with the
importance or materiality of the missing portion of the record.
In People v. Seals, 14 Ill. App. 3d 413 (1973), the State was ordered to complete a
bystander's report but did not obey the order. Ultimately, the trial court provided a synopsis of the
proceedings. The defendant filed a statement that conflicted with the trial court's rendition. Seals,
14 Ill. App. 3d at 414. The court noted that the trial court's summary was sufficient to show the
defendant's guilt but was full of conclusory language and lacking in detail sufficient to allow appellate
review. The court held that the report of proceedings was not sufficient to enable the court to
properly review the alleged trial errors, entitling the defendant to a new trial. Seals, 14 Ill. App. 3d
at 414. Again, Seals combined the concepts of fault (the defendant bore no fault while the State was
at fault for not complying with the order to complete a bystander's report) and the materiality of the
missing evidence or portion of the record to the court's ability to review the issues on appeal.
In Stark, Ramos, and Seals, both elements were present: the defendant's lack of fault and the
materiality of the missing evidence or portion of the record to the court's review. Defendant, by
contrast, suggests that a per se rule should obtain: If evidence presented at trial is missing from the
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record on appeal, then the record is not sufficiently complete for appellate review. Our analysis of
the law in Illinois belies this per se rule. We therefore turn to other jurisdictions to attempt to discern
the roots of defendant's per se rule.
The principles present in Illinois law, materiality of the missing evidence and lack of fault in
causing the omission, have been adopted in a number of other jurisdictions. See Chadwick v. State,
214 Ga. App. 643, 448 S.E.2d 751 (1994) (if the defendant fails to take steps to procure a complete
record, the court will not review the claim); Hall v. State, 849 N.E.2d 466 (Ind. 2006) (loss of
transcript of guilty plea hearing will not prevent review where there is no showing of misconduct by
the State and the defendant does not argue that he was prejudiced); Commonwealth v. Pudder, 41
Mass. App. Ct. 930, 673 N.E.2d 82 (1996) (the defendant found to be at fault in failing to provide
a transcript; the court did not order a new trial in such a circumstance); Commonwealth v. Barry, 19
Mass. App. Ct. 995, 475 N.E.2d 425 (1985) (neither the defendant nor the Commonwealth was at
fault for a gap in the record; the appellate court resolved disputes in favor of the defendant to nullify
any prejudice that may have occurred as a result of the incomplete record); Brawner v. State, 947 So.
2d 254 (Miss. 2006) (the defendant possessed the tapes necessary to provide a complete record but
did not provide a complete record; the court held that the defendant's fault effectively waived the
claim of error); Dykes v. McNeill, 735 S.W.2d 213 (Mo. 1987) (the defendant diligently attempted
to provide complete record and was therefore not at fault for the incomplete record; the court
ordered a new trial because the incomplete record precluded review); State v. Bishop, 350 N.J.
Super. 335, 795 A.2d 297 (2002) (the defendant's decision to flee caused the loss of significant
portions of the record; the court held that the defendant could not now be rewarded by a new trial
due to his earlier wrongful actions); Brown v. State, 743 P.2d 133 (Okla. Crim. App. 1987) (the
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defendant held to be at fault for not attempting to obtain videotape he claimed to be missing from
record; the court denied the defendant's claim on appeal).
There does not appear to be a uniform national standard regarding how to apportion the
burden to provide a sufficiently complete appellate record. For example, some jurisdictions seem to
have a no-fault rule: anytime the record on appeal is not sufficiently complete, the defendant will
receive relief. See Wilson v. State, 334 Md. 469, 639 A.2d 696 (1994) (where parties attempt to
reconstruct record but fail, remedy is new trial); State v. Tilton, 149 Wash. 2d 775, 72 P.3d 735
(2003) (same). Likewise, in other jurisdictions, the burden of maintaining a complete record on
appeal rests on the State or the trial court instead of the defendant. In those jurisdictions, the failure
to provide a sufficiently complete record on appeal will result in a new trial. See Scott v. State, 355
Ark. 485, 139 S.W.3d 511 (2003) (trial court had responsibility to keep a complete record of the trial;
review of record showed it was sufficiently complete for purposes of appeal); Jacobs v. State, 327
Ark. 498, 939 S.W.2d 824 (1997) (trial court had responsibility to keep complete record; new trial
ordered where attempts to remedy incomplete record unsuccessful); State v. Walker, 844 So. 2d
1060 (La. App. 2003) (constitution imposes requirement for complete record on appeal; missing
evidence crucial to review of case and therefore, the defendant received the remedy of a new trial).
From our examination of cases in Illinois, as well as those in other jurisdictions that follow
similar principles, we conclude that the rule described in Hopping provides the general statement of
the law in Illinois: the defendant is obligated to provide a sufficiently complete record for appellate
review. Hopping, 60 Ill. 2d at 251-52. This rule is relaxed where the incomplete record results
through no fault of the defendant and the insufficiency precludes effective appellate review. See
Stark, 33 Ill. 2d at 621. Defendant, therefore, must make a dual showing: that the videotape is
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material to defendant's contentions on appeal and that he is not at fault for failing to preserve the
videotape.
We note that, from Stark, Ramos, and Seals, defendant draws the proposition that an
incomplete record on appeal requires that the defendant be granted a new trial. This argument is
flawed, however, because defendant neglects the necessary steps that must be fulfilled before the
relief of a new trial can be granted. As noted immediately above, the defendant must show both that
the missing part of the record is necessary for effective appellate review and that the defendant is not
at fault for the fact that the record is incomplete. As we discuss, defendant has fulfilled neither
requirement.
Defendant essentially asserts that the loss of the videotape alone, with no other showing,
renders the record incomplete for meaningful review on appeal and entitles him to a new trial. This,
as we have demonstrated, is the law neither in Illinois nor even in those states that place the burden
of producing the record on appeal on the State or the trial court. In all instances, the defendant must
establish that the missing portion of the record is essential for appellate review. See, e.g., People v.
Majka, 365 Ill. App. 3d 362, 370 (2006) (the defendant-appellant must first show a colorable need
for the evidence missing from the record; upon such showing, the State-appellee must show that a
substitute for the missing evidence is sufficient); see also, e.g., Simpson v. Commonwealth, 759
S.W.2d 224 (Ky. 1988) (substitute for missing record sufficient to allow appellate review); State v.
Stokes, 829 So. 2d 1009 (La. 2002) (missing audiotape not material portion of record for purposes
of review); State v. Mitchell, 897 S.W.2d 187 (Mo. App. 1995) (the defendant neither demonstrated
nor argued that missing audiotape contained information relevant to the appellate review of his
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contentions); Bordman v. State, 56 S.W.3d 63 (Tex. App. 2001) (neither State nor the defendant
raised issue regarding missing tape; court held that tape was unnecessary for resolution of appeal).
