text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Giovanni CUNNINGHAM, Defendant-Appellant.
    No. 1-15-3367
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    June 8, 2018
    Michael J. Pelletier, Patricia Mysza, and Eric E. Castaneda, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Kathryn A. Schierl, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE CONNORS delivered the judgment of the court, with opinion.

¶ 1 Defendant, Giovanni Cunningham, was charged with, inter alia , unlawful use of a weapon by a felon (UUWF) and aggravated use of a firearm after he was observed loading a shotgun by Chicago police officers. After a bench trial, defendant was convicted of the aforementioned offenses and sentenced to eight years' imprisonment. Defendant appeals, arguing that his due process rights were violated where police failed to follow the proper inventory procedures for material, exculpatory evidence and ultimately destroyed said evidence even after receiving a discovery request from defendant. For the reasons that follow, we affirm the trial court's decision.

¶ 2 BACKGROUND

¶ 3 On April 16, 2014, defendant was arrested and charged with one count of armed habitual criminal, two counts of UUWF, six counts of aggravated unlawful use of a weapon, and two counts of unlawful use of a weapon.

¶ 4 On July 10, 2014, defendant filed a motion for discovery, asking that the State disclose and produce certain evidence. In relevant part, defendant's motion requested that the State produce the following:

"A list of all physical property that the State intends to use at the time of trial, including:
a) A list of all physical property in the possession of law enforcement officials;
b) Date and time the property was acquired;
c) Location from which property was acquired;
d) What person or persons first took the property into their possession;
e) Reports made by law enforcement authorities pertaining to this property, including scientific reports, etc.;
f) That such property be made available to the defense for inspection before trial."

¶ 5 Defendant waived his right to a jury trial, and his bench trial began on June 11, 2015. The State called three witnesses: Officers Caribou, Mostowski, and Meadows. Officer Caribou testified that on April 16, 2014, at approximately 2:32 p.m., he and his partner, Officer Mostowski, were on duty conducting narcotics surveillance of 6951 South Indiana Avenue, which was an abandoned house. Officer Caribou stated that he and his partner were on the porch of the house next door when they observed three individuals walking to the rear alley of the abandoned house. The officer estimated that he and his partner were approximately 10 to 15 feet away from the rear of the building, and stated that they had a clear view. Officer Caribou further stated that as the three individuals walked to the rear of the building, he observed one of them, who he subsequently identified in court as defendant, take a shotgun from the open doorway at the rear of the building. Officer Caribou described defendant on that date as wearing blue jeans, a black and red Bulls coat, and a mohawk haircut, which he agreed was "unique." He estimated that defendant was about 5 feet, 5 inches tall. Officer Caribou also stated that the other two individuals were wearing a black hoodie and a blue hoodie, but neither had a mohawk haircut.

¶ 6 Officer Caribou testified that he then observed defendant begin to load the shotgun with ammunition that he removed from either his pants pocket or jacket pocket. The officers then approached the three individuals and announced their office as Chicago police when they were about 10 feet away, and all three individuals fled. Officer Caribou further stated that the two individuals who were wearing hoodies fled back into the alley, but defendant went through the open doorway into the abandoned house. Officer Caribou followed defendant into the house and observed defendant drop the shotgun on the bottom of the staircase. Defendant proceeded up the stairs, and Officer Caribou testified that he then secured the shotgun, which was loaded with four rounds and one in the chamber. Officer Caribou stated that he then continued to run about halfway through the building when he heard his partner on the radio state that he observed defendant go out the front door and onto the next block. Officer Caribou secured the shotgun in his vehicle and joined up with his partner. At this point, the officers had lost sight of defendant. The officers then put out information over the radio dispatch that they were looking for three individuals.

¶ 7 Officer Caribou further testified that at approximately 2:48 p.m. on that same date, he received notice from dispatch that other officers had detained a possible offender. Officer Caribou then traveled to 6926 South Michigan Avenue, which he testified was approximately one block away from where he initially observed defendant with the shotgun. Officer Caribou stated that upon arriving at that location, he saw another officer (Officer Meadows) and his partner detaining defendant, whom Officer Caribou recognized as "the individual with the mohawk haircut, the Chicago Bulls clothes that had the shotgun at the abandoned house." Officer Caribou further testified that defendant was not wearing the Chicago Bulls jacket at that time but was wearing blue jeans, a shirt, and "obviously his mohawk." Officer Caribou stated that defendant was subsequently taken to the third district police station, where he and his partner, Officer Mostkowski, spoke to defendant. Officer Caribou testified that at approximately 3:15 p.m., defendant was advised of his Miranda rights by Officer Mostowski. Officer Caribou also testified that defendant made a statement that "the DOD was in the area shooting, so he went to go get the shotgun to protect him and his friends." Officer Caribou testified that "DOD" was slang for a gang in Chicago. The officer also stated that he inventoried the shotgun he recovered, which he found out to be a 12-caliber gauge shotgun. Officer Caribou testified that defendant gave his home address as 9356 South Martin Luther King Drive, and that his date of birth was July 25, 1990.

¶ 8 On cross-examination, Officer Caribou testified that when he first saw defendant, he recognized the following distinguishing features, other than the Bulls jacket: "[b]lue jeans, medium skin, and roughly about five-five in height." Officer Caribou described defendant's hair as "a fresh clean mohawk haircut." Counsel for the State confirmed with Officer Caribou that he inventoried both the shotgun and the Bulls jacket and asked the officer if he knew where the jacket currently was. Regarding the jacket's location within the Evidence and Recovered Property Section of the Chicago Police Department (ERPS), Officer Caribou stated that "[i]f it's still inventoried, it should be down in ERPS. Usually for something like this we would put a hold on it, so if it's still on a hold, it's in ERPS which is at Homan."

¶ 9 On redirect examination, Officer Caribou identified the arrest report, which contained a photo of defendant, and testified that the photo depicted defendant's unique-looking mohawk on the date he observed defendant with the shotgun. The following relevant questioning then occurred:

"Q. Officer I don't know if you will know the answer to this, but Chicago Police when personal property of a Defendant such as the clothing that they are wearing is inventoried and that property is not picked up by a Defendant, do you know whether or not that property gets destroyed within a certain amount of time?
A. Like I said earlier, I'm positive I put a hold on this because we gave a description of him wearing it, so if there is a hold on it, it should be at Homan Square where they hold the property in ERPS.
Q. But you don't know what happens to it otherwise, correct?
A. No.
Q. Okay. Thank you.
But you did inventory the Bulls jacket in question, is that correct?
A. I am pretty positive I did; yes.
Q. And the inventory for that was under 13151446, is that correct?
A. Correct."

¶ 10 The State next called Officer Mostowski to testify. Officer Mostowski testified to substantially the same events as his partner, Officer Caribou, with a few exceptions. Officer Mostowski testified that when he first observed defendant, he saw him wearing "[a] Bulls jacket, blue jeans, and he had a mohawk." He further testified that the other two individuals who were with defendant were wearing a black hoodie and a blue jacket. Officer Mostowski testified that after he and his partner approached the individuals and announced their office, the individuals ran. The officer stated that he lost sight of defendant after defendant ran into the house, with Officer Caribou following after defendant. Officer Mostowski testified that after losing sight of defendant, he ran to the front of the house and then saw defendant again when defendant ran out of the front of the house. Officer Mostowski stated that he saw defendant run westbound towards 69th Street and Michigan Avenue. The officer again lost sight of defendant and met up with his partner, who then had the shotgun in his possession. Officer Mostowski confirmed that the shotgun Officer Caribou recovered was the same one they had observed defendant holding.

¶ 11 Officer Mostowski further testified that he and Officer Caribou received information over dispatch that a suspected offender had been detained at 6926 South Michigan Avenue, which was about a block away. When Officer Mostowski arrived at that location, he recognized defendant as the same person that he had seen with a shotgun moments before at 6951 South Indiana Avenue. Officer Mostowski stated that defendant was no longer wearing the Bulls jacket at that time but still had on jeans and the same mohawk haircut. Officer Mostowski testified that he recognized defendant's face and had gotten a clear view of his face because defendant had looked "directly in [his] direction." Officer Mostowski stated that another officer, Officer Meadows, showed him a Bulls jacket that he had recovered, and Officer Mostowski recognized it as the jacket that defendant had been wearing. Back at the third district station, Officer Mostowski and his partner advised defendant of his Miranda rights. Officer Mostowski testified that defendant made a statement to the officers that, "the DOD[,] Black Disciples, were coming around the block with guns, so he wanted to protect himself and his friends with the shotgun."

¶ 12 On cross-examination, Officer Mostowski confirmed that it was officers other than him and his partner who recovered the Bulls jacket but that he and his partner inventoried the jacket. Officer Mostkowski also testified that when he spoke to defendant at the third district station, he got defendant's basic information, and stated that he thought he got the information off of defendant's identification (ID) card. When asked if he would have inventoried defendant's ID, Officer Mostkowski said he would not have and instead would have "[l]et him take it. Take it to the lock-up with him."

