author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MERLE A. BUERKETT, Defendant-Appellee.
    Fourth District
    No. 4-90-0076
    Opinion filed August 9, 1990.

      Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    James Alexander Pappas, of Springfield, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a hearing on defendant’s petition to rescind the statutory summary suspension of his driver’s license, the trial court granted the petition on the ground that defendant was misled into believing he had a right to have a lawyer present before submitting to a breathalyzer or blood test. On appeal, the State challenges the court’s decision as manifestly erroneous. We agree and reverse.

The pertinent facts are as follows. In November 1989, Pleasant Plains police officer Larry Cave stopped a speeding vehicle. It swerved left and then right, and ran off the road before coming to an abrupt stop. Cave determined that the driver, defendant, Merle Buerkett, smelled strongly of alcohol. Defendant had difficulty retrieving his driver’s license from his person for Cave. When asked if he had been drinking, defendant replied that he had “had enough to get home.” His speech was slurred. When Cave learned through radio transmission that defendant’s driver’s license had expired, Cave requested a backup.

Illinois State Trooper Jack Hageman responded and was present when Cave requested defendant to exit the vehicle to perform field-sobriety tests. Defendant refused, stating that he was “not going to do anything until my attorney gets here.” Prior to that remark, neither officer had made any mention of any right defendant might have to contact counsel. Cave advised defendant that he did not have the right to communicate with his lawyer before taking the field-sobriety tests. Defendant continued to refuse to get out of the vehicle. Cave then opened the vehicle’s doors and observed two cans of beer near the driver’s seat.

After further unsuccessful efforts to coax defendant from the vehicle, Cave tried to pull him out by taking hold of defendant’s left arm and right shoulder. However, defendant grabbed the steering wheel, and Cave could not force him to let go. Then Hageman ordered defendant out of the vehicle, but defendant continued to refuse. Ultimately, the two officers together were able to forcefully remove defendant from his vehicle. In the process, defendant was placed facedown on the pavement and handcuffed. He sustained scratches to his right cheek and cuts to his lips.

From the time defendant was removed from his van, his behavior varied from abusive, angry, and cursing at one moment, to polite and near tears the next. After defendant was placed in a squad car, he became violent and kicked the floorboard and dash.

Defendant was transported to the Sangamon County building, where he was asked to consent to a breathalyzer test. At the county building, defendant’s response continued to be as it was on the highway, namely, he would consent to nothing until he had seen his attorney. Cave and the other police officers present at the county building informed defendant that he did not have the right to have his attorney present or to consult with his attorney before taking the breathalyzer test. They also told him that his insistence on speaking with his attorney before taking the test would be considered to be a refusal by him to take the test. Cave testified that he warned defendant of the consequences of that refusal.

Because of the scratches to the defendant’s mouth, Cave was concerned whether the defendant had blood in his mouth which could skew the results of the breath test. He examined defendant’s mouth to see if any blood was present, but did not find any. He consulted on this point with Illinois State Trooper Sturgeon, who was also present in the county building. Sturgeon examined defendant’s mouth for blood, and agreed with Cave that there was no reason why an accurate blood-alcohol reading could not be obtained from a breathalyzer test.

We specifically note that none of this discussion concerning possible blood in defendant’s mouth as an impediment to the breathalyzer test came from defendant himself. His refusal to cooperate with the officers had nothing to do with the presence of any blood in his mouth; instead, he simply continued to refuse to do anything until he first consulted with his attorney. Cave testified that he raised with defendant the subject of a blood test instead of a breath test, but defendant’s response remained as before.

Cave testified that when defendant first brought up the subject of his consulting an attorney while they were still on the highway, Cave told defendant that he could speak to an attorney at the county building, not out on the highway. Cave also testified that he later advised defendant that he had a right to counsel before providing evidence of a testimonial or communicative nature, but Cave maintained that he did not tell defendant that his right to counsel extended to a request to submit to breath or blood tests. In fact, the defendant in his own testimony at the hearing specifically denied that Cave at any time told him that he had a right to counsel.

Defendant corroborated Cave’s and Hageman’s testimony that defendant told the officers on the highway that he wanted to have his attorney present before any sobriety tests were administered. He also admitted that he refused to get out of the car, claiming that the officers beat him to get him out.

Defendant claimed that no officer read him any warnings regarding the breathalyzer test or the consequences of his refusal to take the test. Defendant further testified that he told the officers he wished to have his attorney present before the test was administered. Defendant testified that he never refused the test, claiming instead that he said he would take it, but only after his attorney was present. At no time did defendant testify that he had been misled in any way, by any representations made to him, by any of the officers regarding when or where he could have an attorney present.

Despite the absence of any such claim, the trial court found confusion on defendant’s part. The court stated it was of the opinion that the defendant was told that he had the right to have a lawyer present when he did not in fact have that right. Finding that Cave had misstated the defendant’s rights, the court concluded as follows:

“I believe that the defendant was misled and he felt that he had a right to have a lawyer present for questioning and that questioning included a breathalyzer or a blood test.”

The court then granted the petition for rescission of statutory summary suspension on the ground that defendant did not refuse to take the breathalyzer test. On this record, we find that this decision was clearly and manifestly erroneous.