Defendant does not argue that there is a colorable need for the videotape. Defendant fails to
articulate what the videotape would show. Defendant further fails to suggest that the videotape was
exculpatory or contradictory of any other evidence presented at trial. Defendant argues only that the
videotape is missing. This is an insufficient demonstration of a colorable need.
Defendant attempts to avoid the necessity of demonstrating a colorable need for the missing
videotape by arguing that there is no acceptable substitute for it in reviewing the issue of the
sufficiency of the evidence of defendant's guilt. Regardless of the validity of that view, defendant
could have established a colorable need. Had there been anything depicted on the videotape that was
inconsistent with Collins' and Klingel's testimony, defendant could have amended or supplemented
the agreed statement of facts.
Defendant also could have established a colorable need by pointing to argument of counsel
or comments by the trial court about the videotape. See, e.g., People v. Appelgren, No. 2--05--0018,
slip op. at 10 (October 30, 2007) (colorable need for missing evidence established because of the
emphasis given it in the prosecutor's closing argument). If, for example, the agreed statement of facts
reported that counsel for the State and for defendant had disagreed on what conclusions should be
drawn from the videotape, then there might be a colorable need for the videotape, because we would
have to decide what conclusions could be properly drawn from it.
Defendant argues only that the absence of the videotape renders the record insufficient for
purposes of appellate review. As we have noted, this is neither the standard nor a sufficient
demonstration of colorable need. Because defendant has not made even a prima facie showing that
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the absence of the videotape impairs our review of the record on appeal, we conclude that the record
as it now stands is sufficient for review. The fact that defendant does not argue that the videotape
was even in the least bit exculpatory or inconsistent with any of the police testimony presented at trial
leads us to conclude that it is not material to the points he raises on appeal.
Likewise, defendant makes no argument that the incomplete record was not due to his fault
in assembling the record on appeal. Without such a contention, defendant cannot satisfy the lack-of-
fault element of the Hopping-Stark-Ramos-Seals line of cases. We note that the loss of the videotape
was confirmed at least five weeks in advance of the due date of defendant's brief on appeal and about
five months before the matter was ready to be placed before this court for decision. There was ample
time for defendant to correct the agreed statement of facts to reflect any inconsistencies between the
videotape and the officers' testimony. Defendant has not demonstrated, even cursorily, that the
record on appeal is insufficient for our review. Accordingly, we conclude that we may review the
record on appeal as it stands before us.
2. Sufficiency of evidence supporting DUI conviction
Defendant also explicitly argues that the evidence was insufficient to prove his guilt of DUI
beyond a reasonable doubt. We disagree.
Our analysis above has demonstrated that defendant has failed to establish that the videotape
is essential to the issue of sufficiency of the evidence or to any other of defendant's contentions.
Accordingly, we will examine the record as it stands before us to determine whether any reasonable
trier of fact could have found defendant guilty of DUI beyond a reasonable doubt. Berrier, 362 Ill.
App. 3d at 1169.
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The police reports attached to the agreed statement of facts indicate that defendant mumbled,
stuttered, spoke incoherently, was confused as to his whereabouts, was confused as to where he was
going, smelled strongly of alcohol, and staggered when he attempted to walk. In addition, defendant's
eyes were glassy and bloodshot, and defendant was disheveled. Defendant also refused to take a field
sobriety test. We hold that this evidence was manifestly sufficient to allow the court to find defendant
guilty of the offense of DUI beyond a reasonable doubt. Accordingly, we reject defendant's explicit
contention that the evidence was insufficient to support his DUI conviction.
Before concluding, we respond to the special concurrence's more germane points. The special
concurrence states that defendant did not raise the sufficiency of the evidence of DUI and attaches
an excerpt from defendant's brief to support its notion. The first sentence in the attachment belies the
assertion: "Because the loss of a [sic] crucial prosecution evidence renders the record insufficiently
complete to permit full and proper consideration [of] the claim that the defendant raised in his post-
trial motion - that he was not proved guilty beyond a reasonable doubt (C33) - the defendant has been
deprived of his constitutional right to a direct appeal." Integral to the parties' entire conception of
the issues on appeal is the idea that the evidence was insufficient to support defendant's conviction
beyond a reasonable doubt. Accordingly, we are compelled to address this issue.
Relatedly, the special concurrence strongly criticizes the majority for reaching both elements
of the missing evidence inquiry, the fault inquiry and the colorable need or materiality inquiry. The
special concurrence would impose a waiver on defendant for failing to discuss the fault element, and
it would terminate its analysis at that point. In our view, however, both elements need to be
addressed, considering the equities of this case.
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The State does not argue that defendant was at fault for failing to preserve the videotape.
Instead, the State argues that defendant may be at fault for failing to demand earlier that the videotape
be preserved. Rather than indicating that defendant was at fault, the State's argument suggests the
opposite--that defendant did not have the videotape and did not cause its loss. The circumstances
reported in the affidavit concerning the loss of the videotape further indicate that the videotape was
not under defendant's control at the time of its loss. Accordingly, the record appears to support the
idea that defendant, as a matter of historical fact, was not at fault for failing to preserve the missing
evidence. Due to this factual circumstance, and notwithstanding defendant's failure to recognize the
role of fault in his analysis of the missing evidence, the ideals of justice and fairness dictate that we
forgo strict application of waiver and proceed to the materiality or colorable need element of the
missing evidence analysis.
The special concurrence cites a number of cases from which it purports to derive the rule that
lack of fault must be decided before materiality or colorable need. Slip op. at 22. Contrary to its
representation, none of the cases cited by the special concurrence state a requirement that fault be
considered before materiality or colorable need. Further, we perceive no requirement that either of
the two hurdles defendant faces be addressed first. It is easy to imagine a situation where fault might
be a close question but lack of materiality or colorable need is readily apparent. We wonder what the
special concurrence would do if an appellee demonstrated quite conclusively that certain missing
evidence simply had no bearing on the issues raised in the appeal and expressly declined to address
the fault issue. In short, we do not see that one of the two hurdles is "prefatory" (slip op. at 25) to
the other. Either can be addressed first and sometimes it is better to address both, just as in a
Strickland analysis of ineffective assistance of counsel.
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The special concurrence contains a rather expansive discussion of Foutch v. O'Bryant, 99 Ill.