¶ 13 The State next called Officer Meadows, who testified that on April 16, 2014, sometime after 2:30 p.m., he was on patrol with his partner. Around that time, he heard over his dispatch radio the description of an offender that fellow officers were chasing. Officer Meadows stated that the description was of "a male black about five-five with a Chicago Bulls jacket on, medium complected, hairstyle of a mohawk." Officer Meadows testified that while he and his partner were touring the area, at approximately 6830 South Michigan Avenue, he saw a Chicago Bulls jacket underneath a car in the alley, which was "in the area of the last direction that I heard the guys give out of where the offenders [sic ] was possibly going." Officer Meadows testified that he did not recover the jacket at that time and instead continued to search the area, believing that the subject offender was nearby in light of the jacket's location.

¶ 14 Officer Meadows further stated that he observed someone who matched the description given over dispatch, and whom he identified in court as defendant, on the rear porch of the building at 6926 South Michigan Avenue, which was the building next to where the officer saw the Bulls jacket under the car. Officer Meadows testified that when he saw defendant on that rear porch, he was wearing blue jeans and had a mohawk hairstyle. Officer Meadows then announced his office and told defendant to come to him. Defendant did not immediately comply so the officer took steps toward defendant, grabbed him, and placed defendant in custody. Officer Meadows testified that he then told dispatch that he had detained a possible offender. He also stated that Officers Caribou and Mostkowski came to the location where he had detained defendant and they identified him as the suspect they had been looking for. Officer Meadows testified that his partner then recovered the jacket from underneath the car and Officers Caribou and Mostkowski took the jacket with them and defendant.

¶ 15 On cross-examination, Officer Meadows testified that he did not go through the pockets of the Bulls jacket before handing it over to Officers Caribou and Mostkowski. Also regarding the jacket, the following relevant exchange occurred:

"Q. Did you see your partner [go through the pockets of the jacket]?
A. I remember him holding the jacket. I can't say if he went through the pockets or anything because I had the offender, so-
Q. So, you never found an I.D. of someone else in that jacket, is that correct?
A. No, my partner went through the jacket.
Q. And he didn't show you any identification recovered from that jacket?
A. I saw an I.D. I saw an I.D. card.
Q. From the jacket?
A. I don't know. I think it came from the jacket. I'm not sure. I didn't recover it from the jacket.
Q. Did you ever see the information on that card?
A. Yes."

Defense counsel then asked Officer Meadows, "Now the identification that you recovered, that wasn't [defendant's], was it?" The State objected on the basis of hearsay, the court sustained the objection, and the officer did not provide an answer.

¶ 16 The parties stipulated to an Illinois State Police certification that stated defendant did not have a valid FOID card. The parties also stipulated that the shotgun in question was originally inventoried under inventory No. 13151436, tested at the police forensics lab, and then re-inventoried under No. 13152429.

¶ 17 The trial was commenced and continued to July 13, 2015. On that date, the State rested its case-in-chief and the defense informed the court that it was filing a motion to dismiss or strike evidence based on destruction of evidence. Defendant's motion to dismiss or strike evidence argued that because defendant had filed a motion for discovery, the State was on notice that evidence must be preserved. The defendant's motion further asserted that the police's failure to preserve the Bulls jacket that defendant was observed wearing on the date of his arrest required either dismissal of the charges or the striking of any testimony regarding the jacket.

¶ 18 The State filed its response on August 6, 2015, stating that "according to ICLEAR,[ ] the Bulls coat in question was destroyed by ERPS along with the other 'personal property' of the Defendant (cell phones). No explanation or date of destruction is provided." The State argued that although the defense filed a general discovery motion, the defense never filed for a preservation order for the Bulls jacket. The State further asserted that defendant's motion should be denied because he failed to show how the inadvertent destruction of the jacket prejudiced defendant, who was not wearing the jacket when he was arrested, and was identified by his "extremely unique [m]ohawk hair style rather than reliance on an item of clothing." Additionally, the State contended that defendant sought the two most severe sanctions, which were not warranted by the officers' conduct in this case.

¶ 19 On August 12, 2015, the defense sought and was granted leave to amend its motion to only seek dismissal as relief. As a result, the court struck part of defendant's prayer for relief, namely, the portion wherein defendant asked that testimony related to the destroyed evidence be stricken. Thereafter on that date, the parties orally argued the motion to dismiss. Defense counsel argued that the jacket could have been exonerating because "it could go against how it was described by police officers. It could be a very large jacket that did not fit [defendant]. And it could have this identification card in it, which could be presented as evidence exonerating [defendant]."

¶ 20 The court denied defendant's motion to dismiss, noting that the Bulls jacket was marked as available for return to owner, and even if the police attempted to notify defendant at his home, he would not have received the notice because he was incarcerated. The record on appeal contains an inventory record sheet for the Bulls jacket, in which the "property available for return to owner" box is checked. The court further explained its decision as follows:

"But since it is not a case where the item was to be held for investigation, and or evidence, it was a return to the owner. Or it should have been marked that way, is also another story.
The recent Illinois Supreme Court case involving the destruction of evidence, specifically regarding a video * * *. That is [ People v. Kladis , 2011 IL 110920, 355 Ill.Dec. 933, 960 N.E.2d 1104 ].
In that case[,] the Illinois Supreme Court held that the proper remedy there was the officer could only testify to events other than those on the recording.
The defense, in its motion, has stricken that prayer for relief. As to the striking of any testimony regarding the applicable statute for dismissal of the case.
As the State has pointed out, at the time the defendant was arrested, the identification was not based on the Bulls jacket, since he was not wearing [it] at the time. There was a description[.] Officer Caribou was in very close proximity to the defendant. Observed him there.
Based on what has been presented, as far as the motion, the fact that the jacket was not destroyed, having been marked for evidence or investigation, but rather was destroyed, at some point, after having been marked as property available for return.
At this time the Motion to Dismiss would be denied."

¶ 21 The defense then made a motion for a directed finding, which the court denied. The parties entered a stipulation that the Bulls jacket inventoried in this matter was destroyed and that the parties had "no idea of the circumstances surrounding the destruction." The parties also stipulated that the defense received defendant's clothing from the Cook County Sheriff's Department on April 17, 2014, including "one shoes [sic ] multicolored, one pant, black, and two shirts multicolored."

¶ 22 Defendant waived his right to testify, and the defense rested its case without presenting any evidence. Closing argument was thereafter presented. In closing, defense counsel emphasized that although all three testifying officers stated that defendant was wearing blue jeans on the date in question, the clothing received from the sheriff demonstrated that defendant's pants were actually black. The court asked if the defense would like to examine the pants, and defense counsel replied in the affirmative. Upon closer inspection, the court described the pants as "True Religion brand jeans." In its rebuttal, the State asserted, "It appears defendant is wearing jeans when arrested, just black jeans, not blue jeans, as the officer[s] testified to."

¶ 23 In delivering its finding of guilt on all counts, the trial court stated that it thought Officer Caribou's testimony, alone, was enough to meet the State's burden. The court noted that the term "blue jeans" is a generic term that often encompasses jeans that are not just "traditional Levi Strauss blue." After considering the totality of the testimony, the court found that the State established its case beyond a reasonable doubt, specifically because defendant was apprehended within a very short period of time and only one block over from where he was observed with the shotgun. Additionally, the court noted that defendant matched the description in terms of "height, hairstyle, as well as facial observations, made by Officers Caribou and Mostkowski."

¶ 24 On September 14, 2015, defendant filed a motion for a new trial, which was granted in part and denied in part. Defendant's motion argued that the court erred in denying his motion to dismiss; the officers' testimony contradicted one another; defendant was wearing black, not blue, jeans when arrested; and that the State failed to prove an element on counts IV, V, VI, X, and X1. The trial court granted the motion in part by dismissing counts IV, V, and VI because the statute involved made reference to "handgun, pistol, or revolver" but defendant was caught with a shotgun. The court also dismissed counts X and XI because there was no evidence presented as to the length of the shotgun. The motion was denied as to all other counts, and the court clarified that there was a finding of guilt as to counts II, III, VII, VIII, and IX.

¶ 25 Also on that date, the court conducted a sentencing hearing and ultimately sentenced defendant to eight years' imprisonment. Defendant subsequently filed a motion to reconsider sentence, which was denied.

¶ 26 Defendant filed his timely notice of appeal on October 13, 2015.

¶ 27 ANALYSIS

¶ 28 Defendant raises the following arguments on appeal: (1) his due process rights were violated under both federal and state laws when the police disposed of the Bulls jacket and an ID, which were pieces of evidence that could exonerate defendant and (2) his eight-year sentence was an abuse of the trial court's discretion as excessive in light of defendant's rehabilitative potential. However, in defendant's reply brief, he informed this court that he "has completed his prison sentence and consequently respectfully withdraws Argument II, which asked for a new sentencing hearing." Thus, we only address defendant's first argument regarding the destruction of evidence, an alleged discovery violation, that he asserts violated his due process rights.

¶ 29 "A discovery violation may be analyzed as either a due process violation under Arizona v. Youngblood , 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), or under Illinois Supreme Court Rule 415(g)(i) (eff. Oct. 1, 1971)." People v. Borys , 2013 IL App (1st) 111629, ¶ 17, 374 Ill.Dec. 360, 995 N.E.2d 499.