From the moment defendant was stopped on the highway, the officers were essentially confronted with an abusive drunk. Defendant’s fixation on having an attorney present before he consented to do anything, including even getting out of his vehicle, arose solely from his own confused thinking; the officers at the scene did nothing to suggest that defendant had a right to consult with counsel before submitting to any tests. Indeed, they maintained throughout that defendant was repeatedly told that he had no right to consult with an attorney before doing what the officers requested. Defendant not only did not contradict this testimony, he expanded upon it as follows:

“A. [Defendant]: *** [The officers] approached my Bronco and asked me to get out and I asked them why.
Q. [Defense counsel]: Okay, and what was Officer Cave’s response to that?
A. Officer Hageman was the one that responded. He wanted to give me a sobriety test and I said that I would like to have my attorney present before any sobriety tests are administered.
Q. Are you talking field sobriety tests?
A. He just said sobriety test. He did not tell me what type.
Q. Alright, and when you said that to him, what was his response to you?
A. You don’t have that right.
Q. Okay, did Officer Cave at anytime say to you that night that you had a right to an attorney"!
A. No.
Q. What did Officer Hageman then say to you?
A. They said get out of the truck, and I said, once again, I would like to have my attorney present before any sobriety tests are administered.” (Emphasis added.)

Section 11 — 501.1(c) of the Illinois Vehicle Code (Code) provides “that a refusal to submit to [a breathalyzer] test will result in the statutory summary suspension of such person’s privilege to operate a motor vehicle.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1(c).) Section 2 — 118.1 of the Code sets forth the procedures through which a person whose license has been suspended pursuant to section 11 — 501.1 of the Code may have a hearing to determine whether the statutory summary suspension should be rescinded. (Ill. Rev. Stat. 1989, ch. 951/2, par. 2— 118.1.) Section 2 — 118.1(b) of the Code requires such a person to “state the grounds upon which the person seeks to have the statutory summary suspension rescinded” when requesting such a hearing. (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b).) One of the subjects to which the scope of the rescission hearing is statutorily limited is whether the person, “after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit.” Ill. Rev. Stat. 1989, ch. 95x/a, par. 2-118.1(bX3).

In the present case, the trial court concluded that because defendant was somehow misled by the officers regarding his right to counsel, he did not technically refuse to submit to the breathalyzer test. We disagree and find no support in the record for this conclusion.

Defendant argues that the trial court should be affirmed and in support cites People v. Kern (1989), 182 Ill. App. 3d 414, 538 N.E.2d 184. In Kern, the court observed that a defendant ordinarily has no right to consult counsel prior to taking a breathalyzer test, but that the officer in that case, having let the defendant contact an Iowa lawyer before taking the test, could not properly regard as a refusal defendant’s pressing his request to speak to an Illinois lawyer, who would be familiar with Illinois law regarding such tests. (Kern, 182 Ill. App. 3d at 416, 538 N.E.2d at 186.) Without necessarily indicating our agreement with that conclusion, we merely note that the facts in Kern render that case inapplicable. Here, it was defendant who first raised the subject of counsel, and it was he who maintained that same response to all requests the officers made, even after they warned him of the consequences.

Defendant’s insistence on his nonexistent right to consult with counsel constituted a clear refusal to take the test. At a rescission hearing, which is civil in nature, the driver bears the burden of proof. (People v. Bates (1987), 165 Ill. App. 3d 80, 82, 518 N.E.2d 628, 630.) Defendant in this case fell far short of meeting that burden, and the trial court’s decision to the contrary was manifestly erroneous.

As a separate ground for reversal, the State argues that because defendant’s request for a rescission hearing did not set forth the specific ground upon which rescission was ultimately granted, namely, that defendant was confused about his right to counsel before submitting to a breathalyzer test due to misleading information given him by the police officers, that ground was waived and should not have been considered by the trial court. We agree.

In enacting section 2 — 118.1 of the Code, the legislature intended to severely restrict the focus of rescission hearings. This intention is manifest by the language of that section directing that, “[t]he scope of the hearing shall be limited to the issues of ***,” and requiring that the party seeking rescission, “shall state [in the request therefor] the grounds upon which the person seeks to have the statutory summary suspension rescinded.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 95%, par. 2 — 118.1(b).) We thus hold that grounds not so specified in the request for a hearing are waived; further, we hold that it is just as erroneous for a trial court to rescind a statutory summary suspension on a ground not specified in the request for hearing as it would be for the court to order a rescission for a reason not specified in paragraph (b) of section 2 — 118.1 of the Code. Ill. Rev. Stat. 1989, ch. 95%, par. 2— 118.1(b).

The legislature had good reason for limiting the focus of rescission hearings. They are typically part of the traffic dockets in the circuit courts statewide, and these dockets are usually the busiest and the most understaffed. In order to expedite rescission hearings, both the court and the prosecutor must know in advance the defendant’s asserted ground for rescission. To hold otherwise would turn rescission hearings into discovery depositions, permitting defendants, as in this case, to make “blunderbuss arguments” at the conclusion of the hearing, hoping that the court might find some grounds for rescission as it sorts through the testimony it has heard.

An additional difficulty with this approach, again as shown by the record in this case, is that neither the trial court nor the prosecutor can tell as the hearing progresses what evidence or line of inquiry is relevant to the issues before the court.

Consistent with these views, we conclude that the trial courts should enforce compliance with the requirements of section 2 — 118.1(b) of the Code by insisting that an attorney specify in a request for a rescission hearing only those grounds which the attorney in good faith believes to be present.

For the reasons stated above, the order rescinding the statutory summary suspension is reversed.

Reversed.