2d 389 (1984), concluding with: "Finally, it is a waste of time for three appellate justices to
contemplate the possibility that the Foutch rule might not apply, address the merits of an appeal that
was improperly perfected, insufficiently constituted, and improperly argued with improper
presumptions, only to conclude the Foutch rule in fact does apply." Slip op. at 26. Actually, our only
mention of Foutch is now, in response to the special concurrence, because we do not see it as at all
applicable. An appellant confronted with Foutch will argue that the missing part of the record is not
necessary for consideration of the appeal. Here, defendant's motivation is precisely the opposite--he
is arguing prejudice because the missing videotape is necessary for consideration of the appeal.
Moreover, the special concurrence's references to Foutch belie its contention that fault must be
addressed before colorable need or materiality of the missing evidence. Foutch applies only if there
is not "a sufficiently complete record of the proceedings at trial." Foutch, 99 Ill. 2d at 391. Thus,
in order to say that Foutch applies, the special concurrence must have already determined that there
is a need for the item missing from the record. While we maintain that the order in which a court
considers lack of fault and materiality does not matter, the special concurrence, by erroneously relying
on Foutch, actually makes a strong argument that defendant must show colorable need first, because
we would not apply Foutch unless there were a need for the evidence missing from the record.
The special concurrence complains that we incorrectly analogize our analysis with that in
Strickland. Slip op. at 26. However, the special concurrence effectively agrees with our analysis,
recognizing that if materiality of or colorable need for the missing evidence is determined, then we
can examine fault or lack of fault in its loss. Slip op. at 27. Similarly, the special concurrence
challenges our reliance on Malley, because it "applies the Foutch rule." Slip op. at 29. However,
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Malley states, "[a]bsent an adequate presentation of the record by the appellant, every reasonable
intendment against the defendant is presumed on appeal." Malley, 103 Ill. App. 3d at 536. "Absent
an adequate presentation of the record" is another way of stating that the evidence missing from the
record is material to the defendant's claim, or that a colorable need for the evidence has been
demonstrated. Thus, we are relying upon Malley's statement that a defendant must demonstrate
materiality or colorable need.
III. CONCLUSION
Defendant has failed to show that the evidence was insufficient to support his guilt beyond
a reasonable doubt of driving while his license was suspended. Likewise, defendant has failed to
make the requisite showing that he was not at fault regarding the omission of the videotape and that
the videotape is material to his contentions on appeal. Defendant has also failed to demonstrate that
the evidence was insufficient to support his DUI conviction. Accordingly, we affirm defendant's
convictions.
For the foregoing reasons, the judgment of the circuit court of Kendall County is affirmed.
Affirmed.
BYRNE, J., concurs.
JUSTICE McLAREN, specially concurring:
I concur in part and specially concur in part.
FIRST ISSUE
"The defendant was not proved guilty beyond a reasonable doubt of driving while license
suspended- [sic] because the record contains no evidence that his license was suspended on the date
of the traffic stop." Defendant's Brief at 1 (points and authorities) (210 Ill. 2d R. 341(h)(1)).
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I concur in the analysis of the first issue, regarding the suspended license. The law regarding
the admissibility of hearsay evidence and the appropriate weight that may be given to such evidence
if admitted without objection is well established.
SECOND ISSUE
"Because the loss of crucial prosecution evidence renders the record insufficiently complete
to permit full and proper review, the defendant has been deprived of his constitutional right to a direct
appeal of his conviction for driving under the influence of alcohol. The conviction must therefore be
reversed and the cause remanded for a new trial on that charge." Defendant's Brief at 1 (points and
authorities) (210 Ill. 2d R. 341(h)(1)).
Defendant's Argument
Defendant filed a three-page argument claiming that the loss of crucial prosecution evidence
prevents the compilation of a record sufficient for meaningful review. This entire argument is
included in an appendix to this special concurrence so that the reader can read and consider the
argument. Defendant properly cites to cases for the general propositions that a defendant is entitled
to a direct appeal of his conviction and that the State must provide, to an indigent defendant, a
sufficient transcript for meaningful review. However, defendant cites cases that relate to missing or
incomplete transcripts of proceedings. These cases do not stand for, or even consider, the right to
meaningful review in the context of lost real evidence. Defendant properly cites to Stark, Hopping,
Ramos, and Seals as they relate to transcripts but does not set forth the two-step test to establish the
right to a reversal. See, e.g., Ramos, 295 Ill. App. 3d at 526-27 (defendant had "no control over"
the circumstances that led to the compilation of an incomplete record and presented a "colorable
need" for a verbatim transcript). Defendant conveniently mentions only the second step of the
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analysis, relating to "colorable need." Defendant disregards the need to establish that he is not at fault
for the absence of the missing evidence.
In order to raise a proper and adequate appeal, a defendant must present a record of sufficient
completeness to permit proper consideration of his specific claims of error. Hopping, 60 Ill. 2d at
251-52; People v. Luke, 253 Ill. App. 3d 136, 140 (1993). The responsibility for preparation of the
record is borne by the defendant; if the defendant is indigent, the financial burden of obtaining a
transcript, not the administrative burden of preparing the record on appeal, is placed upon the State.
See Luke, 253 Ill. App. 3d at 139. The responsibility of providing the record for the appellate court
to review or establishing a colorable need for the missing portion of the record remains on the
defendant. See Luke, 253 Ill. App. 3d at 140.
Without citation to authority, defendant claims that it is the State's burden to preserve the
evidence or provide the defendant with a copy of the evidence. Without citation to authority,
defendant further claims that "the missing video is the equivalent of a missing transcript." Again,
without citation to authority, defendant claims that "[m]eaningful review requires [the videotape's]
inclusion in the record because the trial judge relied upon it."
This court is not a depository wherein we must research and develop the parties' claims and
arguments. People v. Trimble, 181 Ill. App. 3d 355, 356 (1989). This court is entitled to have the
issues clearly defined and to be cited pertinent authority; arguments that do not satisfy the
requirements of Supreme Court Rule 341 (210 Ill. 2d R. 341) do not merit consideration on appeal.
Trimble, 181 Ill. App. 3d at 356-57. Defendant makes assertions but does not support them with
citation to legal authority. Further, by failing to even acknowledge that lack of fault is part of the
two-step analysis, defendant has failed to raise, let alone establish, his own lack of fault for failing to
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include the videotape in the record on appeal. Thus, defendant has waived the claim concerning the
right to a meaningful review.
Majority Discussion
The majority sets forth the two-step analysis as, "Defendant, therefore, must make a dual
showing: that the videotape is material to defendant's contentions on appeal and that he is not at fault
for failing to preserve the videotape." Slip op. at 12-13. The majority determines that defendant has
not fulfilled either step. Unfortunately, there are several problems with the majority's formulation and
application of the two-step analysis.