¶ 30 Due Process Violation

¶ 31 Defendant asserts that his due process rights were violated when the police acted in bad faith by not following proper procedure and destroying the Bulls jacket, an essential piece of evidence that was not otherwise available. The State responds that the trial court properly denied defendant's motion to dismiss because the Bulls jacket and ID were not materially exculpatory evidence and were only inadvertently destroyed. We agree with the State and find that the trial court properly denied defendant's motion to dismiss.

¶ 32 In this case, defendant filed a motion to dismiss based on destruction of evidence, arguing that because defendant had filed a motion for discovery, the State was on notice that the jacket should have been preserved. The defendant initially contended that failure to preserve the jacket required either dismissal of the charges or the striking of any testimony regarding the jacket. However, defendant was subsequently granted leave to amend his motion to omit his request to strike all testimony regarding the jacket. Thus, the only sanction defendant sought before proceeding to hearing on the motion was dismissal of the charges. The trial court denied defendant's motion to dismiss, noting that the Bulls jacket was marked as available for return to owner. The court also stated that, in Kladis , the proper remedy was excluding testimony regarding the destroyed evidence, but that defendant had withdrawn his request for such relief here. Additionally, the trial court pointed out that defendant was not even wearing the Bulls jacket at the time he was arrested.

¶ 33 When considering the destruction of evidence, Illinois courts have applied the analysis set forth in Youngblood . People v. Sutherland , 223 Ill. 2d 187, 235, 307 Ill.Dec. 524, 860 N.E.2d 178 (2006). In Youngblood , the defendant was charged with kidnapping and sexually assaulting a minor, but the police failed to refrigerate the victim's semen-stained clothes or timely test the stains. Youngblood , 488 U.S. at 52-53, 109 S.Ct. 333. The State did not present any scientific identity evidence, but the victim had identified the defendant, and the defendant was convicted. Id. at 53-54, 109 S.Ct. 333. The Supreme Court noted that the police do not have "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution" and held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Id. at 58, 109 S.Ct. 333. However, prior to reaching this conclusion, the Court stated, "The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady [v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence." Id. at 57, 109 S.Ct. 333.

¶ 34 Defendant argues that the Bulls jacket and ID were "key piece[s] of evidence" and were exculpatory because they could have established misidentification. The State responds that the jacket and ID were "borderline irrelevant" and thus were only potentially useful evidence. We agree with the State. Defendant was not wearing the jacket when he was detained, and shortly thereafter, he was identified by Officers Caribou and Mostowski as being the individual they had just observed loading the shotgun. There is no evidence that Officers Caribou and Mostkowski were shown the jacket that Officer Meadows recovered from under the car before identifying defendant as the individual they were looking for. Thus, there is no evidence that the Bulls jacket played any role in defendant's identification by Officers Caribou and Mostowski. Further, Officer Mostkowski unambiguously testified that he recognized defendant's face and had gotten a clear view of his face because defendant had looked "directly in [his] direction." We also reject defendant's contention that perhaps the jacket would be too big or that someone else's ID was in the pocket. This is mere speculation, and the record does not support this proposition. Even if the jacket was big on defendant or the ID belonged to someone else, that does not make either item exculpatory in light of the clear, un-contradicted identification testimony from the officers in this case, which was not based on defendant wearing the Bulls jacket or the information on the ID. In fact, we can imagine a scenario where the testimony regarding the jacket and ID were excluded and believe the State would still meet its burden in proving defendant's guilt beyond a reasonable doubt. As such, we conduct the rest of our analysis based on our finding that the destroyed evidence here was merely potentially useful, rather than exculpatory.

¶ 35 We now turn back to setting forth relevant precedent. In People v. Newberry , 166 Ill. 2d 310, 315, 209 Ill.Dec. 748, 652 N.E.2d 288 (1995), the Illinois Supreme Court arguably carved an exception to Youngblood for situations where the inadvertently lost or destroyed evidence would have been decisive to the outcome of the case. In Newberry , a police field test resulted in no indication of cocaine present in the substance but a lab test found the presence of cocaine. Id. at 312, 209 Ill.Dec. 748, 652 N.E.2d 288. The substance at issue was destroyed before the defendant could test it, and there was no credible evidence of bad faith by the government. Id. at 312-13, 209 Ill.Dec. 748, 652 N.E.2d 288. Our supreme court found Youngblood distinguishable because the defendant's ability to test the substance at issue was "essential to and determinative of the outcome of the case," and the defendant did not "have any realistic hope of exonerating himself absent the opportunity to have [the substance] examined by his own experts." Id. at 315, 209 Ill.Dec. 748, 652 N.E.2d 288.

¶ 36 In Illinois v. Fisher , 540 U.S. 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (per curiam ), the United States Supreme Court specifically rejected Newberry 's exception to Youngblood when applied in the context of federal due process analysis. The Court explained,

"We have never held or suggested that the existence of a pending discovery request eliminates the necessity of showing bad faith on the part of police. Indeed, the result reached in this case demonstrates why such a per se rule would negate the very reason we adopted the bad-faith requirement in the first place: to 'limi[t] the extent of the police's obligation to preserve evidence to reasonable grounds and confin[e] it to that class of cases where the interests of justice most clearly require it.' " Id. at 548, 124 S.Ct. 1200 (quoting Youngblood , 488 U.S. at 58, 109 S.Ct. 333 ).

¶ 37 Defendant cites to Justice Stevens's succinct concurrence in Fisher as support for his contention that a showing of bad faith is not required under state law. Defendant asserts that although his federal due process rights were not violated, it is possible, even in light of Fisher , that his state due process rights were violated because in his concurrence, Justice Stevens specifically stated, "The judgment of the Illinois Appellate Court has limited precedential value, and may well be reinstated on remand because the result is supported by the state-law holding in People v. Newberry , [166 Ill. 2d 310, 209 Ill.Dec. 748, 652 N.E.2d 288 (1995) ]." Id. at 550, 124 S.Ct. 1200 (Stevens, J., concurring).

¶ 38 A review of cases decided subsequent to Fisher is pertinent to resolving this conflict.

"With respect to the due-process clause of the fourteenth amendment [citation], Fisher supersedes Newberry because the Supreme Court of the United States is 'the final arbiter on issues involving questions of the [f]ederal constitution' [citation]. But the Illinois Constitution also has a due-process clause [citation]. State courts are free to interpret their own constitutional provisions more broadly than the Supreme Court of the United States interprets similar federal constitutional provisions." People v. Kizer , 365 Ill. App. 3d 949, 960, 303 Ill.Dec. 368, 851 N.E.2d 266 (2006).

¶ 39 In Kizer , the court stated that it was faced with "the following question: Would our own supreme court accept the analysis in Fisher when interpreting the due-process clause of the Illinois Constitution?" Id. The court "predicted" that the answer to this question would be yes for four reasons. Id. Those four reasons are (1) "when discussing the concept of due process in Newberry , the supreme court made no distinction between the due-process clause of the Illinois Constitution and that of the federal constitution"; (2) in People v. Pecoraro , 175 Ill. 2d 294, 318, 222 Ill.Dec. 341, 677 N.E.2d 875 (1997), our supreme court declined to interpret the Illinois due process clause more broadly than the Supreme Court interpreted the federal due process clause; (3) " Fisher purported merely to interpret or clarify Youngblood , a decision that our own supreme court has repeatedly followed when assessing due process"; and (4) "in People v. Caballes , 221 Ill. 2d 282, 313, 303 Ill.Dec. 128, 851 N.E.2d 26 (2006), the supreme court recently reaffirmed its commitment to the 'limited lockstep analysis.' " Kizer , 365 Ill. App. 3d at 960-61, 303 Ill.Dec. 368, 851 N.E.2d 266.

¶ 40 The Kizer court pointed out that our state constitution's due process clause has nearly identical language to the federal constitution. Id. at 961, 303 Ill.Dec. 368, 851 N.E.2d 266. The court concluded that the Illinois due process clause had the same meaning as its federal counterpart, and thus, it concluded that our supreme court would follow Fisher when analyzing our state constitution's due process clause. Id.

¶ 41 Similarly, in People v. Voltaire , 406 Ill. App. 3d 179, 183, 346 Ill.Dec. 712, 941 N.E.2d 270 (2010), the court stated, "[w]e agree with Kizer that, if confronted with the issue, the supreme court would follow Fisher ." The court opined, " Newberry appears to be nothing more than an application of [ California v. Trombetta , 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984),] and Youngblood , and the Supreme Court has now clarified that the application of those cases to this situation contradicts the holding in Newberry ." Id.

¶ 42 Further, this court, in People v. Moore , 2016 IL (1st) 133814, ¶ 28, 401 Ill.Dec. 236, 49 N.E.3d 938, observed that "[a]lthough we do not have further guidance from our supreme court, subsequent to Fisher , the appellate court has rejected Newberry and followed Fisher ." The Moore court specifically stated that it too found the reasoning in Kizer and Voltaire "persuasive" and opted to analyze the facts before it under the analysis set forth in Fisher . Id. ¶ 31.