GREEN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH JUSTICE STEIGMANN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES C. HARLIN, Defendant-Appellant.
    Fourth District
    No. 4-89-0985
    Opinion filed August 16, 1990.
    STEIGMANN, J., specially concurring.
    Paul L. Stone, of Stone & Stone Law Offices, of Sullivan, for appellant.
    Richard L. Broch, State’s Attorney, of Tuscola (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a bench trial, defendant James C. Harlin was found guilty of driving while under the influence of alcohol (DUI) and sentenced to 12 months’ probation. On appeal, defendant argues the State failed to try him within 120 days of his jury demand (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5), or within 49 days of his jury waiver under Supreme Court Rule 505 (113 Ill. 2d R. 505) and, therefore, his conviction must be reversed. We affirm.

On April 1, 1989, defendant was arrested and charged by uniform traffic citation with DUI. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(2).) Defendant was released on bond and given a court appearance date of May 2, 1989. On May 2, the cause was continued to May 16, 1989, due to defendant’s hospitalization. On May 16, defendant appeared, pleaded not guilty, and requested a jury trial. The cause was allotted for jury trial on July 24,1989.

On July 5, 1989, defendant waived his right to a jury trial and the cause was allotted for a bench trial on August 29, 1989. On August 25, 1989, defendant filed a motion to dismiss the charge against him alleging the State failed to bring him to trial as required by Supreme Court Rule 505.113 Ill. 2d R. 505.

On September 25, 1989, by memorandum opinion, the trial court denied defendant’s motion to dismiss. On the same day, defendant was found guilty of DUI. Defendant was sentenced to 12 months’ probation and ordered to perform 40 hours of public service in the first six months.

Defendant contends the State had to try him within 120 days of his arrest on April 1, 1989, plus 14 days for his delay from May 2 to May 16, or 49 days from his waiver of a jury trial on July 5, 1989. Defendant further argues Rule 505 dictates that a defendant be tried within 120 days of his arrest without the requirement of a written demand for speedy trial pursuant to section 103 — 5 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 103-5).

The State argues that since defendant waived his right to a jury trial, the 120-day period in Rule 505 no longer controls. Further, relying on this court’s decision in People v. Honnold (1989), 191 Ill. App. 3d 340, 547 N.E.2d 755, the State argues the 49-day period in Rule 505 for commencement of a bench trial is not binding on the court. Thus, a trial commenced after this period is not violative of a defendant’s rights pursuant to Rule 505.

The trial judge reasoned that the express language of Rule 505 requires only that a defendant’s trial be scheduled within 120 days of his arrest, not actually conducted. Further, the trial judge stated the 120-day period is not equivalent to “speedy trial” because a written demand under section 103 — 5 of the Code is required to invoke the speedy-trial provision.

The parties agree that since defendant’s arrest was in April 1989, the following version of Supreme Court Rule 505 is applicable:

“When issuing a Uniform Citation and Complaint, a conservation complaint or a Notice to Appear in lieu of either, in counties other than Cook, the officer shall also issue a written notice to the accused in substantially the following form:
AVOID MULTIPLE COURT APPEARANCES If you intend to plead ‘not guilty’ to this charge, or if, in addition, you intend to demand a trial by jury, so notify the clerk of the court at least 5 days (excluding Saturdays, Sundays or holidays) before the day set for your appearance. A new appearance date will be set, and arrangements will be made to have the arresting officer present on that new date. Failure to notify the clerk of either your intention to plead ‘not guilty’ or your intention to demand a jury trial may result in your having to return to court, if you plead ‘not guilty’ on the date originally set for your court appearance.
Upon timely receipt of notice that the accused intends to plead ‘not guilty,’ the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within 120 days of arrest. The proper prosecuting attorney shall be served with any separate written demand for speedy trial under section 103 — 5 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5).” 113 Ill. 2d R. 505 (eff. Aug. 1, 1987).

Supreme Court Rules 504 (113 Ill. 2d R. 504) and 505 were set up primarily for the benefit of defendants to eliminate the necessity of multiple appearances with respect to traffic charges.

Supreme Court Rule 505 gives a defendant at least three options:

(1) If the defendant enters a plea of not guilty, the clerk sets a new appearance date of not less than 7 days nor more than 49 days after the original appearance date set by the officer.
(2) The defendant can demand a trial by jury, and in this instance, the trial shall be scheduled within 120 days of arrest.
(3) The defendant can make a demand for speedy trial under section 103 — 5 of the Code.

In pleading not guilty, the defendant has options. He could, when filing a plea of not guilty, not request a jury trial but file a separate written demand for speedy trial under section 103 — 5. He could file a plea of not guilty; demand a trial by jury, the trial to be scheduled within 120 days of arrest; and also file a written demand for speedy trial under section 103 — 5.

In People v. Rideout (1990), 193 Ill. App. 3d 884, 550 N.E.2d 632, this court stated that where a defendant demands a jury trial pursuant to Rule 505, trial must be had within 120 days of the date of arrest. Further, we said a written demand for speedy trial need not be filed where a defendant demands a jury trial under Rule 505. Accordingly, we find error in the trial judge’s reasoning in this case that a written demand for speedy trial was required. However, our conclusion on this issue does not address the other questions presented by this appeal: whether the 120-day period in Rule 505 still applies, despite the withdrawal of the jury demand, and whether the 49-day period begins from the time of the withdrawal and is binding on the court.

The record shows the defendant was specifically informed he could avoid multiple court appearances by completing the back of the citation. However, the record does not show the defendant completed the back of the citation form. Further, defendant’s case was continued from the original appearance date, May 2, 1989, to May 16, 1989, because of defendant’s hospitalization. Because defendant appeared on May 16, 1989, with counsel, entered a plea of not guilty and asked for jury trial, he argues Rule 505 applies.