First, the majority has, sua sponte, incorrectly transposed the steps so as to place the lack of
fault analysis last and the consideration of the merits first. I come to this conclusion because the
majority does not follow prior law and is devoid of any rationale allowing it to alter the authority
previously contained in numerous supreme and appellate court cases. See, e.g., Stark, 33 Ill. 2d 616;
People v. Majka, 365 Ill. App. 3d 362 (2006); People v. Cunningham, 309 Ill. App. 3d 824 (1999);
Ramos, 295 Ill. App. 3d 522; Luke, 253 Ill. App. 3d 136; Seals, 14 Ill. App. 3d 413.
There is nothing in the majority opinion that would allow it to alter prior law emanating from
the supreme court. The supreme court in Stark first considered whether a missing transcript was the
fault of the defendant-appellant. It determined that the defendant was not at fault because the duty
was on the State to initially provide a transcript, and the State was unable to do so because the court
reporter was unable to locate her notes. Stark, 33 Ill. 2d at 621. The court then proceeded to
determine if the missing record was necessary for meaningful review. Stark, 33 Ill. 2d at 621. The
majority here takes a retrogressive view of judicial hierarchy, wherein the appellate court decides the
order in which the two-step test is cast. Apparently, the majority does not lack the temerity to
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disregard precedent of the supreme court. See Somers v. Quinn, 373 Ill. App. 3d 87, 99-100 (2007)
(O'Malley, J., specially concurring).
I submit that the reason that fault was addressed first by the supreme court was that the
general rule as set forth in Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984), posits:
"[A]n appellant has the burden to present a sufficiently complete record *** to
support a claim of error, and in the absence of such a record on appeal, it will be presumed
that the order entered by the trial court was in conformity with law and had a sufficient factual
basis. Any doubts which may arise from the incompleteness of the record will be resolved
against the appellant."
Without the defendant establishing a lack of fault, Foutch applies. If Foutch applies, then
there are numerous presumptions that are employed in considering the merits of the appeal. If the
record presented does not clearly establish that error was committed, it will be presumed that the
order entered was in conformity with the law and had a sufficient factual basis, and the defendant will
lose on the merits. If the defendant establishes lack of fault, then the Foutch rule and its negative
presumptions will not be applied. Additionally, the more favorable presumptions set forth in Majka,
365 Ill. App. 3d 362, and Mayer v. City of Chicago, 404 U.S. 189, 30 L. Ed. 2d 372, 92 S. Ct. 410
(1971), will apply.
This two-step analysis is more precisely a two-stage analysis. In order for the court to
evaluate the merits of the appeal, it must first determine whether the defendant was at fault so that
the proper set of presumptions can be applied in the analysis on the merits. If a court applied the two-
stage analysis in reverse, any analysis would be subject to revisitation depending upon whether the
appropriate presumptions were applied in conformity with the conclusion of the lack of fault analysis.
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The court could also consider the merits under both sets of presumptions and then consider lack of
fault to determine which presumptions should apply and which hypothetical analysis was appropriate.
That procedure, except possibly in a rare circumstance, would be judicially inefficient. If you want
to put your pants on after you put your shoes on, you may, but if they don't fit over your shoes, you
may have to take your shoes off and put them back on again. The majority's reformulation of the
two-step analysis is similarly impractical.
Addressing lack of fault first is the most logical and practical juxtaposition. Follow, if you
will, these scenarios, based upon prior case law, including Majka, 365 Ill. App. 3d 362.
First scenario: The defendant is at fault. He then has several choices as to how to proceed.
He may provide instead of the missing part of the record a substitute that still does not allow
meaningful review. If he chooses this alternative, he loses because he has failed to suspend the rule
in Foutch. He may provide a substitute that does allow meaningful review. In such a case, we will
address the merits of the claim and relax the Foutch rule, and he may win or he may lose. The State
may or may not augment the substitute in order to properly respond to the claim. However, the State
does not have the burden to do so.
Second scenario: The defendant is not at fault. He has now relaxed or suspended the Foutch
rule. He then has several choices as to how to proceed. First, he may provide a minimal substitute
that enables the appellate court to determine that there is a colorable need but does not allow for
meaningful review. If the State does not augment the substitute to provide for meaningful review,
the defendant wins and obtains reversal and a new trial. Second, the defendant may provide a
substitute that will allow meaningful review. We would address the merits, and the defendant may
win or lose. The State may or may not augment the substitute in order to properly respond to the
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claim. The State has the burden to provide a sufficient substitute for meaningful review if the
defendant establishes a colorable need but does not provide a sufficient record for meaningful review.
Under this scenario the presumptions that are applied are the more favorable presumptions set forth
in Mayer and Majka.
It is evident from the above that, depending upon fault or the lack thereof, the defendant and
the State will have to approach the claim in different ways, as to both strategy and work product.
In the first scenario, the defendant provides a meaningful substitute or he certainly loses. In the
second scenario, he may actually win by not providing a substitute that allows meaningful review.
The difference between the two results and their analyses arises out of the prefatory determination
as to whether the Foutch rule is to be applied or relaxed. Additionally, the State is now burdened
with making strategic choices and creating work product that are not required in the first scenario.
It is not strategically logical to proceed to the colorable need step until the issue of lack of fault has
been addressed and decided.
When the case is presented to us for disposition, if we do not first determine the issue of lack
of fault, we will have to consider both scenarios with differing presumptions and the convoluted
permutations that result by putting the cart before the horse. The juxtaposition of the two-stage test
declared by the majority makes no sense.
The majority disregards the obvious simplicity of disposing of this case pursuant to the Foutch
rule due to defendant's failure to establish lack of fault for filing an incomplete record. This is
impractical for sundry reasons. It is an inefficient use of defendant's time, money, and effort to fail
to establish lack of fault without providing a meaningful substitute. Assuming, arguendo, that the
majority actually did determine that there was a colorable need, defendant would still lose because
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he failed to sustain his burden on the now second stage of lack of fault. It is an inefficient use of the
State's time, money, and effort to have to address the alleged merits when the second stage (lack of
fault), which was raised by the State, would resolve the appeal so expeditiously. It is also unjust to
place upon the State the burden to provide a meaningful substitute when defendant has failed to show
that the Foutch rule should be suspended. A possible result of this false logic is that, if the State
provides a meaningful substitute for the record, it will still be unclear which set of presumptions
should be applied to the substitute. Finally, it is a waste of time for three appellate justices to
contemplate the possibility that the Foutch rule might not apply and to address the merits of an appeal
that was improperly perfected, insufficiently constituted, and improperly argued with improper
presumptions, only to conclude that the Foutch rule in fact does apply.