¶ 43 Here, we see no reason to depart from the aforementioned decisions of this court and the other appellate districts. Defendant does not point to, and we have not found, any cases that deviate from this trend. We find the Kizer court's logic, namely, the four reasons that led it to predict that our supreme court likely would not continue to follow Newberry in light of Fisher , to be rational and convincing. See Kizer , 365 Ill. App. 3d at 960-61, 303 Ill.Dec. 368, 851 N.E.2d 266. As a result, we apply the analysis as set forth in Youngblood and Fisher , which means unless defendant can show bad faith on the part of the police, the failure of the police to preserve potentially useful evidence will not constitute a denial of due process of law. See Youngblood , 488 U.S. at 58, 109 S.Ct. 333.

¶ 44 Having already determined that the evidence at issue here was merely "potentially useful," we next address whether the police acted in bad faith. Defendant argues that the police here acted in bad faith where they failed to follow proper procedure that resulted in the destruction of otherwise unavailable evidence. The State responds that defendant has failed to offer anything but mere speculation regarding bad faith conduct by the police. The State specifically argues that defendant's claim that the police acted in bad faith due to their failure to follow proper procedure is solely based on Officer Caribou's mistaken testimony that he put a hold on the Bulls jacket.

¶ 45 Defendant primarily relies on People v. Walker , 257 Ill. App. 3d 332, 195 Ill.Dec. 507, 628 N.E.2d 971 (1993), to support his contentions that the officers here acted in bad faith. In Walker , the sole issue the court addressed was whether the trial court erred in dismissing the defendant's indictment on the basis that the defendant's due process rights were violated when the police destroyed material evidence. Id. at 333, 195 Ill.Dec. 507, 628 N.E.2d 971. At trial, the victim testified that on the night in question, she was waiting to pick up her order in a pizza restaurant when the defendant took her wallet and attempted to take money that she had in her hand. Id. She recalled during her testimony that at that time, the defendant was wearing "a brown leather cap, a light-colored jacket and blue jeans." Id. After the police arrested the defendant, he was brought back to the crime scene where he was identified by the victim. Id. The victim testified that when the defendant exited the police car, he was wearing different clothes than when she saw him at the pizza restaurant and that he had mud on him, but that his face looked the same. Id. After the victim's testimony, the State informed the court and the defense that some inventoried evidence had been destroyed six weeks after the arrest and eight months prior to trial, "including a plastic bag, a jacket, a hat, a knife, a grey suit and a pair of brown leather gloves." Id. at 333-34, 195 Ill.Dec. 507, 628 N.E.2d 971.

¶ 46 On appeal, the State argued that the defendant's motion to dismiss the indictment should not have been granted because there was no showing of bad faith on the part of the police. Id. at 335, 195 Ill.Dec. 507, 628 N.E.2d 971. The court rejected the State's argument that the bag and clothing were destroyed in accordance with proper police procedure and, therefore, in good faith. Id. The court found that the police had acted in bad faith where the evidence was destroyed six weeks after the defendant's arrest because "a reasonably prudent police officer acting in good faith would not assume that material evidence would no longer be needed six weeks after the arrest." Id. at 335-36, 195 Ill.Dec. 507, 628 N.E.2d 971.

¶ 47 The facts underlying the case before us are markedly different than what occurred in Walker . Here, there is no evidence of when the jacket and ID were destroyed. Additionally, the inventory sheet reflects that the Bulls jacket was marked as "property available for return to owner," which signifies that a hold was not placed on the jacket, contrary to Officer Caribou's testimony. As the trial court mentioned, it is possible that the police attempted to contact defendant to return the items to him given the demarcation on the inventory sheet but that he was unable to be reached because he was incarcerated. Also, because there is no evidence of when the jacket was destroyed, we are unaware if there was, in fact, time for defendant to examine the jacket. Thus, we cannot say that the destruction of the jacket was not in accordance with normal police procedures. In Walker , that the evidence was destroyed six weeks after the defendant's arrest rendered the police's actions in bad faith. Here, there is no evidence that the police acted in bad faith to destroy the jacket. Although Officer Caribou testified that he was "positive" he had put a hold on the jacket, the inventory sheet shows that, in fact, a hold was not placed on the jacket. We do not find that this testimony by Officer Caribou evidences any bad faith on the part of the police. Further, as stated before, the Bulls jacket and the ID were nearly irrelevant in this case given the circumstances surrounding the officers' identification of defendant.

¶ 48 Defendant asserts that it is very likely that the ID in the pocket was not defendant's because defendant had his own ID, which Officer Mostowski used to take his information at the station. We find this contention to be based on pure speculation. In fact, a close review of Officer Meadows's testimony shows that it is unclear whether an ID was even in the pocket of the Bulls jacket. Officer Meadows testified that his partner went through the jacket. He further stated that he saw an ID, but was "not sure" if it had come from the pocket of the jacket. Thus, there is no evidence that actually establishes that an ID was removed from the Bulls jacket and consequently destroyed therewith. Defendant argues that the failure to inventory the ID was a deviation from proper procedure, evidencing bad faith. However, Officer Mostowski testified that he would not have placed a hold on the ID but would have given it back to defendant to take with him to lockup. As a result, we find no evidence of bad faith on the part of the police here. Because defendant could not show bad faith by the police in the destruction of potentially useful evidence, his claim that he was deprived of his due process rights fails under the Youngblood and Fisher analyses.

¶ 49 Discovery Violation

¶ 50 Having determined that defendant's due process rights were not violated under either the federal or state constitutions, we next address defendant's alternative contention that even if the police did not act in bad faith when they destroyed the Bulls jacket, the court improperly denied his motion to dismiss based on the State's destruction of the evidence, which is a discovery violation.

¶ 51 As an initial matter, we note the parties disagree as to the applicable standard of review. Citing People v. Lovejoy , 235 Ill. 2d 97, 118, 335 Ill.Dec. 818, 919 N.E.2d 843 (2009), defendant argues that because the facts that gave rise to the discovery violation are not in dispute here, we should conduct a de novo review. The State asserts that an abuse of discretion standard of review applies because the de novo standard used in Lovejoy was only pertinent to a reviewing court's determination as to whether a discovery violation occurred and that an abuse of discretion standard governs whether the trial court's decision regarding whether to impose a sanction was proper. We agree with the State. The threshold issue is not whether the court below ordered an appropriate discovery sanction, but instead is whether the State was, in fact, guilty of a discovery violation. People v. Hood , 213 Ill. 2d 244, 256, 290 Ill.Dec. 207, 821 N.E.2d 258 (2004). When a reviewing court addresses that threshold inquiry and the parties do not dispute the facts giving rise to the alleged discovery violation, then de novo review applies because a purely legal question is involved.

Lovejoy , 235 Ill. 2d at 118, 335 Ill.Dec. 818, 919 N.E.2d 843. Once that determination is made, then the question becomes whether the trial court made the correct decision as to the appropriate discovery sanction, which is subject to an abuse of discretion standard. Hood , 213 Ill. 2d at 256, 290 Ill.Dec. 207, 821 N.E.2d 258. As a result, we review de novo whether a violation occurred, and we review the trial court's decision to deny the motion to dismiss for an abuse of discretion.

¶ 52 In relevant part, Rule 412 states:

"(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
* * *
(g) Upon defense counsel's request and designation of material or information which would be discoverable if in the possession or control of the State, and which is in the possession or control of other governmental personnel, the State shall use diligent good-faith efforts to cause such material to be made available to defense counsel; and if the State's efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel." Ill. S. Ct. R.

412(a), (g) (eff. Mar. 1, 2001).

¶ 53 Rule 415(g)(i) provides:

"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." Ill. S. Ct. R. 415(g)(i) (eff. Oct. 1, 1971).

¶ 54 "[T]o establish a discovery violation under Illinois Supreme Court Rule 415(g)(i) it is only required to show that 'a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto.' " People v. Kladis , 403 Ill. App. 3d 99, 105, 343 Ill.Dec. 58, 934 N.E.2d 58 (2010) (quoting Ill. S. Ct. R. 415(g)(i) (eff. Oct. 1, 1971) ).

¶ 55 As noted above, we must first determine whether a discovery violation occurred here. We find that the evidence before us does not clearly indicate whether a discovery violation did or did not occur. Defendant filed his motion for discovery on July 10, 2014, which was approximately three months after defendant's arrest. The parties stipulated that the Bulls jacket inventoried in this matter was destroyed, and that the parties had "no idea of the circumstances surrounding the destruction." Thus, it is impossible to know whether the jacket was destroyed prior to, or subsequent to, the filing of defendant's motion for discovery. Although Officer Caribou testified that he was "positive" he had placed a hold on the jacket, the inventory sheet was marked as "property available for return to owner." Notwithstanding the foregoing, we presume arguendo that a discovery violation occurred here and turn next to whether the denial of the motion to dismiss was an abuse of discretion.

¶ 56 Defendant relies on People v. Koutsakis , 255 Ill. App. 3d 306, 194 Ill.Dec. 272, 627 N.E.2d 388 (1993), wherein the court affirmed the trial court's sanction of the State for destruction of evidence. In Koutsakis , the State could not produce the tape recording related to the stop and search of the defendant's vehicle, and the trial court determined that the proper sanction was to limit the testimony of the police officers involved. Id. at 314, 194 Ill.Dec. 272, 627 N.E.2d 388. In reaching its decision to enter this sanction, the trial court noted that State police logs were not a sufficient substitute for the tape since the logs did not contain information regarding the officer's activities during the stop and search. Id. On appeal, the court found no abuse of discretion and concluded "the trial court properly fashioned an appropriate sanction which was limited and proportionate to the discovery violation." Id.

