Originally printed in the ISBA Traffic Laws and Courts Section November 2010 Newsletter
People of the State of Illinois v. Marina Kladis, No. 1-09-0686. Discovery sanctions in a misdemeanor DUI case can bar testimony of an arresting officer when a videotape has been discovered
The 1st District ruled that the trial court did not abuse its discretion in partially barring the testimony of the arresting officer in a misdemeanor DUI as a sanction for the destruction of the videotape after the State was served with defendant’s Supreme Court Rule 237 written notice to produce the videotape. This notice was filed by the defendant prior to the first court date (about five days after the defendant’s arrest). People v. Kladis, No. 1-09-0686 (2010) at 3. Unfortunately, and unbeknownst to the State, the videotape had been destroyed in the wee hours of the morning of the first court date, approximately 17 hours before the parties were due to appear in court. Kladis at 2.
Defendant Marina Kladis’ motion was granted for sanctions against the State for destroying the in-car videotape of her arrest for DUI. She was charged with violating section 11-501(a) (2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a) (2).
In this matter, a Statutory Summary Suspension (SSS) was filed and scheduled for the first court date where the parties learned that there was an outstanding videotape that was not available for the defendant prior to the SSS Hearing. The State agreed to mail discovery, including the videotape to the defendant and the SSS Hearing was continued for two weeks by agreement. Discovery was mailed but it did not include a videotape. At the agreed date for the SSS Hearing the State tendered two pages of business records to defendant from the police department indicating the requested videotape of the defendant had been purged. Kladis at 5.
Defendant then filed an oral motion for sanctions and was granted leave to file a written motion. At the hearing on the Motion for Sanctions, solely on the SSS Petition the court stated “the trial assistants have so much work to do and so many cases to handle, that I don’t find any bad faith here.” Still the court ruled that the State received notice to produce based on the Rule 237 request, which the court construed as a motion for discovery. Therefore the destruction of the videotape was a discovery violation. The court recognized it had discretion in determining the appropriate sanction and ruled that no testimony would be allowed that would be on the videotape. The court did specify that the arresting officer could testify about his observations anytime prior to five seconds before the actual stop and any actions by defendant after being formally arrested. Kladis, at 5-6. The petition to Rescind Statutory Summary Suspension was granted. The defendant had a subsequent court date for a hearing on defendant’s motion for sanction on the criminal case, motion to quash the arrest and suppress evidence, and trial.
One of the difficulties facing practitioners stems from the dual nature of a DUI case. A DUI offense has both a criminal component and the quasi-civil matter of driving privileges that is addressed separately through a Statutory Summary Suspension Hearing.
At the Motion for Sanctions in the criminal case the parties stipulated that the officer’s testimony would be the same as it was at the Motion for Sanctions and Petition to Rescind Statutory Summary Suspension”. The court then granted the defendant’s Motion for Sanctions in the criminal case.
So my ruling will be exactly the same. I have no evidence different here, that the Motion for Sanctions pertaining to the case in chief will be granted, the video may not be used, or any testimony regarding what is on the video pertaining to just before the officer stopped the defendant and the time that the defendant was placed in the squad car, which would mean anything that happened on the street prior to her being placed in the squad car. If there was something that she did in the squad car or anything else after that when she got out of the squad car at the police station, or anything that happened in the police station pertaining to this matter which is relevant it will be admitted into evidence.
Kladis at 7.
The State appealed on the basis that the trial court’s sanction was an abuse of discretion. They relied primarily on case law discussing whether the destruction of evidence violated due process. Specifically, Illinois v. Fisher, 540 U.S. 544, 548-659, 157 L. Ed 2d 1060, 1066-1067, 1254 S. Ct. 1201, 1202-1203(2004), where the court ruled that when evidence is potentially useful, but not material exculpatory evidence, then failure to preserve does not violate due process without a showing of bad faith on the part of the State. That argument was weighted by the court against Illinois Supreme Court Rule 415 (g) (1).
In this case the court rejected the State’s reliance on there being a discovery violation based on due process. This was in large part because the trial court did not base its ruling on due process but on The Rule 237 written request to produce the videotape was deemed a motion for discovery.
In Illinois, a discovery violation under Illinois Supreme Court Rule 415(g) (1) only requires a showing that “a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto.” Kladis at 8.
One of the challenges faced by the Court in rendering its decision was how much discovery a defendant is entitled to receive in a misdemeanor case. The majority of cases on point regarding discovery sanctions were felony matters, e.g. People of the State of Illinois v. Koutsakis, 255 Ill. App. 3d 306(1993), People of the State of Illinois v. Kizer, 365 Ill. App. 3d 949, 959-61 (2006). Kladis at 14.
The scope of discovery in a misdemeanor case in Illinois is limited pursuant to People v. Schmidt, 56, Ill. 2d572 (1974). The First District went on to state, “Considering the limited scope of the discovery the Sate is required to furnish under Schmidt in a misdemeanor case, we find no reason to create a ‘material and exculpatory’ prerequisite in order for the defense to obtain the videotape at trial for impeachment of the prosecution witness who prepared it.” Kladis at 19.
Practitioners may wish to heed the suggestions noted by the court in its decision. “We caution, however, that to eliminate any question about whether the State is required to preserve and produce evidence, a signed protective order from the judge could be obtained and then served on the State at the same time the Rule 237 request is served on the State.” Kladis at 19. Additionally, the court also makes clear what types of sanctions a defendant can request. “[T]hat a sanction should be proportionate to the magnitude of the discovery violation.” Kladis at 27.
Defendant did not seek dismissal of the misdemeanor criminal case. The trial court did not completely bar the officer’s testimony and did not dismiss the charges in the criminal case; instead, consistent with the principles articulated in Schambow, Petty, Camp, Koutsakis, and Johns, the court entered a sanction that was limited and proportionate to the magnitude of the discovery violation. The entire testimony of Office Gaske was not barred. The court only barred Officer Gaske from testifying regarding matters on the videotape, while testimony regarding defendant’s driving or other conduct not on the videotape would be admissible.
Kladis at 29.
Kladis provides a roadmap for practitioners to avoid the destruction of discovery as well as how to ask the court for relief, via sanctions, in the event the discovery is inadvertently destroyed.
