2022 IL App (2d) 210305-U No. 2-21-0305 Order filed July 20, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellant, ) ) v. ) No. 18-CM-2870 ) CURTIS BOOTHE, ) Honorable ) Keith A. Johnson, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Justices Birkett and Brennan concurred in the judgment.
ORDER
¶1 Held: (1) We have jurisdiction over the State’s appeal, as the trial court’s exclusion of the complaining witness’s cell-phone audio recordings had the effect of suppressing evidence. (2) The trial court’s exclusion of audio recordings, disclosed to defendant less than two business days before trial, was not an abuse of discretion.
¶2 The State appeals the trial court’s discovery-sanction order that barred from evidence audio
recordings from the complaining witness’s cell phone. The State contends that (1) no discovery
violation occurred, because it was not required to produce the recordings; and (2) if there was a
discovery violation, the exclusion sanction was unduly harsh because defendant had ample time
to review the relatively short recordings before the scheduled trial, or the court could have granted 2022 IL App (2d) 210305-U
a short continuance. Though the State frames it differently, the ultimate issue presented in this
appeal is whether the court abused its discretion in barring the late-tendered audio recordings.
Because we find no abuse of discretion, we affirm the trial court’s judgment.
¶3 I. BACKGROUND
¶4 On October 28, 2018, the State charged defendant, Curtis Boothe, with two counts of
domestic battery (720 ILCS 5/12-3.2(a)(1), (a)(2) (West 2018)), Class A misdemeanors, arising
from an altercation with the complaining witness. Defendant was released on bond, and, on
October 30, 2018, he filed a discovery motion and a speedy trial demand. In response to the
discovery motion, the State tendered copies of police reports and an incomplete recording of the
complaining witness’s 911 call. The police reports, which are not in the appellate record,
apparently indicated that the complaining witness made with her cell phone two audio recordings
of the moments leading up to and including the altercation.
¶5 The matter was continued by agreement on several occasions until December 15, 2020. On
that date, defendant reasserted his speedy trial demand and objected to any further continuances.
The written order entered after the hearing stated, “Discovery issues *** are considered either
waived, withdrawn[,] or otherwise resolved by the setting of the matter for trial[.]” The trial court
set the trial date for February 25, 2021.1 On that date, the court noted that, due to the COVID-19
1 At the time, due to the COVID-19 pandemic, an administrative order provided that trials
were to commence at 1:30 p.m. on Thursdays, with jury selection to begin the following Monday,
Tuesday, or Wednesday. In re COVID-19 Criminal Jury Trial Procedures, Kane County Cir. Ct.
Crim. Div. Admin. Order (eff. July 1, 2020), https://cic.countyofkane.org/Admin%20Orders/
Criminal%20Division/Criminal%20Jury%20Trial%20Procedures%20Amended%E2%80%8B%
-2- 2022 IL App (2d) 210305-U
pandemic, it was not holding jury trials. The court rescheduled the trial for April 29, 2021. On that
date, the State acknowledged that, due to its lack of diligence, it had failed to subpoena the
complaining witness and requested a continuance because the complaining witness had family
obligations and was not certain she could appear. The court denied the State’s request. The State
then told the court it was ready for trial, notwithstanding its failure to subpoena the complaining
witness and her potential inability to appear. The court noted that it could not find the case ready
for trial because the complaining witness was not under subpoena. Defendant moved to dismiss
based on the State’s lack of diligence. The court denied the motion and rescheduled the trial for
May 13, 2021. See 725 ILCS 5/114-4(e) (West 2020).
¶6 On May 13, 2021, both parties answered ready. The State moved to admit the 911 recording
that it had previously tendered. The State informed the court that the recording was incomplete
and that the Aurora Police Department reported that it had no additional 911 recordings. As a
discovery sanction, the court barred the State from using the 911 recording. The State represented
that discovery was otherwise complete, and the court continued the trial to May 17, 2021. Though
both parties again answered ready, the trial did not proceed, because of pandemic restrictions.
20eff.%207-1-2020.pdf. On those Thursdays, the trial court was required to determine whether the
case was ready for trial, by determining in part whether nonprofessional (as opposed to
professional witness, i.e. police officers, lab personnel, medical personnel, etc.), material witnesses
had been subpoenaed. If the court determined the case was ready, it would notify the presiding
judge of the criminal division, who would evaluate and prioritize the ready cases and devise a trial
schedule for the following Monday, Tuesday, and Wednesday.
