Opinion
No. 1-05-1763
March 31, 2008.
Appeal from the Circuit Court of Cook County, No. 04 CR 27640, Wilbur E. Crooks, Judge Presiding.
ORDER
Following a bench trial, defendant William Edwards was convicted of possession of a controlled substance and sentenced to 30 months' probation. Defendant appeals the judgment of the circuit court alleging that: (1) the circuit court erred in not quashing his arrest and suppressing evidence; (2) the circuit court abused its discretion by excluding a report to impeach a State's witness as a discovery sanction; (3) he was denied effective assistance of counsel; (4) he was entitled to a five dollar credit for each day he spent in custody prior to sentencing to offset fees imposed by the circuit court; and (5) the five dollar spinal cord fine assessed against defendant was imposed in violation of defendant's substantive due process rights. For the reasons that follow, we reverse and remand this matter for a new trial.
BACKGROUND
On October 16, 2004, defendant was arrested by the Chicago Police for possession of a controlled substance. Defendant was charged by information with possession of a controlled substance and pleaded not guilty. Counsel was appointed and defendant filed a motion to quash arrest and suppress evidence. A hearing was held on February 28, 2005, where the circuit court heard evidence and arguments from the parties.
Defendant called Jerry Sutton, a security guard in the K-9 unit who worked for Star Security and Detective Agency (Star). Sutton testified that he was assigned by Star to patrol Chicago Transit Authority (CTA) train stations and trains on October 16, 2004. Sutton stated that he was patrolling the Green line station and trains on October 16, 2004, at approximately 8:00 pm with his partner Christopher Franks. Sutton further testified that he observed defendant cross between train cars through an emergency exit with a cigarette in his mouth. Sutton and his partner approached defendant who was seated and informed him that passing through the emergency doors on a CTA train was a violation of a Chicago City ordinance. Sutton detected the odor of cannabis and asked defendant if the object in his mouth was a cannabis joint and if he had been smoking. Defendant denied that he had been smoking, but admitted that the object in his mouth was a cannabis joint. Sutton asked defendant to give him the cannabis joint and defendant complied. Sutton asked defendant if he had any other drugs is his possession and he answered yes. Sutton asked defendant if he could have the drugs and defendant gave Sutton a small, zip-lock bag of crack cocaine. Sutton requested and defendant furnished identification after which, Sutton took defendant off of the train and called Chicago Police. Sutton searched defendant prior to the police's arrival.
Chicago Police Officer Pasquell Robinson testified that he and his partner received a radio dispatch to assist CTA security at the Green Line station at 318 East 43rd street in Chicago. The officers were informed that security guards were holding a passenger for violation of a CTA ordinance. Robinson spoke to security guards who indicated that they observed defendant cross between cars through an emergency exit on a CTA train with a cigarette in his mouth. Robinson testified that Sutton reported that he and his partner detained defendant, searched him and found a marijuana cigarette, a plastic bag with suspect cannabis and a small plastic bag containing suspect crack cocaine. Robinson testified that he never saw defendant in possession of the items recovered by Sutton. Sutton gave the items to Robinson who ticketed defendant for violating the CTA ordinance and arrested him for possession of a controlled substance.
Following the evidence and argument on the motion to quash arrest, the circuit court denied defendant's motion. The circuit court found that Sutton was a security guard and "certainly is not held to the same standards as a sworn police officer." Defendant subsequently executed a valid jury wavier and was properly admonished by the court. The State and defendant, by agreement, incorporated into the record the testimonies of Robinson and Sutton. The chain of custody, inventory and chemical composition of the items recovered were stipulated to in open court. It was further stipulated that one item recovered tested positive for 0.1 gram of cocaine. The State rested.
Defendant recalled Sutton who testified that he completed a report for Star. The State objected to the defendant's reference to the report and the following colloquy occurred:
"[DEFENSE COUNSEL]: Q. And you filled out a report for your agency; is that correct?
[THE WITNESS]: A. Yes.
Q. And that's a criminal complaint record; correct?
A. It is an incident report is what they called it.
Q. Used by your agency?
A. Yes.
[ASSISTANT STATE'S ATTORNEY]: Judge, I'm going to object. There is a reciprocal motion for discovery. I have not seen a copy of this report.
[DEFENSE COUNSEL]: I can certainly show it, Judge.
[THE COURT]: Well, wait a minute. You start questioning him about a report. We are in the midst of trial, and you haven't tendered that report to the State?
[DEFENSE COUNSEL]: Judge, these are reports that I assumed they had. These are reports in the case.
[THE COURT]: You never assume anything [counsel]. You never assume. I tell that to the State and the [d]efense. Do not assume.