The majority attempts to rationalize its reformulation by suggesting that there may be times
when addressing fault first might be inefficient and it would be easier to address the merits. The
majority attempts to ameliorate its reformulation by making an analogy to the Strickland analysis:
"In short, we do not see that one of the two hurdles is 'prefatory' (slip op. at 25 ) to the other. Either
can be addressed first and sometimes it is better to address both, just as in a Strickland analysis of
ineffective assistance of counsel." Slip op. at 17. The analogy fails. I do not believe there is an
instance where the second prong of the Strickland analysis was analyzed and then the first prong was
revisited to determine if counsel was ineffective. The second-prong analysis invariably results in a
finding of lack of prejudice, and deficiency is not revisited, as would be required in the majority of
the scenarios involved with a determination of meaningful review. When the Strickland analysis skips
the first step by presuming error, it does not apply a different set of presumptions in determining if
prejudice arose. The determination of prejudice is not affected by the nature of the error. The
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prejudice prong does not apply a different set of presumptions depending upon the resolution of the
first step. However, in this appeal, the lack of fault will cause the relaxation of the negative
presumptions in Foutch. The merit analysis is dependent upon the resolution of the fault issue
because fault will determine the correct set of presumptions to apply.
The majority suggests that the fault step is not prefatory. If so, then which set of
presumptions will be applied when the majority addresses the merits? The majority could actually
"Foutch" the defendant were it to use the negative presumptions and determine that "colorable need"
was not established. The majority might then claim that there is no need to determine fault and simply
affirm, as is done with the mutually independent steps in a Strickland analysis. If the defendant were
actually lacking fault, then he would be the victim of the improper application of the Foutch rule. The
Strickland analogy would be valid only if the majority were to apply the favorable presumptions that
apply under Mayer and Majka and determine that colorable need was lacking. However, if the
majority found colorable need with the favorable presumptions, then it would have to consider lack
of fault to determine if the favorable presumptions were validly applied. Simply put, lack of fault sets
the parameters of the merits analysis. If it is established first, there is little probability that the
presumptions will have to be revisited or that incorrect presumptions will be applied. Thus, utilizing
the second prong first and then revisiting the first prong is both contrary to the application of
Strickland and impractical in its own right.
The majority cites to Malley for the following propositions:
"The responsibility for preserving a sufficiently complete record of proceedings before the
trial court rests with the defendant. [Citation]; Malley, 103 Ill. App. 3d at 536. Where the
record on appeal is incomplete, any doubts arising from that incompleteness will be construed
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against the defendant [citation] and every reasonable presumption in favor of the judgment
below will be taken (Malley, 103 Ill. App. 3d at 536)." Slip op. at 7.
In Malley, the defendant failed to request that a record be made of the trial. On appeal, he
presented an agreed statement of facts but claimed that it was insufficient to allege error or prejudice.
Similar to the case before us, the defendant in Malley did not make "any specific allegations but
merely claim[ed] he [did] not have appeal rights because he [did] not have a transcript." Malley, 103
Ill. App. 3d at 536. The court went on to point out that the defendant did not carry out his burden
to preserve the record before the trial court. Thus:
"Where the record on appeal is incomplete, the court will indulge in every reasonable
presumption favorable to the judgment or order appealed from. [Citation.] Absent an
adequate presentation of the record by the appellant, every reasonable intendment against the
defendant is presumed on appeal." Malley, 103 Ill. App. 3d at 536.
If the above quote sounds familiar, it is because it is virtually identical to the holding in Foutch quoted
above. I submit that Foutch was not cited in Malley simply because it was not decided until two years
after Malley. The majority states:
"Actually, our only mention of Foutch is now, in response to the special concurrence, because
we do not see it as at all applicable. An appellant confronted with Foutch will argue that the
missing part of the record is not necessary for consideration of the appeal. Here, defendant's
motivation is precisely the opposite--he is arguing prejudice because the missing videotape
is necessary for consideration of the appeal." (Emphasis added.) Slip op. at 18.
As the majority cites to Malley as authority, it would be both interesting and enlightening for it to
explain why Malley applies the Foutch rule. The defendant in Malley made virtually the same
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argument as is made here. The majority claims that Foutch is inapplicable in situations where the
defendant makes the argument emphasized above. If the holding in Foutch is inapplicable in this case,
then Malley was wrong to have applied the negative presumptions contained in cases prior to Foutch.
Put another way, Foutch is applied based upon the analysis set forth in the court's disposition. It is
not based upon the arguments made by the defendant. If the supreme court's holding in Foutch is
inapplicable, why is the same holding, made two years earlier by the appellate court in Malley, cited
as authoritative? In response to my special concurrence, the majority claims that it is relying upon
Malley's statement that "a defendant must demonstrate materiality or colorable need." Slip op. at 19.
The majority earlier claimed that Foutch is inapplicable because of what defendant argues rather then
what defendant demonstrates. The majority fails to reconcile its rationale for the inapplicability of
Foutch, based upon the arguments raised in Malley and the case before us, with what was actually
demonstrated in Malley. The defendant in Malley argued prejudice because the missing record was
necessary for consideration on appeal. The court applied the negative presumptions despite the
defendant's argument, because he did not demonstrate lack of fault for the missing record and the
Foutch presumptions doomed his attempt to establish colorable need.
In conclusion, the establishment of lack of fault is determined based upon static parameters,
independent of colorable need. Colorable need is determined by alternative parameters, dependent
upon whether or not lack of fault is established. The majority, by failing to confirm the establishment
of lack of fault as the prefatory step, is not setting forth the law in a clear, concise manner that is
conducive to a plain, speedy, and efficient review.
I submit that the majority can't see the forest for the trees. The Foutch rule is a principle of
appellate procedural review. It exists in any situation that deals with the adequacy of the record
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unless there is an overriding rule or principle that would require relaxation of the rule. According to
Mayer and Majka, the establishment of lack of fault as a prefatory determination would relax the
Foutch holding. Without first determining whether the defendant has sustained his burden of
establishing lack of fault, any future review will be subject to revisitation in order to determine
whether the Foutch rule should be applied to the colorable need stage. This is true regardless of the
nature of the argument raised by the defendant. The defendant can and may argue anything or
everything, but until he satisfies his burden of establishing lack of fault, neither he nor an analysis of
colorable need will resolve whether the unfavorable presumptions of Foutch or the favorable
presumptions of Mayer and Majka will apply.