-3- 2022 IL App (2d) 210305-U
Thus, the case was continued to June 3, 2021, for trial, and the court again entered a written order
stating that any discovery issues were considered waived, withdrawn, or resolved.
¶7 In the meantime, on May 26, 2021, defendant filed another motion to dismiss, this time on
speedy trial grounds.
¶8 In the afternoon on June 2, 2021, the complaining witness emailed to the State the cell
phone audio recordings that were referenced in the earlier-tendered police report. On June 3, 2021,
the parties appeared and presented argument on defendant’s speedy trial motion. Because the
pandemic necessitated the delay, the court denied the motion.
¶9 The parties answered ready for trial. Defendant, however, also orally moved to exclude the
audio recordings, noting the State had tendered them “during the lunch hour.” The State asserted
it had not previously received the recordings and had not been able to listen to them until the
morning of June 3. According to the State, the first recording was about 90 seconds long and
consisted of an argument between defendant and the complaining witness. The second recording
was about nine minutes long and consisted of more argument between them. The State asserted
that, in the last “couple of seconds” of the longer recording was “when the defendant allegedly
grab[bed] the phone out of the complaining witness’s hand[,] which [wa]s the underlying nature
of the domestic battery.”
¶ 10 Defense counsel said that he had listened to the recordings but had not “had a chance to
think about *** how [he] would want to use them.” His “main concern” was “the late nature of
these being turned over, especially *** when they[ were] mentioned in the police report and when
[he] asked the State for them on January 1st of 2020, 17 months ago.”
¶ 11 The State clarified that the only portion it intended to use at trial was the “last five seconds
where there is a shuffling on the phone where the defendant allegedly grabs the phone out of [the
-4- 2022 IL App (2d) 210305-U
complaining witness’s] hand.” The State asserted it turned over the recordings as soon as it
received them as part of its ongoing discovery obligations.
¶ 12 The trial court agreed that the State was not at fault for the late disclosure but nevertheless
barred the recordings. On the State’s motion, the court continued the case to June 7, 2021, for trial.
¶ 13 On June 4, 2021, the State orally moved to reconsider. The State argued its late disclosure
of the recordings did not amount to a discovery violation, because the late disclosure was not
caused by its willful actions. It did not conceal the recordings, which were mentioned in the police
report. Further, the State had twice requested the recordings from the police, who each time replied
that no such items were in evidence. Moreover, the recordings were in the possession of the
complaining witness, and it forwarded the recordings to the defense “almost instantly” after it
received them. The State also asked the court to reconsider the sanction imposed. It noted the
longer recording was just nine minutes long, the State intended to introduce only about a 15- to
30-second portion of that recording, and, therefore, the defense had adequate review time before
trial began on June 7, 2021, i.e., the second business day after its disclosure. If that time were
deemed inadequate, the court could grant a continuance.
¶ 14 Before allowing defense counsel to respond, the court asked, “doesn’t discovery have to
be closed at some point?” *** [D]on’t we have to draw a line in the sand at some point where we
say[,] okay, discovery is complete, it’s done[?]” The State responded that applicable case law did
not require barring evidence in such circumstances, unless the late disclosure was willful or made
in bad faith.
¶ 15 Defense counsel responded that, although the State did not act in bad faith, it had a duty to
attempt to obtain the recordings from the complaining witness, particularly because they were
referenced in the police reports tendered in discovery. According to the defense, the State could
-5- 2022 IL App (2d) 210305-U
have asked the complaining witness whether she had the recordings but failed to do so. Nor did
the State ever tell counsel it had requested the recordings from the police, who responded they did
not have them. Counsel reiterated he had specifically requested the recordings and assumed they
did not exist because they were never tendered. Their late disclosure was a surprise, hoisted on the
defense on the eve of trial, which required an adjustment in its strategy. Counsel contended that a
continuance would not be a sufficient remedy, because (1) the case was already more than two
years old and (2) the State should not force defendant to choose between having time for an
adequate review of discovery and his right to a speedy trial.