Should Rule 505 apply where defendant did not follow the procedures set forth on the citation issued? The special concurrence states that Supreme Court Rule 505 does not apply to the sequence of events occurring here and has no application to proceedings conducted in open court with a judge presiding. There is certainly merit to this statement. However, if applied to all cases where defendant is before the judge, Supreme Court Rule 505 would be changed by this court. The reason being, the rule requires the clerk to set a new appearance date (before the judge) in all cases when the accused notifies the clerk he intends to plead “not guilty.” The accused, complying with the appearance date notice “before the judge,” does not thereby lose all benefits of the rule. Because neither party questions the applicability of Rule 505, we address the defendant’s contentions.

Defendant relies on People v. Hamilton (1988), 169 Ill. App. 3d 105, 523 N.E.2d 204, wherein the Second District Appellate Court held that a waiver of jury demand does not waive demand for speedy trial. There, the defendant was charged by uniform citation with DUI. Defendant requested a jury trial before his first court appearance, but withdrew the demand two months later and before a date for a jury trial was set. Rule 505, as in effect at the time of defendant’s arrest in Hamilton, recited that if a defendant demands a jury trial, “the trial is to be scheduled within the time parameters of section 103 — 5 ***. (107 Ill. 2d R. 505.)” (Emphasis in original.) (Hamilton, 169 Ill. App. 3d at 109, 523 N.E.2d at 207.) The defendant in Hamilton was not tried until more than six months after his arrest. Because the defendant was not tried within 160 days of his jury demand, the court held the case should have been dismissed.

Defendant’s reliance on Hamilton is misplaced. First, we note that Rule 505 has been amended twice since the Hamilton case was decided and the rule no longer incorporates section 103 — 5 for computation of the time period within which a jury trial must be scheduled. Further, we disagree with the Hamilton court’s analysis. In the present case, if the defendant’s argument — that the 120-day period continues to run despite a jury waiver — were adopted, it would allow defendants in traffic cases to execute a jury demand to activate the 120-day time period, but would not allow the State or the court system any additional time to reschedule a trial after the jury demand is withdrawn. Such a result is not contemplated by Rule 505.

As to defendant’s alternative argument that after the waiver was filed, the State had to try him within 49 days, our decision in Honnold is controlling. There, we said the 49-day period in Rule 505 was not an absolute deadline for setting a bench trial, but rather refers to a ministerial task intended to speed up the proceedings. In Honnold, the defendant timely requested a bench trial before his first scheduled court appearance. The bench trial was scheduled within the 49 days, but not held until more than 49 days later. We determined the defendant was not entitled to a discharge. The reasoning of Honnold is equally applicable here. Further, the purpose of Rule 505-avoidance of multiple court appearances — would not be served by allowing a defendant to file a plea of not guilty, demand a jury trial, waive the jury demand at a later date, and then be able to ask the court to comply with the 7- to 49-day rule.

When, as here, a defendant abandons his jury demand, the purposes of Rule 505 which benefit the defendant are not abused by not applying the 7- to 49-day protections. The protections against multiple appearances have been waived by the defendant by his own actions.

As stated, the protections for early resolution of traffic citations give a defendant options when a jury trial is requested, and distinct from those available when it is not requested. The purpose of the rule is fulfilled when a defendant requests jury trial. When later waived by the defendant, the 7- to 49-day limitation does not apply.

For the foregoing reasons, the defendant’s conviction and sentence for DUI are affirmed.

Affirmed.

GREEN, J., concurs.

JUSTICE STEIGMANN,

specially concurring:

While I agree with the result reached by the majority opinion, I do not agree with the reasoning used to reach that result. For the reasons that follow, I agree with the State’s argument that this court’s decision in Honnold means that Rule 505 is not binding upon a trial judge before whom a defendant appears.

Supreme Court Rule 504 (107 Ill. 2d R. 504) directs that whenever practicable, an arresting officer shall set a date for an accused’s appearance in court not less than 14 days but within 49 days after the date of his arrest. If an accused intends to plead not guilty to the charge, Supreme Court Rule 505 (107 Ill. 2d R. 505) directs him to notify the circuit clerk of that intent at least five days prior to the said appearance date selected by the officer. Then, upon timely receipt of notice that the accused intends to plead not guilty, the circuit clerk is directed by Rule 505 to set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer and to notify all parties of the new date and time for appearance.

In this case, the ticket was issued on April 1, 1989, with the defendant’s first court appearance set for May 2, 1989. By selecting that date, the arresting officer discharged his obligation under Supreme Court Rule 504.

Because defendant was hospitalized, his appearance date was continued until May 16, 1989, at which time defendant appeared with his attorney, entered a plea of not guilty, and asked for a jury trial. The case was allotted for a July 24 jury trial, but on July 5, 1989, defendant waived it. The judge set the case for a bench trial on August 29, 1989. On August 25, 1989, defendant filed a motion to dismiss on the basis that he had not been tried within the time required by Rule 505.

In my judgment, the short answer to defendant’s claim that this sequence of events violated Supreme Court Rule 505 is that Supreme Court Rule 505 has no application to proceedings conducted in open court with a judge presiding; instead, it applies only to actions taken either by the arresting officer or by the circuit clerk. The reason why this is so is obvious: Supreme Court Rule 505 provides the only exception to the rule that judges set their own docket. Because of the nature and volume of traffic charges, the supreme court has provided in Rule 505 for a procedure through which traffic court matters can be expeditiously docketed without the intervention of a judge. In doing so, the supreme court has understandably given rather specific directions to the nonjudicial officers involved in the process, namely, the arresting officer and the circuit clerk. A careful reading of the rule reveals that nowhere does it contain any directions to a court or to a judge of that court. All of its directory language is addressed to the arresting officer or to the circuit clerk. Accordingly, once the defendant appears in open court, as in this case, to have the matter allotted by a judge for further proceedings, both the reasons for the rule and its applicability disappear.

