People v. Toft

824 N.E.2d 309, 355 Ill. App. 3d 1102, 291 Ill. Dec. 733, 2005 Ill. App. LEXIS 159
Appellate Court of Illinois·Decided February 16, 2005·No. 3-04-0003·Published·Cited by 8 cases

Opinions

PRESIDING JUSTICE SLATER

delivered the opinion of the court:

Defendant Stuart Toft was convicted after a jury trial of disobeying a traffic signal. 625 ILCS 5/11 — 306 (West 2002). The defendant was fined $150 plus costs, and he now appeals. We affirm.

Facts

The record indicates that the defendant was issued a traffic citation for disobeying a red light in Peoria County, Illinois, on September 15, 2002. Defendant requested a jury trial and was assigned a trial date of December 10, 2002. Defendant appeared on that date and the case was continued to April 1, 2003. Defendant also states in his brief that the trial court allowed, over the State’s objection, defendant’s motion to engage in limited discovery. There is nothing in the record concerning this ruling.

Defendant next appeared in court on April 1, 2003, when, according to his brief, he had to wait 2 V2 hours for his case to be called while the judge left the courtroom twice, creating a “circus atmosphere.” According to defendant, his case was called by a representative of the State while the judge was absent. The defendant then tendered his discovery documents to the prosecutor, who refused to accept them. None of defendant’s claims are supported by anything contained in the record. Defendant’s case was continued to July 1, 2003.

The record does show that the circuit clerk received two documents from defendant on June 27, 2003: a “request to produce” seeking any video or audio tape of the traffic stop and other documents, including budget projections by the City of Peoria for 2002-03; and a set of interrogatories primarily seeking information about video recording devices in police patrol vehicles. These documents were accompanied by defendant’s written request to reset the July 1 status hearing to a later date.

According to the defendant, when he appeared in court on July 1, 2003, he again had to wait 21l<i hours in a “circus atmosphere” before his case was called by the prosecutor while the judge was absent. The prosecutor acknowledged receiving defendant’s discovery documents but indicated that the State was not obligated to respond. The case was continued to September 2, 2003. There is no record of these events, other than a docket entry indicating that defendant’s motion to continue was granted.

The next item contained in the record is a document labeled “subpoena” that is file-stamped August 18, 2003. The defendant states in his brief that he mailed this document to the Peoria police department. The information requested was the same as that sought in defendant’s request to produce.

Defendant appeared in court on September 2, 2003, at which time he contends that the judge and the assistant State’s Attorney engaged in a lengthy ex parte conversation about the subpoena. There is no record of these proceedings other than a docket entry and an order entered by the court which stated in part:

“Paragraphs 3, 4, 5, 6, 7 of defendant’s subpoena are stricken.
As to paragraphs 1 & 2, the People report that there are no video or audio recordings in existence that the People are aware of.”

The case was reset for trial at 9:15 a.m. on November 18, 2003. According to the defendant, trial did not convene until 1:30 p.m. Prior to trial, defendant states, the court did not allow the defendant or the State to participate in voir dire. During the trial, defendant asserts, the arresting officer testified that he had videotaped the incident. There is no report of proceedings or other record of these events. The record does show that the jury found the defendant guilty and that he was sentenced to pay a fine of $150 plus court costs. This appeal followed.

Analysis

Defendant raises numerous arguments in his brief concerning various aspects of the proceedings in the circuit court which he contends warrant reversal of his conviction. For example, defendant maintains that the trial judge violated the Code of Judicial Conduct, specifically Supreme Court Rule 62 (155 Ill. 2d R. 62 (judge should avoid impropriety and appearance of impropriety)) and Rule 63 (155 Ill. 2d R. 63 (judge should perform duties impartially and diligently)) by, inter alia, leaving the courtroom for more than an hour on April 1, July 1 and September 2 and by allowing the State to call cases for hearing. Of course, the defendant’s disagreement with the manner in which the trial judge runs her courtroom is not relevant to this appeal, unless it unfairly affected defendant’s trial. More significantly, as should be evident from our recitation of the facts, many of defendant’s complaints are based on events that took place dehors the record. It is an elemental rule of appellate procedure that a reviewing court is restricted to examining the record. People v. Edwards, 74 Ill. 2d 1, 383 N.E.2d 944 (1978).

With regard to those issues that could have potentially impacted defendant’s trial, such as the trial court’s purported refusal to allow defendant to participate in voir dire, no report of proceedings is contained in the record. While it appears that no transcript of the proceedings was available, the defendant did not prepare a bystander’s report (see 166 Ill. 2d R. 323(c)) nor does the record contain an agreed statement of facts (see 166 Ill. 2d R. 323(d)). Where the record is incomplete, the consequences are clear:

“This court has long held that in order to support a claim of error on appeal the appellant has the burden to present a sufficiently complete record. [Citation.] In fact, ‘[f]rom the very nature of an appeal it is evident that the court of review must have before it the record to review in order to determine whether there was the error claimed by the appellant.’ [Citation.] Where the issue on appeal relates to the conduct of a hearing or proceeding, this issue is not subject to review absent a report or record of the proceeding. Instead, absent a record, ‘it [is] presumed that the order entered by the trial court [is] in conformity with the law and had a sufficient factual basis.’ [Citation.]” Webster v. Hartman, 195 Ill. 2d 426, 432, 749 N.E.2d 958, 962 (2001), quoting Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984).

Although the inadequacy of the record in this case prevents this court from considering virtually all of defendant’s concerns, for the sake of completeness, we will briefly address each of the “issues presented for review” listed in defendant’s brief.

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People v. Toft, 824 N.E.2d 309, 355 Ill. App. 3d 1102, 291 Ill. Dec. 733, 2005 Ill. App. LEXIS 159 (Ill. Ct. App. 2005).

824 N.E.2d 309 (People v. Toft) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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People v. Toft
824 N.E.2d 309 (Appellate Court of Illinois, 2005)