There is no reported case law or statute that presumes that the loss of evidence, material or
otherwise, will automatically result in reversal of a conviction without the court first determining the
reason for the absence of the evidence. In fact, the Foutch rule posits the opposite conclusion. This
brings us to the majority's unnecessary recitation of foreign jurisprudence. The majority declares the
following:
"In Stark, Ramos, and Seals, both elements were present: the defendant's lack of fault
and the materiality of the missing evidence or portion of the record to the court's review.
Defendant, by contrast, suggests that a per se rule should obtain: If evidence presented at
trial is missing from the record on appeal, then the record is not sufficiently complete for
appellate review. Our analysis of the law in Illinois belies this per se rule. We therefore turn
to other jurisdiction to attempt to discern the roots of defendant's per se rule." Slip op. at 10-
11.
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First, I disagree that a fair reading of defendant's brief would reveal that defendant suggests
a "per se" rule should obtain. Defendant argues, "In some cases, a bystander's report or an agreed
statement of facts may suffice ***. [Citations.] However, that will not always be the case." (The
reader may read the attached argument from defendant's brief in order to personally consider the
"suggestion" of the rule.) I submit that this argument is not claiming that, as a matter of law,
meaningful review cannot be obtained. Mayer, the claimed source of the right to meaningful review
and cited by defendant, did not hold that the record needed to be verbatim or in its original condition.
See Mayer, 404 U.S. at 194, 30 L. Ed. 2d at 378, 92 S. Ct. at 414, quoting Griffin, 351 U.S. at 20,
100 L. Ed. at 899, 76 S. Ct. at 591 ("A 'record of sufficient completeness' does not translate
automatically into a complete verbatim transcript. *** [A] State 'may find other means [than
providing stenographic transcripts for] affording adequate and effective appellate review ***' "). All
cited Illinois case law comports with this statement. Majka, decided in 2006, repudiates the allegedly
suggested "per se" rule. Majka cites to Supreme Court Rule 323(c), which allows the substitution
of a bystander's report when "no verbatim transcript of the evidence of proceedings is obtainable."
210 Ill. 2d R. 323(c); Majka, 365 Ill. App. 3d at 368. Supreme Court Rule 323(d) also allows the
parties to stipulate to an agreed statement of facts in lieu of a report of proceedings. See 210 Ill. 2d
R. 323(d). Majka also cites to Hopping to refute the alleged per se rule:
"Our supreme court has held that the constitution does not require some particular degree of
detail for a substitute to be permissible. Instead, it requires 'a record of sufficient
completeness to permit proper consideration of the specific claims made by the defendant.' "
Majka, 365 Ill. App. 3d at 370, quoting Hopping, 60 Ill. 2d at 251-52.
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The difference between Majka and this case is that, in Majka, the defendant explicitly raised
two issues on appeal that were affected by the lack of a verbatim transcript--the allegedly incredible
testimony of a witness and improper comments made by the prosecutor during voir dire, concerning
the burden of reasonable doubt. These issues were not raised in a vacuum or raised as a nebulous
integral part "of the parties' conception of" the issue of meaningful review, as claimed by the majority
herein. See slip op. at 17. Also in Majka, lack of fault was established, the Foutch rule was
suspended, and the presumptions in Mayer were used to consider the merits. In this case, the claim
of meaningful review is vacuous. Defendant raises the issue of meaningful review but does not raise
any specific issue the review of which would be affected by the lack of a complete record. In support
of his claim of lack of meaningful review, defendant references only a piece of evidence missing from
the record. Defendant neither raises nor attempts to cite an independent issue that would direct our
attention, even if Foutch did not apply, to some portion of the record and some argument that might
establish error. Favorable presumptions have little value when there is nothing to relate them to.
Defendant is guilty of circuitous logic resulting in "bootstrapping."1 He has claimed that he
is entitled to a reversal. Why? Because the missing evidence was crucial. Why? Because the trial
court viewed it. Why? Because it was crucial. If that is how a colorable need is established, then
every time a piece of evidence is missing, there will be, ipso facto, a colorable need established. That
1
Bootstrapping alludes to a German legend about a Baron Münchhausen, who was able to lift
himself out of a swamp by pulling himself up by his own hair. In later versions, he was using his own
boot straps to pull himself out of the sea, which gave rise to the term. R. Raspe, The Surprising
Adventures of Baron Münchhausen (or Baron Münchhausen's Narrative of his Marvellous Travels)
(1785.
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has not been the law, under either Foutch or its exceptions as stated in Mayer and Majka. The
majority is mistaken to conclude that this circuitous argument can be properly addressed by foreign
jurisprudence.
Assuming, arguendo, that defendant suggested such a rule, the law in Illinois is clear, and
there is no benefit to be obtained from considering foreign jurisprudence. There are six Illinois cases
on point: Stark, Luke, Ramos, Seals, Majka, and People v. Cunningham, 309 Ill. App. 3d 824, 830
(1999). The majority does not cite to authority for the proposition that we must or should address
"suggestions," especially those that the court raises sua sponte. As framed by defendant's brief and
his bootstrapping, this is not a case of first impression, and thus reference to foreign jurisprudence
has little bearing upon the resolution of this alleged "suggestion." See, e.g., Tri-G, Inc. v. Burke,
Bosselman & Weaver, 222 Ill. 2d 218, 267 (2006) (a case involving a question of first impression,
where the court examined foreign jurisprudence for enlightenment and direction and adopted the
approach taken by California and New York).
Assuming further that defendant attempted to argue something other than the required two-
stage analysis, it was neither a rule nor per se. Defendant argued that the videotape "is a one-of-a-
kind recording that cannot be recreated with a bystander's report or agreed statement of facts."
Defendant's argument is not a per se rule but a sui generis argument. Coincidentally, this argument
was refuted in Majka:
"Our supreme court has held that the constitution does not require some particular degree
of detail for a substitute to be permissible. Instead, it requires 'a record of sufficient
completeness to permit proper consideration of the specific claims made by the defendant.'
[Citation.]" Majka, 365 Ill. App. 3d at 370.
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Defendant incorrectly raised the issue of meaningful review and the majority turns it into a "suggested
per se rule"/straw man in order to recite foreign jurisprudence. The majority, rather than defendant,
is making the suggestion. The majority, rather than defendant, relates to foreign jurisprudence to
conflate this unnecessary revelation. The majority early on establishes what the law in Illinois is. See
slip op. at 10-11. There is no need to go further. Ironically, the majority concludes its research of
foreign jurisprudence with the following statement: "From our examination of cases in Illinois, as well
as those in other jurisdictions that follow similar principles, we conclude that the rule described in
Hopping provides the general statement of the law in Illinois ***." Slip op. at 12. Illinois cases are
controlling (see People v. Human, 331 Ill. App. 3d 809, 820 (2002)); foreign jurisprudence is not.