¶ 57 We find that the trial court did not abuse its discretion when it denied defendant's motion to dismiss based on destruction of evidence. "[A] trial court may properly fashion a sanction for a discovery violation when it is proportionate to the magnitude of the violation. [Citation.] The trial court is in the best position to determine an appropriate sanction based upon the effect the discovery violation will have upon the defendant." Id. Here, the only sanction sought by defendant was dismissal of the charges. The original iteration of his motion to dismiss included a request for the exclusion of any testimony regarding the jacket. However, defense counsel sought and was granted leave to amend the motion to omit from the prayer for relief the request to strike testimony. Thus, the trial court was faced with determining whether the dismissal of the charges here would be proportional to the conduct that led to the destruction of evidence, and ultimately determined it would not be. We agree because the destruction was inadvertent and there was conflicting evidence of whether a hold was ever placed on the jacket in the first place.

¶ 58 In Koutsakis , there was no adequate substitute for the destroyed evidence. Id. However, in this case, a substitute for the destroyed evidence was not relevant because the officers' identification of defendant was not based on the jacket but instead was based on defendant's appearance and his "unique" mohawk hairstyle. Additionally, in Koutsakis , it was clear that the defendant requested the tape "before the State destroyed it." (Emphasis in original.) Id. at 312, 194 Ill.Dec. 272, 627 N.E.2d 388. Here, it is possible that the jacket was destroyed before defendant filed his motion for discovery. However, even if defendant's motion was filed prior to destruction, we would still not find that the trial court's decision was an abuse of discretion. By withdrawing part of his prayer for relief in his motion to dismiss, defendant unambiguously indicated to the court that he only sought the sanction of dismissal. Pursuant to Rule 415, the trial court could arguably have imposed any "other order as it deems just under the circumstances" but opted not to. Ill. S. Ct. R. 415(g)(i) (eff. Oct. 1, 1971). We find that in light of defendant's withdrawal of his specific request to exclude testimony regarding the jacket, the trial court's decision to merely deny the motion to dismiss, and not impose any other sanctions, was not an abuse of discretion. Dismissal of the charges against defendant would have been a disproportionate sanction. In light of the foregoing, we find no indication that the denial of defendant's motion was an abuse of discretion and similarly deny defendant's request that we impose a sanction less severe than dismissal.

¶ 59 CONCLUSION

¶ 60 Based on the foregoing, we find the trial court properly denied defendant's motion to dismiss and affirm its decision.

¶ 61 Affirmed.

Justices Cunningham and Delort concurred in the judgment and opinion.

      The acronym "ICLEAR" signifies the Illinois Citizen and Law Enforcement Analysis and Reporting database, which is a "system that stores data relating to criminal offenders in Illinois." Samoylovich v. Montesdeoca , 2014 IL App (1st) 121545, ¶ 7, 382 Ill.Dec. 677, 13 N.E.3d 90.

      For purposes of context, "[u]nder our limited lockstep doctrine, we construe [a] * * * clause of our state constitution the same way [as the Supreme Court interprets the similar federal clause], unless any of the narrow exceptions to lockstep interpretation apply." People v. Fitzpatrick , 2013 IL 113449, ¶ 28, 369 Ill.Dec. 527, 986 N.E.2d 1163.

      In this section, defendant again asserts that he has a viable state-law due process claim under Newberry in the context of an Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001) discovery violation. However, we have already rejected defendant's invitation to reinstate the Newberry holding subsequent to Fisher . As such, defendant's state-law based due process challenge fails here for the same reasons set forth previously in this order.


source: Caselaw Access Project

author: Robb, Judge.

license: Public Domain

text:
    LOCKERBIE GLOVE FACTORY TOWN HOME OWNERS ASSOCIATION, INC., Andre B. Lacy, Julia L. Lacy, Elliot J. & Serena Androphy, Cherri D. Hobgood, James & Cheryl Arnold, and William B. Young, Appellants-Petitioners, v. INDIANAPOLIS HISTORIC PRESERVATION COMMISSION, and Dan Jacobs, Appellees-Respondents.
    Court of Appeals Case No. 49A02-1708-CT-1681
    Court of Appeals of Indiana.
    FILED June 8, 2018
    Attorneys for Appellants: James K. Gilday, Gilday & Associates, P.C., Indianapolis, Indiana, Gene R. Leeuw, Leeuw Oberlies & Campbell, P.C., Indianapolis, Indiana
    Attorney for Appellee Indianapolis Historic Preservation Commission: Thomas J.O. Moore, Office of Corporation Counsel, Indianapolis, Indiana
    Attorneys for Appellee Dan Jacobs: Jason A. McNiel, Derek R. Molter, Samuel Gardner, Ice Miller LLP, Indianapolis, Indiana
   Robb, Judge.

Case Summary and Issues

[1] Lockerbie Glove Factory Town Home Owners Association, Inc., and eight residents of the townhomes (collectively "Remonstrators") appeal a decision by the Indianapolis Historic Preservation Commission ("Commission") granting a certificate of appropriateness to Dan Jacobs for the purpose of constructing a retail, residential, and parking project known as "Block 20" on a parcel of land in the Lockerbie Square Historic District in Indianapolis, Indiana. The Remonstrators raise several issues for our review which we consolidate and restate as: 1) whether a Commission member was presumptively biased, making the Commission decision invalid, and if there is no presumed bias, whether the trial court should have granted the Remonstrators' motion to compel to allow discovery regarding actual bias; and 2) whether the trial court erred in denying the Remonstrators' petition for judicial review. Concluding the Remonstrators failed to show that the Commission decision was invalid due to bias or that they are otherwise entitled to relief from the Commission decision, we affirm.

Facts and Procedural History

[2] The Commission was created in 1967. In 1982, the Commission's enabling legislation was recodified at Indiana Code chapter 36-7-11.1. The Commission is a nine-member appointed board tasked with preserving historically significant areas and structures in Indianapolis. The Commission designates historic districts, which may be a single structure or a larger area, adopts a historic preservation plan for the area, and then has design and zoning review jurisdiction within those districts. After the adoption of a historic preservation plan for any historic district, "all governmental agencies shall be guided by and give due consideration to the plan in any official acts affecting the area." Ind. Code § 36-7-11.1-8(c). Pursuant to Indiana Code section 36-7-11.1-9(a), "[a] person may not construct any exterior or architectural structure or feature in any historic area ... until the person has filed with the secretary of the [C]ommission an application for a certificate of appropriateness ...." The Commission must hold a public hearing on any such application and "determine whether the proposal will be appropriate to the preservation of the area and to the furtherance and development of historic preservation." Ind. Code § 36-7-11.1-9(c). If the Commission determines the proposed construction will be appropriate, the secretary shall issue a certificate of appropriateness. Ind. Code § 36-7-11.1-10(a). However, the Commission "may impose any reasonable conditions, consistent with the historic preservation plan, upon the issuance of a certificate of appropriateness ...." Ind. Code § 36-7-11.1-10(b). "A final determination of the [C]ommission upon an application for certificate of appropriateness is subject to judicial review in the same manner and subject to the same limitations as a final decision of a board of zoning appeals under IC 36-7-4." Ind. Code § 36-7-11.1-10(c).

[3] The Commission first created a historic preservation plan ("historic plan") for Lockerbie Square in 1968, which was revised and updated in 1978 and again in 1987. The original Lockerbie Square historic district (known as the "Historic Core") is a four-block area bounded by East Street to the west, Michigan Street to the north, College Avenue to the east, and New York Street to the south. The historic district has since been expanded to include additional properties outside but contiguous to the Historic Core (known as the "Secondary Area"). In 1973, the Lockerbie Square People's Club, a neighborhood association, was formed to promote the revitalization of the Lockerbie Square neighborhood, and eventually a group of residents formed Lockerbie Square Foundation, Inc., a not-for-profit focused on fundraising for preservation projects.

[4] The 1968 plan "provided planning recommendations to guide the future development of the area." Appendix of Appellants, Volume 6 at 13. But the plan "did not reflect the maturing preservation philosophy gaining acceptance around the country which promotes historic districts as neighborhoods in which people live ...." Id. Therefore, the 1968 plan was revised in 1978 in an attempt "to preserve the unique historic character of Lockerbie Square by encouraging the revitalization of the district as a dynamic urban neighborhood ...." Id. The 1978 plan "sought to assist [the rehabilitation] effort through education and through the review of all development and redevelopment activities within the district." Id. The 1987 update "follows a recommendation incorporated into the 1978 plan" to shift the emphasis to new development on existing vacant land once the majority of historic properties were rehabilitated. Id.