The omission from Supreme Court Rule 505 of any directory language addressed to the court is no mere oversight. Throughout the supreme court rules, particularly article IV concerning rules on criminal proceedings in the trial court, the supreme court has demonstrated that when it wishes to direct the court to take certain action, it is perfectly capable of doing so. The argument that Supreme Court Rule 505 applies to judicial officers as well as to the circuit clerk or ¡ the arresting officer suggests that the supreme court is somehow unable to tell the difference between these categories.

Comparison of Supreme Court Rule 505 and section 103 — 5 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5) further supports my argument. Section 103 — 5 directs in straightforward fashion that every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant or unless certain other circumstances are present. That statute contains no directions concerning whose obligation it is to see that this goal shall be achieved; it simply provides that if it is not achieved, the defendant is to be discharged. If the supreme court intended to provide a similar sort of speedy trial rule with regard to traffic offenses, it could have done so by copying (at least in part) section 103 — 5. That section was part of the original Code of Criminal Procedure of 1963, approved August 14, 1963. (Ill. Rev. Stat. 1965, ch. 38, par. 103 — 5.) Supreme Court Rule 505 was not promulgated until 1968.

In my judgment, the provisions of Rule 505 have no applicability once a judge presides over a proceeding in which the traffic case gets allotted or reallotted for any hearing of whatever nature. To hold otherwise is to strip the judges of our highest volume courts of the discretion they need to manage their burdensome dockets. Also, to hold otherwise gives a great and unjustified boost to practitioners of the “sporting” theory of criminal justice who, as in this case, hope to catch a rookie prosecutor or a busy trial judge overlooking a meaningless technicality, thereby requiring dismissal.

To the extent that Rideout or the other cases discussed in the majority opinion are inconsistent with this view, I believe they should either be overruled (Rideout) or not followed.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP D. SCHUTZ, Defendant-Appellant.
    Fourth District
    No. 4-89-0301
    Opinion filed August 16, 1990.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Beth McCann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On January 19, 1989, defendant Phillip Schütz was found guilty by a jury sitting in the circuit court of Vermilion County of committing the offense of armed robbery. (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2.) He subsequently received a 14-year prison sentence. Defendant now appeals.

Defendant and three compatriots were charged with committing an armed robbery of the China Garden restaurant on September 11, 1988. Jeff Wong, the owner, testified that on September 11, at approximately 8:30 p.m., after the restaurant had closed, he was at the cash register when two men approached. One wore a ski mask and one wore a stocking over his head, and they carried a knife and a sawed-off shotgun. They took Wong back to the kitchen, where his employees and his five-year-old niece, as well as two other masked men, were located. They were then placed in the kitchen’s walk-in cooler.

Two of the men then took Wong to the upstairs apartment where his sister and 71-year-old mother-in-law lived. During this time, they had the knife placed against Wong’s neck. They brought the women down and placed them in the cooler. One of the men then started demanding to know where the safe was located. When Wong told them there was no safe, the robber became upset and threatened to kill him. Eventually the robbers took the money in the cash register, the money and jewelry from the apartment, and jewelry which the victims were wearing (including Wong’s watch). The robbers left after placing a mop against the walk-in door.

Next to testify was Diana Ross, a former waitress at the China Garden. She is a cousin of codefendant Scott Pfeifer and became acquainted with defendant through him. In the early part of September 1988, she and Mary Nier went to room No. 9 at the Page Motel to meet with defendant and Pfeifer. During that time, a conversation came up concerning details of the China Garden’s operations. Defendant and Pfeifer showed Ross a sawed-off shotgun and a knife.

A week prior to the robbery, defendant telephoned Ross and told her they were going to rob the restaurant. She thought he was joking. The day of the crime, he again called with the same message. Around 1 a.m. she received a call from Pfeifer directing that she and Nier meet him and the defendant. Defendant and Pfeifer told Ross and Nier that four of them had gone into the restaurant wearing masks, and that they had burned their clothing afterward. Pfeifer did most of the talking. They eventually ended up at the motel where Pfeifer and defendant showed them the stolen property. Ross recognized a watch belonging to Wong. They then told the story in greater detail. They explained the people were put in the cooler, that the little girl was given a coat, that they helped an old lady down the stairs, and that a knife was held to Wong’s throat. The next day she went with Pfeifer and defendant when they purchased a car from Dorothy VanCamp.

VanCamp testified she sold a car on Monday, September 12, 1988, and she identified defendant as being one of the purchasers. She remembered the other man’s name was Scott Pfeifer. George Wright, the owner of Page Motel, testified that Pfeifer and defendant rented room No. 9 from September 2 to September 16, 1988. He remembered seeing them around 7 p.m. on Sunday, September 11, when they left with two other men. The other men had trouble with their car, which was eventually towed. He saw these four men return at 9:30 p.m. After they moved out, he entered the room and found a spring-loaded handgun.

The State’s final witness was codefendant Celedonio Rodriguez. On September 9, 1988, he and Jerry Aguirre met with Pfeifer and defendant in the motel room. They discussed robbing the restaurant. On Sunday, at approximately 7 p.m., he and Aguirre returned to the motel. When they arrived, Rodriguez’s car broke down. They left after Pfeifer gave them their masks, which were two nylons and two ski masks. When they arrived at the restaurant, they went in the back door. Between them they had a knife, a sawed-off shotgun, and a “toy” gun. He identified the gun recovered by Wright as the “toy” gun. He then related the details of the robbery. This testimony was substantially similar to Wong’s. He and defendant stayed by the cooler the entire time, while Pfeifer and Aguirre went upstairs. They then went back to the motel and he received $500.