[DEFENSE COUNSEL]: Judge I wasn't sure whether this was tendered by the State or if I had gotten it through my own subpoenas. It is a report that is indicted no different than an arrest report.
[THE COURT]: I am imposing sanctions. I am not going to let you use it."
Defense counsel further examined Sutton regarding the timing of the stop and detention of defendant. Counsel then questioned Sutton as to whether he received a call from another officer who observed defendant smoking at a train station and alerted Sutton to his location. Sutton denied that he received a call from another officer regarding defendant. Defense counsel requested a sidebar with the court off the record and then called defendant.
Defendant testified that he boarded an inbound train headed "downtown" to meet some friends. He moved from the train car that he boarded to the adjacent train through the emergency exit because the first car was crowded. Defendant was stopped by security guards who informed him that it was illegal to cross between cars through the emergency exit and then removed him from the train. Defendant testified that he was thrown against a rail and searched at a train station. Nothing was recovered during the search, yet defendant was locked in a janitor's closet by the guards following their search. The police arrived about 30 minutes later and the security guards told police that they found drugs in defendant's pockets after removing defendant from the train and conducting a search. Defendant testified that he did not have any cigarettes or controlled substances in his possession on October 16, 2004.
On cross-examination, defendant testified that he neither knew nor ever had a conversation with either Sutton or Franks prior to this incident, but that he had seen Sutton on the train on a previous occasion. In rebuttal, the State introduced defendant's conviction for retail theft to diminish defendant's credibility.
The circuit court found defendant guilty of possession of a controlled substance. Defendant filed a motion for a new trial, which was denied. The circuit court sentenced defendant to 30 months' felony probation, 40 hours of community service and $1,274 in fees. Defendant filed this timely appeal.
ANALYSIS I. Motion to Quash and Suppress Evidence
Defendant argues that the circuit court erred in denying his motion to quash arrest and suppress evidence. Specifically, defendant contends that the circuit court should have determined that Sutton was State actor and, as a State actor, Sutton violated defendant's fourth amendment rights. Defendant claims that Sutton impermissibly changed the fundamental nature of the initial ordinance violation stop into a narcotics investigation in violation of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.Ct. 1868 (1968). We disagree. We acknowledge that, the circuit court, in deciding whether Sutton was a State actor, did not employ any meaningful analysis in the record for its decision that Sutton "certainly [was] not held to ths same standard as a sworn police officer." However, a reviewing court may affirm the circuit court's ruling for any reason appearing on the record, regardless of whether such reason was expressly noted by the circuit court in reaching its conclusion. People v. Sims, 167 Ill. 2d 483, 500 (1995). We are of the view that it is unnecessary to decide whether Sutton was an agent of the State because even if we assume that Sutton was a State actor, his actions complied with fourth amendment requirements where the nature of the encounter was consensual and defendant admitted that he had a cannabis joint in his possession in response to Sutton's question.
Even though the circuit court did not make specific findings as to nature of the encounter between defendant and Sutton, the evidence presented at the hearing shows that it was a consensual encounter that did not implicate defendant's fourth amendment protections. Illinois courts have enumerated three types of police stops: (1) arrests, which must be supported by probable cause; (2) brief investigative detentions (Terry stops) which must be supported by a reasonable, articulable suspicion of criminal activity; and (3) and encounters that involve no coercion or detention and thus do not implicate fourth amendment protections. People v. Ludemann, 222 Ill. 2d 530, 543 (2006).
Here, Sutton testified that he approached defendant initially because he saw defendant using the emergency exit to cross between cars. As Sutton walked toward the already seated defendant he smelled cannabis and saw what appeared to be a cigarette or a cannabis joint in defendant's mouth. After telling defendant that it was an ordinance violation for defendant to pass through the emergency exit, he asked defendant if he had a cigarette or a cannabis joint in his mouth. Defendant answered that it was a cannabis joint. No weapons were drawn, defendant was already seated and defendant had not been asked to stand up or otherwise move from his seat. It is well-settled that not every encounter between the police and a private citizen results in a seizure.Luedemann, 222 Ill. 2d at 544, citing: Immigration Naturalization Service v. Delgado, 466 U.S. 210, 215, 80 L. Ed.2d 247, 254, 104 S. Ct. 1758, 1762 (1984); People v. White, 221 I11. 2d 1, 21 (2006). According to Sutton's testimony at the hearing on his motion to quash, which went unrebutted, Sutton simply approached defendant and asked if the object in his mouth was a cannabis joint and defendant freely admitted that it was and turned it over to Sutton. Once defendant admitted that the object in his mouth in plain view was cannabis, probable cause for an arrest existed and Sutton was authorized to place him under arrest.