¶ 16 The trial court denied the motion to reconsider. The court noted that its trial-setting orders
contained language stating that discovery issues are considered waived, withdrawn, or resolved by
the setting of the matter for trial, which it interpreted to mean that discovery should be completed
as of that date, subject to limited exceptions, such as Brady material. In fact, it found discovery
should be closed when a matter is set for trial. The court also noted that the State had thrice
answered ready for trial without the recordings and had previously stipulated it was not diligent
by failing to subpoena its complaining witness. The court agreed with the parties that the State did
not act in bad faith and attempted to obtain the recordings from the police. However, when the
police responded they did not have the recordings, the State, if it wanted to use the recordings,
should have “done the next thing of going to the complaining witness” and asking for them,
especially since the complaining witness was apparently cooperative and had been in court when
the State answered ready. Further, the court noted, defendant had asserted his speedy-trial rights
and commented that it would not be fair, under the circumstances, to continue the trial yet again
over that demand. The court also disagreed with the State’s position that, as long as it discloses
-6- 2022 IL App (2d) 210305-U
evidence as soon as it receives it, it could be used, because, again, discovery has to be completed
at some point. The State filed a certificate of impairment and a notice of appeal.
¶ 17 II. ANALYSIS
¶ 18 A. Jurisdiction
¶ 19 Preliminarily, defendant contends that we lack jurisdiction because the trial court’s
imposition of a discovery sanction did not amount to the suppression of evidence. The State may
appeal in only certain limited circumstances in a criminal case. The State may appeal “from an
order or judgment the substantive effect of which results in *** suppressing evidence.” Ill. S. Ct.
R. 604(a)(1) (eff. July 1, 2017). Defendant argues that the recordings would have had “little to no
impact on the State’s ability to prosecute the case,” given that the State had previously declared
itself ready for trial without the recordings. Also, the court’s ruling did not prevent the evidence
from being heard by the jury, as the State could adduce the same information directly from the
complaining witness.
¶ 20 Under Rule 604(a)(1), the State may appeal a suppression order “where the State certifies
that the suppression substantially impairs the State’s ability to prosecute the case.” In re K.E.F.,
235 Ill. 2d 530, 537 (2009). Evidence is “suppressed” within the meaning of Rule 604(a)(1) when
the trial court’s order “prevents [the] information from being presented to the fact finder.” People
v. Drum, 194 Ill. 2d 485, 492 (2000). We have found jurisdiction under Rule 604(a)(1) to review
an order barring evidence as a discovery sanction in nearly identical circumstances. See People v.
Rubino, 305 Ill. App. 3d 85, 87 (1999).
¶ 21 Defendant cites K.E.F., which is distinguishable. There, the State, for reasons that “def[ied]
comprehension,” attempted to introduce a witness’s prior statement without questioning the
witness about the substance of that statement. K.E.F., 235 Ill. 2d at 539. When the trial court
-7- 2022 IL App (2d) 210305-U
refused to permit this, the State attempted to take an interlocutory appeal under Rule 604(a)(1).
The supreme court, however, dismissed the appeal, finding the trial court did not “suppress” the
evidence but merely required the State to comply with the statutory requirements for admission.
Id. at 540; see 725 ILCS 5/115-10(b)(1) (West 2018). The court noted that “admissibility of the
evidence in question was a matter entirely within the State’s control.” K.E.F., 235 Ill. 2d at 540.
Thus, “the sole impact of the circuit court’s order is on the means by which the information is to
be presented. That is not suppression of evidence.” (Emphasis in original.) Id. The court
distinguished Drum, where the trial court’s order completely barred the prosecution from
introducing the witnesses’ prior testimony. K.E.F., 235 Ill. 2d at 538-40.
¶ 22 K.E.F. relied on People v. Truitt, 175 Ill. 2d 148 (1997). In Truitt, the State attempted to
avail itself of a statute purporting to authorize the admission of chemical test results through a
written report without the need to call the chemist who conducted the test. Id. at 149 (citing 725
ILCS 5/115-15 (West 1994)). The trial court declared the statute unconstitutional and required the
chemist to testify for admission of the report. Id. at 150. The supreme court dismissed the State’s
Rule 604(a)(1) appeal, holding that the trial court did not “suppress” the evidence but merely
required the State to call the chemist who performed the test to secure its admission. Id. at 152-53.