On cross-examination, he admitted telling the police a different story at an October 10, 1988, interview. He stated he was scared and said he told the truth on October 14. He also admitted he pleaded guilty to robbery in return for his testimony, and that it was his understanding he now had a chance for probation rather than a mandatory prison sentence. A stipulation was then entered into, which provided that on October 14 Rodriguez gave the police a statement which is substantially similar to his trial testimony.

Defendant presented an alibi defense. His mother testified he was with her all day and night on September 11, 1988, and, in fact, went with her to the weekly bingo game, which took place at the time of the robbery. His grandmother and her friend also testified to his presence at the bingo game. Defendant acknowledged living with Pfeifer at the motel, but stated he spent September 11 at his mother’s house. The next day, he went with Pfeifer to purchase a car. Later that week, Pfeifer confessed to him that Pfeifer committed the robbery. Defendant denied any involvement.

After a short deliberation, the jury found defendant guilty. The court subsequently imposed the 14-year sentence. Defendant now appeals, alleging (1) Rodriguez should not have been allowed to testify; (2) he received ineffective assistance of counsel; (3) the jury instructions were erroneous; and (4) the court considered improper aggravating factors at sentencing. We affirm the conviction and sentence, and remand for the filing of a mittimus showing a sentence credit to which defendant is entitled.

Defendant’s initial contention is that the court erred by allowing Rodriguez to testify. The record shows that Rodriguez was not listed as a witness on the State’s pretrial discovery, nor was he listed as a prospective witness for the jury selection process. After the commencement of defendant’s trial, Rodriguez entered a negotiated plea which required his testimony. Defendant’s counsel was notified immediately over the noon hour, and counsel objected to the testimony. The court indicated Rodriguez could not testify until counsel had ample opportunity to interview him. Apparently this opportunity was afforded, and the next day he did testify. Defendant still believes he should not have been allowed to do so.

Supreme Court Rule 412(a)(i) (107 Ill. 2d R. 412(a)(1)) provides that, as part of the pretrial discovery, the State, upon request by defendant, shall supply defendant with names of persons whom the State intends to call as witnesses. The purpose of this rule is to prevent surprise and afford an opportunity to combat false testimony. (People v. Steel (1972), 52 Ill. 2d 442, 450, 288 N.E.2d 355, 360.) However, noncompliance with discovery requirements does not require reversal absent a showing of prejudice. People v. Greer (1980), 79 Ill. 2d 103, 120, 402 N.E.2d 203, 211.

Allowing an unlisted witness to testify is within the discretion of the trial court and, absent a showing of surprise or prejudice, that discretion will not be reviewed. (Steel, 52 Ill. 2d at 450, 288 N.E.2d at 360; People v. Jordan (1967), 38 Ill. 2d 83, 93, 230 N.E.2d 161, 167.) The burden of showing surprise or prejudice is on the defendant. (Steel, 52 Ill. 2d at 450, 288 N.E.2d at 360; People v. Raby (1968), 40 Ill. 2d 392, 401-02, 240 N.E.2d 595, 601.) In the present case, Rodriguez is a codefendant who was charged with his involvement in the crime three months prior to the trial. Defendant had •been supplied copies of Rodriguez’s statement with the State’s discovery answer. Under such circumstances, we conclude that defendant cannot complain of surprise.

Neither do we find defendant was prejudiced. The courts have repeatedly found no prejudice occurred where the defendant had an opportunity to interview the witness and did not ask for a continuance but proceeded to trial. (People v. Welch (1961), 22 Ill. 2d 558, 561-62, 177 N.E.2d 160, 162; Jordan, 38 Ill. 2d at 93, 230 N.E.2d at 167.) In Steel, the court stated:

“Here defense counsel was afforded an opportunity to interview the witness and he did not specifically request a continuance. Moreover, the record indicates the State offered defense counsel a copy of this witness’s prior statement. Under these circumstances we do not believe that defendant was prejudiced.” (Steel, 52 Ill. 2d at 450, 288 N.E.2d at 360.)

Similarly, in the present case, counsel did not request a continuance. He did avail himself of the opportunity to speak with Rodriguez. Also, copies of Rodiguez’s statements had previously been supplied to defendant as part of the State’s discovery answer, and the record establishes that counsel was familiar with them.

Defendant disagrees and insists such prejudice was shown. He relies on the decisions in People v. Millan (1977), 47 Ill. App. 3d 296, 361 N.E.2d 823, and People v. Mourning (1975), 27 Ill. App. 3d 414, 327 N.E.2d 279, for the proposition that a short interview with the witness is not a satisfactory substitute for prompt discovery compliance. However, those cases are predicated on their facts, which establish the State’s conduct in not disclosing the relevant names bordered on bad faith. They are inapplicable to the present case, since there has been no discovery violation on the part of the State.

Rule 412 requires the State to provide a list of witnesses it intends to call. Here it is clear, based on the statement he had given, the State would like to have Rodriguez as a witness. However, it is similarly clear that until he pleaded guilty, the State could not use him in that fashion. Thus, it cannot be concluded the State intended to call him as a witness until he pleaded guilty. Once he did, the State promptly notified defendant. Therefore, the bad faith evident in Millan and Mourning is not present here.

Accordingly, since there was no surprise and defendant cannot establish prejudice, we conclude the court did not abuse its discretion in allowing the testimony.