Furthermore, even if this encounter could be characterized as aTerry stop, Sutton had a reasonable, articulable suspicion that defendant possessed narcotics when he observed what appeared to be a cannabis joint in defendant's mouth in plain view. In certain circumstances, a police officer may approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. Terry, 392 U.S. at 22, 20 L. Ed.2d at 906-07, 88 S. Ct. at 1880 (1968). A police officer may stop a person for temporary questioning if the officer has knowledge of "sufficient, articulable facts at the time of the encounter to create a reasonable suspicion that the person in question has committed or is about to commit a crime." People v. Lee, 214 Ill.2d 476, 487 (2005). Here, Sutton saw defendant crossing between cars on the train with what appeared to be a cigarette or cannabis joint in his mouth and as he approached the seated defendant, he smelled a cannabis order. "While the facts supporting the officer's suspicions need not rise to the level of probable cause, they must be based on more than a mere hunch."People v. Cox, 202 Ill. 2d 462, 467 (2002). In our view, Sutton had the requisite facts to support a reasonable suspicion before asking defendant what was in his mouth. The facts Sutton articulated in his testimony at the hearing were clearly more than a mere hunch. Sutton's questioning defendant as to whether he had drugs was proper because once defendant admitted that he had a cannabis joint in his mouth, Sutton had probable cause to effect a full arrest. See People v. Walters, 256 Ill. App. 3d 231, 238 (1994) (finding that when an officer approached a vehicle and observed marijuana on the front seat of the automobile, the marijuana was in plain view the officer had probable cause to seize the contraband and place the suspects under arrest. The officers were further justified in conducting a search of the vehicle incident to the arrest, including containers the police reasonably believed might contain contraband.) Here, Sutton not only observed the cannabis in plain view, but also received confirmation from defendant that the object in his mouth was in fact cannabis. We therefore find that defendant was not deprived of his fourth amendment protections and the circuit court did not err in denying defendant's motion to quash arrest and suppress evidence.
II. Discovery Sanctions
Sanctions may be imposed for a violation of discovery rules under Supreme Court Rule 415(g) (134 I11.2d R. 415(g)), which reads as follows:
"(i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.
(ii) Wilful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court."
The imposition of sanctions for violations of discovery rules is reviewed under an abuse of discretion standard. People v. Stack, 261 Ill. App. 3d 191, 198-99 (1994). To exercise sound legal discretion, the circuit court must consider the available alternatives. People v. Foster, 271 Ill. App. 3d 562, 569 (1995). Sanctions are designed to accomplish the purpose of discovery, and the imposition of sanctions should not encroach on a fair trial. People v. Spicer, 158 Ill. App. 3d 699, 702 (1987). Excluding evidence supporting the accused's defense is an extreme sanction, applicable only in the most extreme situations.People v. Houser, 305 Ill. App. 3d 384, 391 (1999).
In People v. Levin, 207 Ill. App. 3d 923 (1991), this court considered whether barring a defense witness' testimony on a particular point as a sanction for violation of discovery rules was an abuse of discretion. There we held that the preclusion of evidence as a sanction is limited to the most extreme cases of discovery violations and, because a continuance would have cured any prejudice against the State, barring the testimony was an abuse of discretion. Levin, 207 Ill. App. 3d at 933. Sanctions should be fashioned to meet the circumstances of the case and the ultimate objective is to compel compliance with the rules, not to punish a party for his or her attorney's errors. Houser, 305 Ill. App. 3d at 391, citing Levin, 207 Ill. App. 3d at 933.
After reviewing the record and briefs on appeal, we find it important to point out that neither the parties nor the circuit court suggested that the failure to disclose the report was a willful or flagrant disregard for the rules or the circuit court's order. The record reveals that on the day court received the report at issue, a substitute assistant public defender was present and instructed by the court to share the report with the State. That assistant public defender accepted the report in open court and said she would make arrangements for it to be shared after the circuit court notified both parties that it was a report from the CTA regarding defendant's criminal activity. The substitute assistant public defender either failed to make the promised arrangements or neglected to inform trial counsel of the circuit court's instructions. Albeit an error on the part of defense counsel, this was clearly a communication error and not flagrant refusal to disclose to gain a strategic or tactical advantage. We hold that excluding the report as a discovery sanction unjustifiably punishes defendant for his counsel's error.
Furthermore, it is noteworthy that the circuit court, without considering any other sanction such as a recess or a continuance, imposed the harshest sanction possible. Although inconvenient and annoying, the court could have taken a recess or granted a continuance without impacting or inconveniencing a jury because this was a bench trial. Moreover, the one who would be most inconvenienced by delaying the proceedings was defendant who had already been in custody for more than 100 days at the time of trial. In our view, a continuance to allow the State to review the report and prepare a response to it would have been appropriate.