[5] In 2001, the Athenaeum Foundation acquired property at 428 N. East Street and sought from the Commission a certificate of appropriateness that would allow it to demolish the building then existing on that property and turn the property into a paved surface parking lot. The property in question is part of the Secondary Area of the Lockerbie Square Historic District, bounded on the west by Cleveland Street, on the north by Michigan Street, on the east by East Street, and on the south by Allegheny Street. The People's Club supported the Athenaeum's request to demolish the building, but opposed the property being used as a parking lot on a long-term basis as the historic plan's recommended land use for the property was residential. The Commission issued the certificate of appropriateness but, pursuant to its authority under Indiana Code section 36-7-11.1-10(b), required the following recorded covenants: that the certificate of appropriateness would allow use of the property as a parking lot for a period of three years; that the property would not be used as a parking lot beyond those three years unless the Athenaeum had applied for and was granted another certificate of appropriateness; that during the three year period, the Athenaeum would use reasonable and good faith efforts to support alternative parking solutions within two blocks of the property; and that if reasonable alternative parking was established within two blocks within three years, the Athenaeum would "diligently pursue using the [property] for residential purposes pursuant to the [historic plan]." Id. , Vol. 4 at 13-14.

[6] Over the next fifteen years, the Athenaeum worked with the People's Club and various other organizations to fulfill the covenant and develop the property. On April 28, 2016, Dan Jacobs submitted an application for a certificate of appropriateness for the Block 20 project on the property. The application describes the project as a "229 space parking garage, wrapped with 67 apartment units," with retail space on the first floor. Id. , Vol. 4 at 80. Jacobs held several meetings with Commission staff members, appeared at two preliminary review hearings, and made numerous changes to the plans in response to concerns voiced by the Commission and community members. By the time of the final hearing, the plans called for a five-story, multi-use building with sixty-seven apartment units, retail and gallery space on the first floor, a roof deck, and 261 internal parking spaces, including sixty-seven spaces for residents and 194 spaces for the public. The final hearing was scheduled for August 3, 2016.

[7] On July 27, 2016, the Remonstrators submitted a letter to the Commission outlining their objections to the project. The Remonstrators are all residents of the Lockerbie Glove Factory Town Homes, fifty-eight single family homes adjacent to the proposed development by virtue of being situated on the east side of East Street. They are not a part of, nor are they represented by, the People's Club. The Remonstrators raised several objections to Jacobs' application for certificate of appropriateness, including: 1) that the covenant prohibits anything other than residential use on the property; 2) the project violates the historic plan in multiple ways; 3) the project will increase noise in certain areas; 4) the project will adversely affect traffic on East Street; and 5) "[s]ome parts of the so-called residential portion of the development seem more like short-term leasing, which fits more the description of a hotel ...." Id. , Vol. 2 at 44.

[8] At the final hearing on August 3, 2016, the People's Club voiced its "strong support" of the project. Id. , Vol. 5 at 121. The Remonstrators, represented by James Gilday, Treasurer of the Glove Factory HOA, spoke in opposition to the application, raising as their "main point" the multiple violations of the historic plan. Id. at 122. The Remonstrators asked the Commission to "fulfill its duty to enforce the historic plan and disregard all other considerations to the contrary by rejecting this proposal." Id. at 128-29. A Commission staff member then addressed the Commission:

We've had probably a dozen meetings on this project over the last couple of months. And I think the comment that was made earlier about the design evolving for the better, staff would agree with that. And in addition to what's in the staff report, I would like to address some of the comments that were just made.... I would like to reiterate that the Lockerbie Square [historic] plan is a set of recommended guidelines for any project. Staff is not aware of anything in the plan being necessarily [a] requirement, so that somebody would be in violation of if they didn't comply with that, but rather a set of guidelines to direct staff in making a recommendation on the proposed design, which is what we did in the staff report.

Id. at 129-30. Commission staff recommended the application for a certificate of appropriateness be approved, and the recommendation was approved by the Commission five to one. One of the Commissioners voting to approve the certificate of appropriateness was Alex White. At the end of the first preliminary review hearing in June, Commissioner White had stated,

Mr. Jacobs, just one thing, you probably considered this. I was on the Athenaeum building committee for many years, and we had a devil of a time dealing with acoustics from the successful band shell and the interior theater. So I don't know if you have an acquisition[ ] on your consultant list yet, but that might be advice on how you treat this, especially the façade facing the Athenaeum.

Id. at 91-92.

[9] The Remonstrators then filed a petition for judicial review in Marion Superior Court. While the case was pending, the Remonstrators filed a motion to compel, seeking discovery from the Commission on the issue of the possible bias of Commissioner White in favor of the Athenaeum and Jacobs based on his statement from the first preliminary hearing quoted above. The trial court denied this motion. After briefing and oral argument on the petition for judicial review, the trial court issued its Findings of Fact, Conclusions of Law and Judgment denying the Remonstrators' petition and affirming the Commission's award of a certificate of appropriateness:

After the multiple hearings, the [Commission], in its expert discretion, voted to issue the Certificate of Appropriateness to Jacobs. [The Remonstrators'] arguments are generally invitations to reweigh the evidence properly considered by the [Commission], which this Court declines to do. [The Remonstrators] have not carried their heavy burden of proving that the [Commission's] decision in this matter was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or unsupported by substantial evidence.

Id. , Vol. 2 at 23. The Remonstrators now appeal.

Discussion and Decision

I. Standard of Review

[10] Indiana Code section 36-7-11.1-10(c) provides that the Commission's final determination regarding an application for a certificate of appropriateness "is subject to judicial review in the same manner and subject to the same limitations as a final decision of a board of zoning appeals under IC 36-7-4." Indiana Code section 36-7-4-1614(d) provides that a reviewing court, whether the trial court or this court,

shall grant relief ... only if the court determines that a person seeking judicial relief has been prejudiced by a zoning decision that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence.

A decision is arbitrary and capricious if it is "patently unreasonable[;] made without consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable person to the same conclusion." City of Indianapolis v. Woods , 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998), trans. denied. A decision is unsupported by substantial evidence if there is no "relevant evidence which a reasonable mind might accept as adequate to support a conclusion." Id. The party seeking judicial review has the burden of demonstrating the invalidity of the decision. Ind. Code § 36-7-4-1614(a).

[11] When we review an administrative decision, we may not reweigh the evidence or reassess the credibility of the witnesses. Metro. Bd. of Zoning Appeals Div. III of Marion Cty. v. Traders Point Assoc. of Neighborhoods , 81 N.E.3d 1120, 1124 (Ind. Ct. App. 2017), trans. denied. We must accept the facts as found by the board, but we review questions of law de novo. Id. We presume the determination of a board or agency with expertise in a given subject is correct. Flat Rock Wind, LLC v. Rush Cty. Area Bd. of Zoning Appeals , 70 N.E.3d 848, 858 (Ind. Ct. App. 2017), trans. denied.

II. Commission Bias

[12] The Remonstrators contend the Commission decision is invalid because one of the Commission members was "presumptively biased" in favor of the application. Br. of Appellants at 53. They base their assertion of bias on a single statement Commissioner White made at the first review hearing, wherein he noted that he had been on the Athenaeum board for several years and suggested that Jacobs consult an acoustician, if he had not already, to consider the acoustic effects of the project in relation to the existing Biergarten at the Athenaeum.

[13] Despite this statement being made at a public hearing at which the Remonstrators' representative was present, the Remonstrators made no objection to Commissioner White's participation in the final hearing and vote. When there is perceived bias by an administrative agency, "the best action is before the board itself, in the form of appropriate objections and/or motions for disqualifications." Scheub v. Van Kalker Family Ltd. P'ship , 991 N.E.2d 952, 959 (Ind. Ct. App. 2013). This procedure gives the board the opportunity to correct or prevent an error as a result of bias, and allows the objector the opportunity to preserve error in anticipation of judicial review. Id. Having failed to object to Commissioner White's participation or move for his disqualification at or prior to the final hearing, the Remonstrators have waived this issue on judicial review. See Ind. Code § 36-7-4-1610 (stating judicial review of an issue not raised before the board is allowed only in two specific circumstances, neither of which is present here).

[14] Waiver notwithstanding, we briefly note that even if bias exists, we presume that an administrative board or panel will act properly and without bias or prejudice, Jandura v. Town of Schererville , 937 N.E.2d 814, 819 (Ind. Ct. App. 2010), trans. denied , with or without recusal of the allegedly biased members, Adkins v. City of Tell City , 625 N.E.2d 1298, 1303 (Ind. Ct. App. 1993). We will not interfere with the administrative process in the absence of a demonstration of actual bias.

In re Change to Established Water Level of Lake of Woods in Marshall Cty. , 822 N.E.2d 1032, 1041 (Ind. Ct. App. 2005), trans. denied. Commissioner White's statement that he used to be on the Athenaeum board and suggesting, based on his experience, that Jacobs should consult an expert regarding potential noise issues with the project, does not demonstrate actual bias in favor of the project, and the Remonstrators' bald assertion that his statement shows "presumed bias" does not make it so.

[15] The Remonstrators claim the trial court should have granted their motion to compel to allow them to conduct discovery to supplement the record on the issue of Commissioner White's actual bias. However, although Indiana Code section 36-7-4-1612 allows supplementation of the record under certain circumstances, it is only allowed "if the additional evidence could not, by due diligence, have been discovered and raised in the board proceeding giving rise to a proceeding for judicial review." Ind. Code § 36-7-4-1612(a). As noted above, Commissioner White's statement was made in a public hearing with the Remonstrators' representative in attendance. The issue could have been raised with the Commission at any time prior to the final vote, but it was not. Therefore, the trial court did not err in denying the Remonstrators' motion to compel.