Defendant’s second assertion of error is that he received ineffective assistance of counsel. More specifically, he complains of the act of counsel in entering into the stipulation concerning a prior consistent statement given by Rodriguez. After Rodriguez’s testimony, the stipulation, which was presented by the court, provided that on October 14, 1988, Rodriguez gave a statement to the police which “was substantially consistent with the statement he has given in open court today.” The court then admonished the jury that this stipulation was only to be considered in regard to Rodriguez’s motive to testify falsely. Defendant believes this decision of counsel was improper, because the prior consistent statement is inadmissible and this evidence gravely prejudiced him.

The United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, formulated a two-part test for evaluating whether a defendant has received ineffective assistance of counsel. Defendant must first demonstrate that counsel’s performance was deficient. (People v. Owens (1989), 129 Ill. 2d 303, 309, 544 N.E.2d 276, 278.) Defendant must also prove that his counsel’s deficient performance substantially prejudiced his defense. (Owens, 129 Ill. 2d at 309, 544 N.E.2d at 278.) To meet this second test, a defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

It is upon this second prong that defendant’s argument fails. Defendant maintains the stipulation bolstered Rodriguez’s testimony, which was crucial to his conviction, by refuting the allegation that Rodriguez was testifying falsely in order to get a good deal. However, it is not only this stipulation which bolstered Rodriguez’s testimony. Rodriguez’s testimony confirmed details of the crime as related by Wong. Also, the testimony of Ross, as well as Wright, supports many of the incidents related by Rodriguez. Thus, even without this stipulation, the jury could reasonably conclude that Rodriguez was testifying truthfully. We conclude therefore that, even if counsel was mistaken in entering into the stipulation, defendant has failed to establish there is a reasonable probability of a different result. Accordingly, we find no merit to his ineffective assistance claim.

Further, the stipulation was properly admitted as a prior consistent statement. The general rule is that proof of a prior consistent statement by a witness is admissible to rebut a charge or inference of a recent fabrication or motive to testify falsely, provided the statement is made before the alleged motive to fabricate existed. (People v. Ashford (1988), 121 Ill. 2d 55, 71, 520 N.E.2d 332, 338, cert. denied (1988), 488 U.S. 900, 102 L. Ed. 2d 234, 109 S. Ct. 246.) Here, Rodriguez gave the October 14 statement after he was arrested for the instant offense. Defendant, relying on our decision in People v. Green (1984), 125 Ill. App. 3d 734, 466 N.E.2d 630, argues this statement was given after the motive to fabricate existed. However, as we recently pointed out, subsequent supreme court cases have raised questions about the Green holding. (See People v. Eichelberger (1989), 189 Ill. App. 3d 1020, 1032, 546 N.E.2d 274, 281-82.) We now conclude, upon further consideration, that Green is no longer viable in this regard.

In our present case, Rodriguez, after his arrest, contacted the police and gave the statement indicating he wanted to tell the truth. This was given several months prior to the plea agreement which was the basis of the alleged inference of a recent fabrication. There is no evidence he was promised anything by the authorities for his statement. An analysis of those supreme court cases establishes that the statement was properly considered a prior consistent statement and the stipulation was proper. See Ashford, 121 Ill. 2d at 71-72, 520 N.E.2d at 338; People v. Titone (1986), 115 Ill. 2d 413, 422-23, 505 N.E.2d 300, 303-04.

Defendant next attempts to resurrect a previously answered question. He notes the jury instructions failed to include a mental state, and he maintains this is error. He acknowledges that in People v. Talley (1988), 177 Ill. App. 3d 170, 531 N.E.2d 1139, this court addressed this exact question and found no error. He asks us to reconsider. We, finding the issue properly laid to rest, decline to do so.

Defendant, relying on People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, further argues the court erred by considering aggravating factors which are implicit to the offense of armed robbery. Specifically, these are the factors that defendant’s conduct caused pr threatened serious bodily harm and that defendant received compensation for the crime. See Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.2(a)(1), (a)(2).

At the sentencing hearing, the court found in aggravation that defendant is a threat to society, his conduct caused or threatened serious harm, defendant received compensation for the offense, defendant was on probation for five burglary offenses at the time of the offense, a significant sentence is necessary to deter others, and a minimum sentence would mitigate the seriousness of the offense. The court found no mitigating factors present. Therefore, the court imposed a 14-year prison sentence.

Defendant argues the court improperly considered the threat of harm as an aggravating factor. He believes our opinion in People v. Rhodes (1986), 141 Ill. App. 3d 362, 490 N.E.2d 169, is controlling. There we observed that to the extent that serious- harm is inherent in the offense, it may not also be used to enhance a prison sentence. (Rhodes, 141 Ill. App. 3d at 364, 490 N.E.2d at 170.) Thus, we held that the mere presence of a dangerous weapon at an armed robbery should not be considered an aggravating factor.

However, defendant is reading the Rhodes opinion too broadly in applying it to this case. This is made clear in the supreme court opinion People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, where the court considered the propriety of considering the causing or threat-of-harm factor in the context of a voluntary manslaughter conviction. The court concluded that it is appropriate to consider the degree of harm as an aggravating factor, even in those cases where harm is implicit in the offense. (Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.) Thus, it is appropriate for the court to consider whether defendant’s conduct threatened serious harm to a degree greater than that inherent to the offense. Here, the evidence showed a number of people, including a 71-year-old and a 5-year-old, were placed in the walk-in cooler, and efforts were made by defendant to bar the door. Further, Wong was repeatedly threatened and was forced up the stairs with a knife to his throat. This conduct is sufficiently more serious than that in the conventional armed robbery so as to be distinguishable from Rhodes and properly considered as an aggravating factor.