See Giannini v. First National Bank of Des Plaines, 136 Ill. App. 3d 971, 980 (1985). To the extent
that the majority's statement equates the legal effect of foreign jurisprudence with that of Illinois case
law, I disagree. I believe that the exposition on foreign jurisprudence is irrelevant, immaterial, and
incompetent. There is nothing of legal significance to be gained by including the exposition in this
disposition.
Finally, the majority inaccurately defines what the correct second stage is or should be. The
majority first posits the stage as showing "that the videotape is material to defendant's contentions
on appeal." Slip op. at 12-13. In the conclusion, the majority reiterates the stage as establishing "that
the videotape is material to his contentions on appeal." Slip op. at 19.
I submit that the proper phrase to define the second stage should include the term of art that
is set forth in 10 other Illinois cases. The term of art is "colorable need." See Appelgren, No. 2--05--
0018, slip op. at 8 (October 30, 2007); Majka, 365 Ill. App. 3d at 370; Cunningham, 309 Ill. App.
3d at 830; Ramos, 295 Ill. App. 3d at 526; Luke, 293 Ill. App. 3d at 139; In re Dawn H., 281 Ill.
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App.3d 746, 753 (1996); Malley, 103 Ill. App. 3d at 536; People v. Armstrong, 43 Ill. App. 3d 586,
597 (1976); People v. Robinson, 25 Ill. App. 3d 52, 59 (1975); Seals, 14 Ill. App. 3d at 414.
Considering the abundant use of "colorable need" to define this stage, the majority should not
cease its use through the creation of an alternative phrase. (Ironically, the majority itself mentions
"colorable need"at least nine times as a term of art relating to the second stage (slip op. at 14 (four
times), 15 (five times)). The correct second stage should be, "the defendant must establish a
colorable need for the item missing from the record based upon the issue(s) raised on appeal." This
phrase means issue(s) other than the sole issue raised herein, i.e., that meaningful review is impossible
simply because there is something missing. There must be a context, or the defendant will merely be
bootstrapping, as was done here.
Finally, I disagree with the non sequiturs contained in the majority opinion. The first non
sequitur states as follows:
"Because defendant has not made even a prima facie showing that the absence of the
videotape impairs our review of the record on appeal, we conclude that the record as it now
stands is sufficient for review." Slip op. at 14-15.
The failure to prove one side of a proposition does not prove the opposite. An example of this axiom
is the Scottish Verdict. The Scottish Verdict has three possible dispositions: guilty, not guilty, and
not proven. The "not proven"verdict is rendered when the evidence presented does not establish guilt
but fails to establish innocence. Another example is that the failure to prove that God exists does not
prove that God does not exist. The failure to prove that the record is insufficient does not prove that
it is sufficient. It merely establishes that the defendant has not sustained his burden on review.
The majority serves up its second non sequitur immediately thereafter:
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"The fact that defendant does not argue that the videotape was even in the least bit
exculpatory or inconsistent with any of the police testimony presented at trial leads us to
conclude that it is not material to the points he raises on appeal." Slip op. at 15.
There is more than one probable reason why the argument was not made. One probable reason is that
it does in fact lack merit. Another probable reason is that counsel was ineffective for failing to
properly raise and argue the point, as evidenced by the three-page argument attached. The majority's
conclusion is pure speculation, and I distance myself from it. More to the point, it is a conclusion
based upon a negative presumption connected to the Foutch rule. It would appear that the majority
is applying a Foutch rule presumption before it determines if the Foutch rule applies.
The third non sequitur states:
"Defendant has not demonstrated, even cursorily, that the record on appeal is insufficient for
our review. Accordingly, we conclude that we may review the record on appeal as it stands
before us." Slip op. at 15.
This is a repetition of the first non sequitur. It establishes the proof of a proposition based upon the
lack of proof of the opposite. Additionally, it makes no sense to review the record when defendant
raises no issue relating to the need to review what is contained in the record. The second issue raised
by defendant raises an argument about what is not in the record, not what is. Any discussion
regarding review of the record with regard to the second issue is unnecessary.
THIRD ISSUE
" ." Defendant's Brief at 2 (points and authorities) (210 Ill.
2d R. 341(h)(1)).
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The majority claims that " [d]efendant also argues that the evidence was insufficient to prove
his guilt of DUI beyond a reasonable doubt." Slip op. at 8. The majority is more emphatic on page
15 wherein it relates, "Defendant also explicitly argues that the evidence was insufficient to prove his
guilt of DUI beyond a reasonable doubt." Slip op. at 15.
I disagree. There is no issue set forth in defendant's brief that remotely raises reasonable
doubt as to DUI. There were only two issues raised in the brief and they are set forth verbatim
above. Additionally, there are no points and authorities set forth in the brief that remotely raise,
expound upon, cite authority regarding, or argue that the evidence was insufficient to prove guilt.
There is nothing to support the existence of the explicit argument addressed by the majority as the
third issue. Supreme Court Rule 341(h)(3) requires a statement of the issue(s) for review. 210 Ill.
2d R. 341(h)(3). Supreme Court Rule 341(h)(1) requires a "summary statement, entitled 'Points and
Authorities,' of the points argued and the authorities cited in the Argument." 210 Ill. 2d R.
341(h)(1). Supreme Court Rule 341(h)(7) states in part, "Points not argued are waived and shall not
be raised in the reply brief, in oral argument, or on petition for rehearing." 210 Ill. 2d R. 341(h)(7).
Defendant's entire DUI argument is attached so that the reader may attempt to locate wherein
defendant allegedly raised the issue of guilt beyond a reasonable doubt, in conformity with rules of
appellate procedure or otherwise. It is also included so that the reader may search for the element
or elements of the crime that were allegedly not proven, as well as the references to the record where
the evidence was insufficient, incredible, inconsistent, impeached, incompetent, or exculpatory. The
reader may also attempt to locate the citations to authority regarding all of the above.
The majority responds to my concern by relating that "[i]ntegral to the parties' entire
conception of the issues on appeal is the idea that the evidence was insufficient to support defendant's
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conviction beyond a reasonable doubt. Accordingly, we are compelled to address this issue." Slip
op. at 16. I submit that we are compelled by supreme court rule to refuse to address an issue not
raised by defendant. The definition of "integral" is "essential to completeness." Webster's Third New
International Dictionary 1173 (1993). The mention of guilt in defendant's brief is related only to the
issue of whether there is a colorable need to make further inquiry. The mention of reasonable doubt
in the postjudgment motion does not qualify as an explicit statement regarding whether defendant was
not guilty. Mentioning guilt without setting it forth in the statement of issues or points and authorities
and without developing any argument concerning lack of guilt does not qualify as explicitly raising
an issue for appellate review. Defendant does not seek a review of the determination of his guilt. If
he did, then what element or elements are unproven, and where in (or out of) the record is the
evidence of innocence? The issue of guilt was not properly raised as the basis for establishing a
"colorable need," nor was it presented as a separate issue that we are compelled to address. If the
issue were properly raised, it might have cured defendant's circuitous arguments. However, it was
not raised. If defendant has raised the issue of guilt, he has done nothing more than dump this
"integral part" of the issues on us in violation of established case law and rules of appellate procedure.