¶ 23 In Drum, by contrast, the trial court completely barred two witnesses’ prior testimony.
Drum, 194 Ill. 2d at 487. The supreme court concluded that the order’s substantive effect was to
bar the use of that testimony, regardless of whether the order was characterized as “ ‘excluding’ ”
or “ ‘suppressing’ ” the testimony. Id. at 491.
¶ 24 Defendant argues that K.E.F. and Truitt stand for the proposition that the State may not
appeal under Rule 604(a)(1) if it could present the same information to the jury in some other way.
Defendant asserts that, as in K.E.F., the State “had the option of presenting live testimony to secure
-8- 2022 IL App (2d) 210305-U
the admission of the information it sought to introduce” (K.E.F., 235 Ill. 2d at 540). But in K.E.F.
and Truitt, the live testimony would have allowed the State to introduce the precise evidence it
wanted: the witness’s prior statement in K.E.F. and the chemist’s report in Truitt. In other words,
both the live testimony and the underlying evidence would have been admissible. In neither case
would the live testimony have been in lieu of the underlying evidence. The present case is more
like Drum: the court’s ruling meant that no amount of live testimony would secure the admission
of the recordings. What matters is that the State was barred from presenting the recordings
themselves; it is irrelevant that the State could have presented the recordings’ substance through
some other evidentiary source. Thus, the order was appealable under Rule 604(a).
¶ 25 Defendant further argues that “the State’s readiness to proceed to trial without the
recordings on three occasions fatally undermines the State’s position” and “that the trial court’s
decision to bar the recordings ‘substantially impairs the People from further successful
prosecution’ of this case.” However, we must decline defendant’s invitation to evaluate the State’s
representations in its certificate of impairment. As our supreme court has explained:
“ ‘Our intention in requiring this certification is not to formulate a standard by which courts
may determine the appealability of a particular order. *** [T]hat would indeed be a heavy
burden, one which we do not believe justified by the marginal diminution in the number of
appeals which we anticipate such a procedure would produce. Instead, we rely solely upon
the good-faith evaluation by the prosecutor of the impact of the suppression order on his
[or her] case.’ ” People v. Keith, 148 Ill. 2d 32, 39-40 (1992) (quoting People v. Young, 82
Ill. 2d 234, 247 (1984)).
¶ 26 Even if we could create an exception to this rule, we are unpersuaded that the admittedly
unique facts of this case warrant it. To “impair” means “to damage or make worse.” Merriam-
-9- 2022 IL App (2d) 210305-U
Webster’s Collegiate Dictionary 580 (10th ed. 2001). Thus, the exclusion need only damage the
State’s case, not destroy it completely. It is entirely consistent for the State to have been ready to
proceed to trial without the recordings and yet, upon reviewing them, contend that excluding them
would damage its case (which defendant implicitly acknowledged by moving to exclude them).
¶ 27 B. The Order Excluding the Recordings Was Not An Abuse of Discretion
¶ 28 The State contends that the trial court erred by barring the recordings from evidence, where
the State did not commit a discovery violation. The State maintains that, because defendant was
charged with a misdemeanor, he was entitled to only limited discovery, which did not encompass
the recordings at issue. See People v. Kladis, 2011 IL 110920; People v. Schmidt, 56 Ill. 2d 572
(1974). Further, even if the recordings were otherwise discoverable, the State contends that it had
no obligation to turn over material not in its possession or control.
¶ 29 We need not decide whether the recordings were discoverable under Kladis and Schmidt,
because, here, the State treated this material as if it were discoverable when it tendered the
recordings to the defense. And we need not decide whether the State’s late disclosure or purported
lack of diligence in obtaining the recordings was a discovery violation. Here, because we may
affirm on a different basis: the trial court’s order barring the evidence was a proper exercise of its
inherent discretion to control the proceedings and to ensure defendant’s right to a fair trial. See
People v. Greco, 204 Ill. 2d 400, 414 (2003) (appellate court may affirm on any basis supported
by the record).
¶ 30 It is well settled that “[a] trial court has the inherent authority to control its docket and to
prevent undue delays in the disposition of cases caused by a party’s abuse of the procedural rules.”