This, however, cannot be said of the fact defendant received compensation. In the present case, the compensation is the proceeds of the armed robbery. Conover is controlling, and this factor clearly should not have been considered.

However, it has been clearly established that reliance on an improper factor in aggravation does not always necessitate remandment for sentencing. (People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1340.) Where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required. (Bourke, 96 Ill. 2d at 332, 449 N.E.2d at 1340.) A review of the sentencing hearing establishes the court only mentioned the compensation factor in passing. As noted, a number of other aggravating factors were found present and relied upon. We conclude this factor did not lead to a greater sentence. Accordingly, remandment is not necessary.

Finally, defendant, observing no mittimus is contained in the file, expresses concern that he will receive credit for the 129 days he is entitled to. The circuit clerk is required to notify the Department of Corrections of a number of things, including the credit for days served a defendant is to receive. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 4—1(e)(4).) While this most likely has been done, the record does not reflect it. Accordingly, we must remand for the filing of the appropriate documents to ensure compliance.

Affirmed and remanded with directions.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH M. CLAYTON, Defendant-Appellee.
    Fourth District
    No. 4-89-0974
    Opinion filed August 16, 1990.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Roma Barksdale Larson and Thomas R. Appleton, both of Morse, Giganti & Appleton, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The defendant Joseph Clayton was issued an Illinois citation and complaint for driving under the influence of alcohol (DUI). He refused to submit to alcohol testing. The Secretary of State issued a statutory summary suspension, and the defendant filed a petition to rescind the summary suspension. On December 8, 1989, the trial court granted the defendant’s petition to rescind based upon the arresting officer’s failure to appear for the hearing. The State appeals.

The principal issue on appeal before this court is whether the trial court was correct in sua sponte granting the defendant’s petition for rescission of the summary suspension because of the absence of the arresting officer at the hearing. The defendant was issued an Illinois citation and complaint on October 1, 1989, for DUI in violation of section 11 — 501(a)(2) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951k, par. 11 — 501(a)(2)). The law enforcement sworn report was completed showing the defendant refused to submit to alcohol testing. The report also contained comments on reasonable grounds to believe the defendant was in violation of section 11 — 501 “strong odor of alcohol, slurred speech, admits to drinking.” On October 5, 1989, the defendant filed two motions, a motion to rescind the statutory summary suspension alleging that the arresting officer did not have reasonable grounds to believe that the defendant was driving, or in actual physical control of, a motor vehicle while under the influence of alcohol and a motion to quash the arrest alleging that the arresting officer had no probable cause to stop the defendant, or to arrest him for DUI.

At a hearing on the petition to rescind set for October 20, 1989, the parties appeared before Judge Mehlick. The trial court made a note, “Reset after 12/16/89.” Computer notices were sent out October 31, 1989, by the circuit clerk’s office showing a trial date of December 19, 1989, at 9 a.m. The bystander’s report shows that at the October 20, 1989, hearing, the People informed the court that the arresting officer was not available to testify as he was in school until December 16, 1989. The defendant agreed not to proceed to hearing without the officer.

Contrary to the October 20, 1989, order, on November 21, 1989, the circuit clerk’s office sent a notice of hearing on the petition to rescind the summary suspension, setting the matter for December 8, 1989. On that date, the parties appeared in court before Judge Shiftman, informed the court that the arresting officer was not present and the judge sua sponte granted defendant’s petition and dismissed the case. As it pertains to the issues in this case, section 2 — 118.1 of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 2 — 118.1) provides in part:

“The hearing may be conducted upon a review of the law enforcement officer’s own official report; provided however, that the person may subpoena the officer. Failure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding.”

At the December 8, 1989, hearing, the parties appeared before the court. The arresting officer was not present. Per the bystander’s report:

“Upon being informed of this, the court sua sponte, granted the defendant’s petition. No hearing was held. No subpoena was issued by the defendant for the arresting officer.”

In People v. Johnson (1989), 186 Ill. App. 3d 951, 954, 542 N.E.2d 1226,1228, the court stated:

“Section 2 — 118.1(b) makes clear that the State is permitted to use the arresting officer’s sworn report to support the summary suspension of a defendant’s driver’s license provided that the arresting officer is not under subpoena to appear.”

This statement is sound and is adopted. The arresting officer was not subpoenaed by the defendant, was not required to appear, and his failure to appear was not a basis for summarily granting defendant’s petition for rescission. The arresting officer’s sworn report was on file but no hearing on the merits of the petition held. As stated in People v. McClain (1989), 128 Ill. 2d 500, 508, 539 N.E.2d 1247, 1251:

“In a summary suspension hearing the burden of proof is on the motorist to present a prima facie case for rescission.”

The trial judge at the December 8, 1989, hearing erred in granting the petition without hearing based upon the arresting officer’s failure to appear.

The State also asserts as error in this case that the clerk, contrary to Judge Mehlick’s order, set the matter for hearing prior to December 16, 1989. Because we find the order entered December 8, 1989, in error, which granted the motion to rescind the suspension, it is unnecessary to reach the issue whether the State was prejudiced when the trial date was erroneously set by the circuit clerk despite an order to set the matter subsequent to December 16, 1989. The order granting the defendant’s motion for rescission of the summary suspension entered by the Sangamon County circuit court is reversed. The cause is remanded for further proceedings consistent with this decision.

Reversed and remanded.

SPITZ and GREEN, JJ., concur.