Assuming, arguendo, that the issue is an "integral part" of the colorable-need test, it is waived, and
we are compelled not to address it:
"Defendant does not identify the element of the offense that he claims was not sufficiently
proven, nor does he in any manner explain how the evidence was insufficient to prove him
guilty of this offense beyond a reasonable doubt. We deem this contention waived, as it is
devoid of argument or citation to legal authority in contravention of the requirements of
Supreme Court Rule [341(h)(7) (210 Ill. 2d R. 341(h)(7))]. *** The appellate court is not
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a depository into which a party may dump the burden of research. [Citation.] It is well settled
that we are entitled to a well-reasoned argument, along with authority for such argument.
[Citation.]" People v. John J. O'Malley, 356 Ill. App. 3d 1038, 1046 (2005) (with J.M.
O'Malley, P.J., concurring).
Finally, the majority makes the following representation:
"The circumstances reported in the affidavit concerning the loss of the videotape further
indicate that the videotape was not under defendant's control at the time of its loss.
Accordingly, the record appears to support the idea that defendant, as a matter of historical
fact, was not at fault for failing to preserve the missing evidence. Due to this factual
circumstance, and notwithstanding defendant's failure to recognize the role of fault in his
analysis of the missing evidence, the ideals of justice and fairness dictate that we forgo strict
application of waiver and proceed to the materiality or colorable need element of the missing
evidence analysis." Slip op. at 17.
I disagree.
The affidavit referenced above states the following:
"[A] video tape of the traffic stop and subsequent arrest of the defendant, which was
considered by the trial judge in this captioned case, is not in the possession of the Office of
the Kendall County Circuit Clerk, Kendall County State's Attorney's Office or Kendall County
Public Defender's Office. A search by all parties involved to locate the video tape has been
unsuccessful."
The affidavit establishes only two things: first, that the tape is not in the record; and, second, that a
search by all parties was unsuccessful. There is nothing in the affidavit to support the conclusion that
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the tape was lost while "not under defendant's control." The conclusions drawn by the majority are
non sequiturs. The affidavit does not establish lack of fault as to any affiant. "[A]bsence of evidence
[of fault] is not evidence of absence [of fault]." People v. Mata, 353 Ill. App. 3d 784, 788 (2004)
(McLaren, J., specially concurring). The burden is not on the State to establish its lack of fault or to
establish fault on the part of the defendant. It is the burden of the defendant to establish lack of fault
on his part. This affidavit neither states nor implies that defendant is lacking in fault. The majority
has submitted these non sequiturs in order to rationalize its compulsion to address the merits of this
unstated, unargued, and undeveloped issue.
CONCLUSION
As noted by Timothy P. Terrell, professor of law at Emory University and lecturer on legal
writing, most practitioners/readers read opinions because they have to, not because they want to. If
you conclude that this opinion was unnecessary, or not worth the time it took to peruse it, I
apologize. I believe you have been forced to read what should have been an unpublished summary
order based upon the briefs filed and the issues raised therein, or I should say, not raised therein.
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APPENDIX
BRIEF AND ARGUMENT FOR DEFENDANT-APPELLANT
II.
Because the loss of crucial prosecution evidence renders the
record insufficiently complete to permit full and proper review,
the defendant has been deprived of his constitutional right to a
direct appeal of his conviction for driving under the influence of
alcohol. The conviction must therefore be reversed and the
cause remanded for a new trial on that charge.
Because the loss of a crucial prosecution evidence renders the record insufficiently
complete to permit full and proper consideration the claim that the defendant raised in his post-
trial motion - that he was not proved guilty beyond a reasonable doubt (C33) - the defendant has
been deprived of his constitutional right to a direct appeal. His conviction for driving under the
influence of alcohol must therefore be reversed and the cause remanded for a new trial.
In finding the defendant guilty of driving under the influence of alcohol, the trial judge
referred to testimony and a video of the incident. (C26) The video cannot be found, according to
an affidavit by the Kendall County Circuit Court Clerk. [Appendix at A16]
The issue of whether the Defendant has been denied his right to appeal as a result of an
incomplete record presents only a question of law, and is therefore subject to de novo review. See
People v. Coleman, 183 Ill. 2d 366, 387 (1998).
The Illinois Constitution guarantees defendants convicted of criminal offenses a right to
direct appeal. Ill. Const., Art. VI § 6. An indigent defendant who pursues a direct appeal is
entitled to a free transcript of the trial court proceedings. Supreme Court Rule 607(b). See also
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Griffin v. Illinois, 351 U.S. 12, 17-19 (1956). Moreover, "[t]he State must furnish a record of
sufficient completeness to permit proper consideration of [the defendant372 U.S. 487, 499
(1963)). Accord, Mayer v. City of Chicago, 404 U.S. 189, 194 (1971); People v. Hopping, 60
Ill. 2d 246, 251-252 (1975); People v. Johnson, 327 Ill.App.3d 252, 258 (4th Dist. 2002); People
v. Malley, 103 Ill.App.3d 534, 536 (3rd Dist. 1982).
In some cases, a bystanderMayer,
404 U.S. at 194; Hopping,60 Ill.2d at 253; People v.Ramos, 295 Ill.App3d 522, 525-526 (1st Dist.
1998); Luke, 323 Ill.App.3d at 139. However, that will not always be the case. "[W]here the
grounds on appeal... make out a colorable need for a complete transcript, the burden is on the
State to show that only a portion of the transcript, or an 'alternative< will suffice for an effective
appeal on those grounds." Mayer, 404 U.S. at 194. Accord Ramos, 295 Ill.App.3d at 526; People
v.Seals,14 Ill.App.3d 413, 414 (1st Dist. 1973); Luke, 323 Ill.App.3d at 139; Malley, 103
Ill.App.3d at 536.
Here, an Agreed Statement of Facts relates the substance of the trial testimony, but the
video, which the judge referred to in his finding of guilt (C26), is missing, despite efforts to locate
it. Your Honors granted appellate counsel33 Ill. 2d 616
(1966) (remanded for new hearing on defendant