III. Certificate of Appropriateness

[16] The Remonstrators argue the Commission improperly granted the certificate of appropriateness for the Block 20 project for several reasons: multiple provisions of the Historic Preservation Statutes and Lockerbie Square Historic Plan are violated by the project; zoning rules are violated by the commercial components of the project; and the project is prohibited by the restrictive covenant.

A. Historic Preservation

[17] The Remonstrators contend the Commission decision to issue a certificate of appropriateness to the Block 20 project "violates numerous Historic Preservation Statutes, including the Commission's failure to duly consider the Historic Plan, which are objective historic development standards ...." Br. of Appellants at 24.

[18] Indiana Code section 36-7-11.1-8(c) provides that "all governmental agencies"-including the Commission-"shall be guided by and give due consideration to the [historic] plan in any official acts affecting the area." The consideration that is due from the Commission is described in Indiana Code section 36-7-11.1-9. When the Commission hears an application for a certificate of appropriateness, the Commission is to determine whether the proposal will "be appropriate to the preservation of the area and to the furtherance and development of historic preservation" by considering,

in addition to any other pertinent factors, the visual compatibility, general design, arrangement, color, texture, and materials in relation to the architectural or other design standards prescribed by the plan or any applicable zoning regulation, the design and character of the historic area, and the architectural factors of other structures in it.

Ind. Code § 36-7-11.1-9(c), (d). If the Commission determines the proposed construction will be appropriate, the Commission shall issue a certificate of appropriateness. Ind. Code § 36-7-11.1-10(a).

[19] The Remonstrators contend the Commission's decision to allow a mixed-use development does not further historic preservation in the Lockerbie Historic District, which they posit "contemplates residential development consistent with the complexion of the predominant single-family home ownership within the [Historic] District." Br. of Appellants at 27. The historic plan notes that the recommended zoning and land use maps included in the plan "were developed to act in concert to protect the unique character of Lockerbie Square." App. of Appellants, Vol. 12 at 47. The historic plan does contemplate that the "predominant land use" in the Historic Core remain residential, but the plan contemplates a variety of acceptable uses in the Secondary Area. App. of Appellants, Vol. 12 at 47-48 ("It is recommended that much of the [Secondary Area north, east, and south of the Historic Core] be developed with a mix of residential and compatible commercial uses."). The fact that the proposed project includes both residential and commercial uses does not undermine historic preservation in this area. The historic preservation statutes and the historic plan do not exist to prevent change, but to encourage and appropriately guide revitalization. See id. , Vol. 6 at 13-14 ("Since the majority of historic properties within the ... Historic Core have been rehabilitated, the emphasis has shifted to new development of existing vacant land in both the Historic Core and the Secondary Area.").

[20] The Remonstrators also contend that the project is incompatible with the historic plan, which states,

Because most of the Lockerbie Square Historic Core has been completed, the preservation and revitalization of Lockerbie Square's periphery should be encouraged. This redevelopment should seek to preserve and respect the existing historic fabric and strengthen the contextual relationship between the Historic Core and Secondary Area. Construction not in keeping with the visual scale or character of the district should be discouraged ....
[A]ll restoration, rehabilitation, and new construction projects must conform to the design guidelines set forth in this plan (see Design Standards Section).

App. of Appellants, Vol. 12 at 39 (emphasis added). The Remonstrators allege the historic plan thus contains mandatory provisions supplementing the general historic preservation statutes. However, the plan makes clear that the design standards contained therein are not mandatory:

The design standards are to be used as a guide by property owners and others interested in developing a project within the Lockerbie Square Area.... The contents of this chapter are guidelines and should not be read as absolute rules. Every project will have its own different set of goals, constraints, problems and impacts, all of which may suggest somewhat differing utilization of the standards.

Id. , Vol. 12 at 51. Thus, there can be no error in granting a certificate of appropriateness to a project that deviates from any of those guidelines, presuming the process of granting the certificate was otherwise observed. See App. of Appellants, Vol. 5 at 122 (Remonstrators' representative arguing to the Commission at the final hearing that "[t]here are multiple violations of the [historic plan] with this proposal"); 129-30 (Commission staff member noting that nothing in the historic plan is "necessarily [a] requirement, so that somebody would be in violation of if they didn't comply with that, but rather a set of guidelines to direct staff in making a recommendation on the proposed design, which is what we did"); 132 (Commission member noting the historic plan contains guidelines, not rules, and the "only kinds of violations that I know of is doing work without going through the approval process").

[21] With respect to the Commission's decision-making process, the trial court concluded:

The record demonstrates that, over the course of three (3) months and prior to issuing the Certificate of Appropriateness to Block 20, the [Commission] and its staff considered, among other things: (a) the factors included in Indiana Code § 36-7-11.1-9(d) ; (b) the size and scope of the project; (c) the acoustic effect of the project; (d) the effect of the project on traffic and congestion in the area; (e) the effect of the project on nearby alleyways; (f) letters from the public (including [the Remonstrators'] counsel); (g) the [Commission] staff reports; (h) testimony from Jacobs and his architects; (i) testimony from members of the public (including [the Remonstrators'] counsel); (j) statements from the [Commission] staff; and (k) statements from the [Commission's] members.

App. of Appellants, Vol. 2 at 22.

[22] The record supports the trial court's conclusion. Before issuing a certificate of appropriateness for the Block 20 project, the Commission staff met with Jacobs a dozen times and issued three reports to the Commission, the Commission itself held two public preliminary review hearings and a final public hearing, Jacobs made numerous changes to the project plans in response to concerns raised at each stage of the proceedings, and the Commission heard community members' concerns, both for and against the project. Commission staff believed the "design evolv[ed] for the better" during the process, id. , Vol. 5 at 129, and that the "scale of this structure is actually a perfect size for the scale in relationship to the immediate buildings around it," id. , Vol. 5 at 131. Ultimately, the Commission voted five to one to issue the certificate of appropriateness per the staff recommendation. One commissioner specifically noted, "I think it's very responsive architecturally." Id. , Vol. 5 at 134.

[23] With respect to new construction, the historic plan notes:

The purpose of these guidelines is to present concepts, alternatives, and approaches which will produce design solutions that recognize the characteristics and bring harmony between new and existing building in Lockerbie Square.... It should be noted that within an appropriate framework there can be many different design solutions which may be appropriate. While guidelines can create an acceptable framework they cannot insure any particular result and consequently people may hold a wide range of opinions about the resultant designs ....
New construction should reflect the design trends and concepts of the period in which it is created. New structures should be in harmony with the old and at the same time be distinguishable from the old so the evolution of Lockerbie Square can be interpreted properly.
* * *
Every site will possess a unique context. This will be comprised of the buildings immediately adjacent, the nearby area (often the surrounding block), a unique subarea within the district, and the district as a whole.

Id. , Vol. 13 at 27-28. Clearly, this is an instance where people hold a wide variety of opinions. That the Remonstrators' opinion about this project diverges from the Commission's does not make the Commission's decision unreasonable, however.

[24] Considering the applicable historic preservation statutes and the historic plan guidelines, and the process by which the Commission made its decision, we cannot say the Commission acted arbitrarily and capriciously or without regard for the law, abused its discretion, or issued a decision unsupported by the evidence. See Ind. Code § 36-7-4-1614(d). The Commission gave due consideration to the pertinent statutory factors and the guidelines in the historic plan when commenting on and requesting changes to the project plans and when ultimately determining the proposal is an appropriate addition to the area.

B. Zoning Laws

[25] The Remonstrators also claim the Commission's decision violates applicable zoning laws; specifically, they claim the property is supposed to be exclusively residential pursuant to the Comprehensive Plan for Indianapolis and Marion County. The trial court did not speak to this objection in its order, because the Remonstrators did not raise this as an issue before the Commission in their remonstrance letter or before the trial court in their petition for judicial review. It is therefore waived. See Ind. Code § 36-7-4-1610.

[26] Notwithstanding the Remonstrators' failure to raise this issue below, there does not appear to be a conflict with the zoning laws. The parcel is currently zoned CBD-2, which "accommodates a diverse mixture of uses including residential, retail, restaurants, entertainment, major public facilities, major convention facilities, sports venues, hotels and memorials." City of Indianapolis-Marion County Consolidated Zoning/Subdivision Ordinance, Sec. 742-106.C.1. The historic plan also recommends the subject real estate be zoned CBD-2. App. of Appellants, Vol. 12 at 45, 50 (with the exception of a quarter block not relevant here, "[t]he Secondary Area to the west of the HP-1 district is zoned CBD-2, which permits commercial support uses for CBD-1"). And to the extent the historic and comprehensive plans recommend residential use for the parcel, "[r]ecommendations in a comprehensive plan serve to guide subsequent decisionmakers rather than establish present and binding land-use controls." Fifty Six LLC v. Metro. Dev. Comm'n of Marion Cty. , 38 N.E.3d 726, 734 (Ind. Ct. App. 2015), trans. denied. The Remonstrators have not carried their burden to show the Commission acted in excess of statutory authority or otherwise not in accordance with law when it appears the project falls within the approved zoning for the subject real estate.

