DUI Case Summary: People V. Strobel

(2014IL App (1st) 130300)
No. 1-13-0300

Trial Court abused its discretion in barring testimony regarding field sobriety tests and barring the introduction of the video depicting defendant’s performance on the field sobriety tests since no audio recording of the police encounter with defendant ever existed.

            The Defendant was arrested and charged with the misdemeanor offense of Driving Under the Influence of alcohol pursuant to 625 ILCS 5/11-501(a)(2). In response to Defendant’s discovery motion, the State tendered a squad car video of the Defendant performing field sobriety tests and Defendant’s arrest. The video did not contain any audio.

            Defendant filed a “Motion in Limine and for Discovery Sanctions”. In support of the motion, Defendant stated that he issued a subpoena to the Police Department requesting all video and audio recordings taken in his case. Defendant obtained an in-squad video, but the video did not contain any audio. Defendant requested an Order to exclude any testimony, observations, and conversations from the State’s witnesses regarding events captured on the in-squad video where police obtained witness statements and evidence against Defendant that was not tendered to the defense. Defendant argued that the absence of any audio was the “destruction of evidence” of what occurred during the traffic stop, which constituted a discovery violation. Relying on People v. Kladis, 2011 IL 110920, Defendant argued that traffic stop videos of an arrest are to be preserved until final disposition of a case, and that sanctions against the State precluding the State from using the Officer’s testimony and the video evidence, may be imposed where video evidence was destroyed after it was requested. Defendant moved the trial court to enter an Order that the video and audio recording is required discovery pursuant to Kladis, grant his motion in limine to preclude testimony by the State’s witnesses regarding any matters recorded on the video that did not have audio, and allow a favorable presumption that any unrecorded audio portions of the video would have been favorable to Defendant had it been produced.

            The State argued that the audio was unavailable because the Police Officer forgot to activate the audio device in the squad car when he approached Defendant. The State also argued that unlike Kladis, which involved a video that existed but was destroyed after the discovery request, the audio portion of the video in the matter at bar never existed. Therefore, according to the State, since no audio was ever recorded, a discovery violation was impossible because there was never an audio recording in the State’s possession or control to provide to Defendant.

            The trial court ruled that the absence of audio was a discovery violation. The trial court ruled that it would allow testimony about the traffic stop up to the point of the Arresting Officer administering the field sobriety tests and any video up to that point. The trial court, noting the importance of the instruction phase of the field sobriety tests, sanctioned the State by not allowing any testimony about the field sobriety tests and by prohibiting the introduction of any video that showed Defendant’s performance of the field sobriety tests. The trial court reasoned that the introduction of video is not only to protect police and aid the State in the prosecution of DUI cases, but video is also used to protect defendants with respect to their verbal interaction with the Police and how defendants perform on the field sobriety tests. The State filed a certificate of substantial impairment and an appeal from the trial court’s sanction Order.

            On appeal, the State argued that the trial court abused its discretion when it imposed the discovery sanction barring testimony and the video of the field sobriety tests. The State argued that no discovery violation occurred because the State tendered what it possessed and controlled: the video of the incident that did not contain an audio component.

            Writing for the Appellate Court, Justice Pierce analyzed People v. Schmidt, 56 Ill.2d 572 (1974), where the Illinois Supreme Court provided for limited discovery in misdemeanor cases. The Supreme Court held that the State must furnish the defendant with a list of witnesses, any confession by the defendant, evidence negating the defendant’s guilt, and the results of a breathalyzer test.  Justice Pierce noted that pursuant to Kladis, the Illinois Supreme Court later observed that the holding in Schmidtdid not establish ““a rigid list which it believes should remain static and not take into account the fundamental changes which have occurred in law and society since that ruling””, and expanded discovery in misdemeanor cases to include any relevant video recordings made by an in-squad camera of the events leading to a defendant’s arrest.

            The Appellate Court then reviewed case law addressing the issue of discovery sanctions. Citing People v. Rubino, 305 Ill.App.3d 85, 87 (1999) the Appellate Court noted that the goals of discovery are to eliminate surprise and unfairness and to afford an opportunity to investigate. Discovery sanctions are not designed to punish and should be used to further these goals and to compel compliance. However, harsh sanctions, such as the exclusion of evidence, may be warranted where the defendant is denied a full opportunity to prepare his defense and make tactical decisions with the aid of the information that was withheld. People v. Leon, 306 Ill.App.3d 707, 713-14 (1999). When the State fails to comply with a discovery order, the “Court may order a variety of sanctions, including discovery of the previously undisclosed statement, a continuance, the exclusion of the evidence in toto, or some other remedy it sees fit.” People v. Harper, 392 Ill.App.3d 809, 821-22 (2009). The exclusion of evidence is generally not a preferred sanction because it does not further the goal of truth seeking (People v. Edwards, 388 Ill.App.3d 615, 628 (2009)) and is an appropriate sanction only in the most extreme situations and is disfavored (Harper, 293 Ill.App.3d at 821-822 (citing People v. Walton, 376 Ill.App.3d 149, 157 (2007)).