The State asserts that even if we conclude that it was an abuse of discretion for the circuit court to exclude the report as a discovery sanction, the error was harmless because defendant only intended to use it for impeachment and it would only attack collateral matters not relevant to defendant's guilt or innocence. We disagree. First, the State omits the fact that the report fails to make any reference to the crack cocaine allegedly recovered from defendant by Sutton according to his testimony. The crack cocaine is the basis for defendant's conviction here and is not an irrelevant detail that would normally be overlooked by the individual who discovered it when drafting his report. Second, the report is inconsistent with Sutton's testimony regarding the basis for stopping defendant and Robinson's testimony of Sutton's account of the events. There is no mention of defendant being stopped for walking between cars or even being on a train. We find this to be more than a mere attack on collateral matters of the case.
Contrary to the State's assertion that People v. Trice 217 Ill. App.3d 967 (1991) and People v. McCarthy, 213 Ill. App. 3d 873 (1991) are directly on point and should be applied to this case, we find its reliance on those cases to be misplaced. In Trice the defendant there was not allowed to use one letter containing exculpatory statements to impeach a State's witness because he "flagrantly failed to disclose" the evidence pursuant to a previous court order. However, the defendant was allowed to cross-examine the witness and impeach her on other exculpatory correspondence to the defendant. Trice, 217 Ill. App. 3d at 980. The Trice court did not deprive the defendant of the only evidence that supported the defendant's theory of the case. InMcCarthy, the circuit court held that there was no flagrant failure to disclose the evidence at issue and the violation was a communication error like the one in the instant case where another attorney was thought to have turned over the evidence. McCarthy, 213 Ill. App. 3d at 883. However, the circuit court in McCarthy allowed the parties to argue the bases for allowing or excluding the evidence and specifically held that the substance of the letter at issue was irrelevant to the issue of the defendant's guilt. McCarthy, 213 Ill. App. 3d at 883-84. In this case, the court did not hear arguments for or against excluding the evidence as a sanction and did not make a finding as to the relevancy of the report to defendant's defense.
We cannot say that this error was harmless error because Sutton's report was the only evidence that supported defendant's defense theory. Robinson never saw defendant in possession of the controlled substance and testified that Sutton told him that the substances were recovered from defendant during Sutton's search. Moreover, Robinson testified that Sutton turned over a plastic bag of cannabis which is not only absent from Sutton's report, but also his testimony. Thus, all of the evidence connected to defendant's conviction hangs on Sutton's credibility which can be attacked by the glaring omissions in the report.
Finally, we find it improper in this case to apply the wavier principal in the instant case despite the fact that defendant failed to contemporaneously object to exclusion as a sanction and include it in his post trial motion. See People v. Enoch, 122 Ill. 2d 176 (1988). The plain error doctrine, however, bypasses normal forfeiture principles and allows for a review of unpreserved error when the evidence is closely balanced or the error was so fundamental that the defendant was denied a fair trial. Herron, 215 Ill. 2d 167, 186-87. "Plain error encompasses those errors which are obvious from the record, which affect substantial rights of the accused, and which, if uncorrected, would be an affront to the integrity and reputation of the judicial system." People v. Campbell, 264 Ill. App. 3d 712, 725 (1992), citing People v. Young, 215 Ill. 2d 1, 46 (1989) (finding that "plain error may be considered where the record clearly shows that an alleged error affecting substantial rights was committed"). Here, the exclusion of the defendant's only evidence in his defense as a discovery sanction implicates his right to a fair trial. In addition, we cannot say that the evidence against defendant would be overwhelming when all properly admissible evidence is taken into consideration. There is no doubt that the case against defendant is overwhelming when viewed in the light of the improper sanction excluding the only evidence attacking Sutton's version of the events and his credibility. With the admission of the report, Sutton's testimony about how he learned of the incident is contradicted and the fact that he somehow forgot about the bags of cannabis and crack in addition to the joint which was included in the report, at least calls into question his ability to draft a report of events and his credibility.
III. Conclusion
For the foregoing reasons, we find that the circuit court's denial of defendant's motion to quash arrest and suppress evidence was proper. The circuit court's exclusion of Sutton's report as a discovery sanction was an abuse of discretion and deprived defendant of a fair trial. We note that defendant raised claims with regard to effectiveness of counsel, credit for time served, fines and fees. However, because the relief defendant seeks in his ineffective assistance of counsel claim has been granted and he will have a new trial, we need not address the remaining effectiveness or counsel sentencing issues. Accordingly, the judgment of the circuit court is reversed and remanded for a new trial.
Reversed and remanded.
O'MALLEY, J., with McBRIDE, P.J., and McNULTY, J., concurring.