People v. Leon, 306 Ill. App. 3d 707, 715-16 (1999). An abuse of the rules need not necessarily be
willful or intentional. See People v. Heinzmann, 232 Ill. App. 3d 557, 560-61 (1992). The court’s
- 10 - 2022 IL App (2d) 210305-U
authority includes the power to impose sanctions, including the dismissal of the case, to ensure
that a defendant obtains a fair trial and to compel compliance with its discovery orders. Leon, 306
Ill. App. 3d at 716. Because an order imposing a sanction is a matter of the trial court’s discretion,
we review the court’s order for an abuse of that discretion. An abuse of discretion occurs when no
reasonable person would take the court’s position. People v. Guerrero, 2021 IL App (2d) 190364,
¶ 62.
¶ 31 We conclude the trial court did not abuse its discretion by barring the State from using the
audio recordings. The record shows that the audio recordings were referenced in the police reports
that were tendered in discovery, and, in January 2020, the defense specifically requested those
recordings from the State. In response to that request, the State inquired with the police and was
twice told that they did not have the recordings in their possession but never told the defense. The
State took no other action to obtain the recordings, such as the minimal step of contacting an
apparently cooperative witness who had twice been in court when the State answered ready, and
proceeded for the next 17 months as if the recordings did not exist and were not vital to its case.
Indeed, on three occasions, the State answered ready for trial before knowing the recordings were
even available.
¶ 32 Further, the record shows that, on December 15, 2020, and twice thereafter, the court
entered a written order that stated, “Discovery issues *** are considered either waived,
withdrawn[,] or otherwise resolved.” We agree with the trial court’s assessment that, though
perhaps inartfully drafted, this provision meant that discovery had been completed, and we agree
with its sentiment that, at some point, discovery must be closed except in compelling
circumstances, such as the disclosure of Brady material. This was consistent with the State’s
representation, at the May 13, 2021, hearing, that discovery was complete.
- 11 - 2022 IL App (2d) 210305-U
¶ 33 Moreover, this relatively simple misdemeanor case (the parties intended to present the
testimony of only four or five different witnesses) had been pending for more than 31 months
(albeit during the COVID-19 pandemic). During the last six months of that time, defendant had
consistently asserted his speedy-trial rights and answered ready for trial, and the State’s lack of
diligence directly caused some of that delay.
¶ 34 Additionally, defendant had lost his job and some property as a result of the delays in the
case and his bond conditions. He was understandably suffering anxiety from having this case
hanging over his head. To be sure, defendant could have requested a continuance when the State
tendered this evidence, literally on the eve of trial for which he had been ready for almost six
months. However, we, like the trial court, do not believe defendant was required to further
compromise his speedy-trial rights so that he could do so.
¶ 35 Nor can we agree with the State’s position that defendant did not need any additional time
to review the recordings and adjust his trial strategy. The State failed to include the recordings in
the record on appeal, and we are therefore unable to assess them, notwithstanding the State’s
representation to the trial court that “everything in that recording is verbatim in the witness’s
written statement.” Any doubts arising from the incompleteness of the record must be resolved
against the State. Leon, 306 Ill. App. 3d at 714.
¶ 36 Under the unique circumstances of this case, we conclude the trial court did not abuse its
inherent discretion to control its docket by excluding the audio recordings at issue. In reaching this
conclusion, we note it is consistent with the purpose of discovery, which is to ensure a fair trial by
eliminating surprise (see e.g., People v. Sutton, 349 Ill. App. 3d 608, 618-19 (2004)), and we
emphasize that the trial court, and not the parties, is in control of the docket and may, under
circumstances like those present here, exclude evidence to ensure a defendant receives a fair and
- 12 - 2022 IL App (2d) 210305-U
speedy trial. Leon, 306 Ill. App. 3d at 716. Here, the trial court conscientiously considered the
circumstances and determined the defendant should not have been required to compromise his
speedy-trial rights in favor of the opportunity to review late-disclosed evidence and adding further
delay to an already-stale case. In light of this record, we cannot say that determination was
unreasonable. Guerrero, 2021 IL App (2d) 190364, ¶ 62.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 39 Affirmed.
- 13 -