C. Restrictive Covenant

[27] As a condition of the Commission granting a certificate of appropriateness allowing the Athenaeum to demolish the existing structure on the subject real estate, the Athenaeum agreed to the following Restrictive Covenant:

1. An issuance of [certificate of appropriateness] ... shall allow the use of the Subject Real Estate as a parking lot for a period of three (3) years from the date of the issuance ("3 Year Period").
2. The Subject Real Estate shall not be used as a parking lot beyond the expiration of the 3 Year Period, unless the Athenaeum shall have applied for and shall have been granted another certificate of appropriateness before the expiration of the 3 Year Period.
3. During the 3 Year Period the Athenaeum shall use reasonable and good faith efforts to support alternative parking solutions for the area within two (3) blocks of [where] the Subject Real Estate is located.
4. In the event that reasonable alternative parking is established within two (2) blocks of the Subject Real Estate before the expiration of the 3 Year Period, then the Athenaeum shall diligently pursue using the Subject Real Estate for residential purposes pursuant to the Plan. The aforesaid diligent pursuit may include, but not be limited to, listing the Subject Real Estate for sale or long-term lease for residential development, contacting developers about residentially developing the Subject Real Estate or seeking proposals for residential development.
5. The provisions set forth in paragraph 2 of this covenant ... run with and burden the Subject Real Estate.
6. The obligations contained in this covenant including, but not limited to, those in paragraphs 3 and 4, shall be binding upon the Athenaeum's successors and assigns.

App. of Appellants, Vol. 4 at 13-14. The Remonstrators allege the Commission decision should be reversed because the Block 20 project violates this Restrictive Covenant. Specifically, the Remonstrators contend the Restrictive Covenant allowed use of the property for parking of any kind for only three years and thereafter allows only single-family residential use of the property.

[28] A restrictive covenant is an agreement between a grantor and a grantee in which the grantee agrees to refrain from using property in a particular manner. Johnson v. Dawson , 856 N.E.2d 769, 772 (Ind. Ct. App. 2006). One purpose of restrictive covenants is to maintain or enhance the value of land by controlling the nature and use of lands subject to a covenant's provisions. Id. Because restrictive covenants are a form of express contract, we apply the same rules of construction applicable to contracts. Id. Construction of the terms of a written contract is a question of law for the court and we review the trial court's conclusions de novo. Id. Restrictive covenants are strictly construed and all doubts are resolved against restrictions and in favor of the free use of property. Id. at 773. With respect to the Restrictive Covenant at issue, the trial court concluded:

[The Remonstrators'] contention that Block 20 does not comply with the Restrictive Covenant is ... unavailing, and there was substantial evidence on the record that Block 20 did not violate the Restrictive Covenant. The Restrictive Covenant addresses only the use of an existing surface parking lot on the property; it does not prohibit the use or construction of a parking garage included as part of a larger retail and residential project. Nor does the Restrictive Covenant require exclusive residential use on the property as suggested by [the Remonstrators]. As Block 20 will include sixty-seven (67) residential units in addition to the parking garage, it satisfies any requirement (to the extent such a requirement exists and runs with the land) to have a residential use on the property. It is instructive to this Court that the three parties responsible for drafting and issuing the Restrictive Covenant-the [Commission], the Lockerbie Square Peoples Club, and the Athenaeum-all support the project and do not view it as a violation of the Restrictive Covenant.

App. of Appellants, Vol. 2 at 22-23.

[29] For several reasons, we cannot agree with the Remonstrators' proposed construction of the Restrictive Covenant. First, the current use of the parcel is definitively in violation of the Restrictive Covenant, as the covenant restricted its use as a parking lot to the 3 Year Period which expired in 2004. Although the Restrictive Covenant states its terms run with the land and are binding on the Athenaeum's successors, it is somewhat unclear what the effect of the Restrictive Covenant is at this point. Nevertheless, the Restrictive Covenant does not foreclose use of the property for any parking purpose in perpetuity; rather, it restricted use of the property solely as a parking lot beyond the 3 Year Period. Although the Block 20 project incorporates parking-as it is adding residents to the area who will be in need of parking-it is not "a parking lot," which is the restricted use. Moreover, the Restrictive Covenant does not mandate that the property be used for solely residential purposes after the 3 Year Period. In fact, the Restrictive Covenant only references pursuing residential use "[i]n the event that reasonable alternative parking is established within two (2) blocks of the Subject Real Estate before the expiration of the 3 Year Period." Appellant's App., Vol. 4 at 13 (emphasis added). As no acceptable alternative parking was established pursuant to the Restrictive Covenant within the 3 Year Period, the obligation to pursue residential options was never triggered.

[30] It seems clear that the purpose of the Restrictive Covenant was to allow the Athenaeum to demolish a building that did not enhance the preservation or character of the historic district and put the property to temporary use while it worked to revitalize the property in a manner that would be a benefit to the district. The Commission's decision to grant the certificate of appropriateness to a mixed use project that includes a parking component did not violate the terms of the Restrictive Covenant.

Conclusion

[31] The Remonstrators have failed to show the Commission's decision to grant a certificate of appropriateness for the Block 20 project is invalid. The judgment of the trial court is therefore affirmed.

[32] Affirmed.

Crone, J., and Bradford, J., concur.

      The Remonstrators repeatedly assert that Jacobs called the building a "hotel" at some point, see Brief of Appellants at 12, and assert that he did so at a July 19, 2016, meeting of the People's Club, see Reply Brief of Appellants at 7-8. However, the July 19, 2016, meeting of the People's Club is not transcribed or otherwise memorialized in the record, and the only record evidence the Remonstrators cite in support is their own petition for judicial review, App. of Appellants, Vol. 2 at 33, their own letter to the Commission in advance of the final hearing on the certificate of appropriateness, id. , Vol. 2 at 40, and their own statement to the Commission at the final hearing, id. Vol. 5 at 125. The Remonstrators contend that Jacobs' failure to rebut the Remonstrators' statement is a tacit admission. However, Jacobs and others involved in seeking the certificate of appropriateness repeatedly referred to the residential component of the building as "apartments" before the Commission.

      Given the context of the statement, what is transcribed as "acquisition" should probably be "acoustician." During the second review hearing, the Block 20 architect stated they "do have an acoustician coming to town next week who's going to do a full report for us ...." Id. at 111-12. And during the final hearing, the architect referenced the acoustician's report. Id. at 140-41.

      The Remonstrators note that Indiana Code section 36-7-4-918.4 states that a variance may be approved by the board of zoning appeals "only upon a determination in writing" and asserts the Commission should also have been required to issue written findings supporting its decision to grant a certificate of appropriateness for the Block 20 project. Because Indiana Code chapter 36-7-11.1 is not silent about written findings, but instead requires written findings only if the Commission determines that a certificate of appropriateness should not be issued, Ind. Code § 36-7-11.1-10(b), we cannot agree with the Remonstrators' position.
      In addition, the Remonstrators contend that "because of the unique and different role of historic preservation," the standard of review of a Commission decision should be "expand[ed]" beyond that described by Indiana Code section 36-7-4-1614 in order to "reconcile[ ]" other provisions of Indiana Code chapter 36-7-11.1. Br. of Appellants at 23. The historic preservation statutes as a whole are to be referenced in evaluating whether the Commission decision is appropriate; however, because Indiana Code chapter 36-7-11.1 specifically states the standard of review to be used in reviewing the issuing of a certificate of appropriateness, we again cannot agree with the Remonstrators that the standard is to be modified or expanded in this case. As the Remonstrators themselves acknowledge, when relevant statutory language is clear and unambiguous, the statute will be interpreted in its plain, ordinary, and usual sense. See Br. of Appellants at 24 (citing Young v. Hood's Gardens, Inc. , 24 N.E.3d 421, 424-25 (Ind. 2015) ). Section 36-7-11.1-10(c) clearly and unambiguously states the appropriate standard of review for these decisions.

      The Remonstrators also cite to Indiana Code section 36-7-11-17 as "reinforc[ing] Chapter 11.1-9(d) in providing more restrictions ...." Br. of Appellants at 26. Section 36-7-11-17 applies to new buildings and structures "within the primary area of the historic district." The Block 20 project is not within the primary area, or "Historic Core" of the historic district, but rather in the Secondary Area. See Ind. Code § 36-7-11-6(a) (requiring the Commission to submit a map to the legislative body describing the boundaries of a historic district or districts and allowing the map to divide a district into primary and secondary areas); App. of Appellants, Vol. 6 at 9 (Lockerbie Square Historic District Map 2 showing boundaries of the Historic Core and the Secondary Area as of 1987).

      The Remonstrators contest the trial court's finding that they did not have standing to raise this issue because the Restrictive Covenant can only be enforced by the Commission and the People's Club. See App. of Appellants, Vol. 2 at 23. Because of our resolution of this issue, we need not decide whether the Remonstrators have standing.

      The applicable zoning ordinance contains separate definitions of "parking lot" ("A hard-surfaced area ... intended for the temporary placement of vehicles ....") and "parking garage" ("A structure or part of a structure used primarily for the housing, parking, or temporary short-term placement of motor vehicles ...."). Ord. Sec. 740-202.P.