            In the matter at bar, the Appellate Court noted that the trial court resolved the motion in limine based on the trial court’s interpretation of the Supreme Court’s decision in Kladis. In Kladis, the Police Officer’s squad car was equipped with a video recording system. The defense timely requested a copy of the video recording of the traffic stop that resulted in Defendant’s arrest for the offense of driving under the influence. The Defendant made this pre-hearing request before all copies of the video recording were destroyed. As a sanction for the destruction of the relevant video recording evidence, the Kladis trial court barred the State from presenting any testimony regarding what was depicted in the video recording. The Appellate Court noted that the Illinois Supreme Court held that the trial court did not abuse its discretion by imposing this sanction based upon the circumstances involving the destruction of the video, that existed, at the time the defendant made the discovery request.

            The Appellate Court observed that in the matter at bar, no audio recording of the Police Officers’ encounter with the Defendant ever existed. The Appellate Court reasoned that Kladis does not stand as authority for imposing a sanction against the prosecution where the requested discovery material never existed. The Appellate Court reasoned that Kladis instructs that a non-due-process discovery violation may be found where the State, without bad faith, destroyed relevant evidence after being put on notice of the defendant’s request for the evidence. The Appellate Court noted that in the matter at bar, the Police Officers failed to activate the audio recording function on their in-squad video camera when they stopped the Defendant. As a result, the State tendered to Defendant everything it possessed and controlled: the video of the traffic stop without any audio. The Appellate Court concluded that there was nothing in the record to support any inference or suggestion that the Police Department or the prosecution intentionally or inadvertently destroyed any pre-existing discoverable evidence, and the trial court’s exclusion sanction punished the prosecution for something that was outside the State’s control and could not reasonably be construed as conduct that caused unfairness to the Defendant or deprived him of an opportunity to prepare his defense.

            Defendant argued that it was possible that an audio portion of the video may have assisted in his defense. The Appellate Court also noted that it was equally possible the unrecorded audio had “the potential to banish any hope of exoneration”. People v. Gentry, 351 Ill.App.3d 872, 878 (2004). The Appellate Court refused to resolve this question by pondering possibilities. The Appellate Court reasoned that it could only consider that which was certain: an audio recording of the events leading to the Defendant’s field sobriety tests and arrest never existed. Absent a showing that the State lost or destroyed the audio portion of the video, or the existence of some other factor to justify a discovery sanction, the Appellate Court stated that the trial court abused its discretion in barring testimony regarding Defendant’s field sobriety tests and in barring the introduction of video that depicted Defendant’s performance of the field sobriety tests, due to the State’s failure to produce any recording of any audio that ““presumably occurred at the time the video was created””. The Appellate Court found that the State had committed no discovery violation that supported the sanctions imposed or the exclusion of the evidence requested in Defendant’s motion in limine.

            The Appellate Court found that the trial court abused its discretion in granting Defendant’s motion and barring any testimony regarding Defendant’s field sobriety tests and prohibiting the introduction into evidence of the portion of the video that depicted the Defendant’s performance on these tests because of the lack of any audio recording.

            The Appellate Court also found that People v. Ebener, 161 Ill.App.3d 232 (1987) and People v. Taylor, 54 Ill.App.3d 454 (1977), relied on by Defendant, distinguishable from the matter at bar. In both of those cases, the evidence in question was destroyed or consumed during chemical testing. The Ebener trial court held that a discovery violation occurred and sanctioned the State by preventing the State from using the results of the scientific tests at trial.  In Taylor, after the trial court denied the defendant’s motion to exclude testimony regarding the chemical testing, he was convicted of the offense of unlawful delivery of a controlled substance. The Appellate Court reversed and remanded that matter for a new trial, finding that the defendant ““was denied due process of law and the opportunity for meaningful confrontation of the witnesses against him by the State’s unnecessary destruction of the allegedly prohibited substance which he allegedly delivered to agents of the State””. The Appellate Court noted that in the matter at bar, unlike Ebener and Taylor, the State never destroyed any evidence because no audio recording ever existed.

Reversed and remanded.

 

David B. Franks
Lake in the Hills, IL