July 20, 2001

No. 2--00--0490

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Harold Crowder, was charged with unlawfulpossession of weapons by a felon (720 ILCS 5/24--1.1(a) (West1998)) and unlawful use of weapons (720 ILCS 5/24--1(a)(4) (West1998)). After defendant filed a discovery request for the itemthat was the basis for the charges, he learned that it had beendestroyed. Defendant filed a motion to dismiss the indictment,which the trial court granted. The State appeals, contending thatdismissing the indictment was too harsh a sanction. We affirm.

A criminal complaint charged defendant with two weaponsoffenses based on his having possessed a .357 Taurus revolver. Defendant filed a discovery request seeking, inter alia, "anopportunity to examine and photocopy, any *** tangible objectswhich the prosecution intends to use in the hearing or trial whichwere obtained from or belong to the accused." The State's responsestated that it might seek to introduce "said weapon." Defendantlater received in supplemental discovery a form from the Aurorapolice department indicating that the gun had been destroyed.

Defendant moved to dismiss the indictment and the trial courtgranted the motion. After the court denied its motion toreconsider, the State filed a timely notice of appeal.

In People v. Newberry, 166 Ill. 2d 310 (1995), the supremecourt held that the trial court properly dismissed drug possessioncharges where the substance the police seized from defendant wasinadvertently destroyed after defendant had filed a discoveryrequest for it. Newberry reiterated that a trial court possessesthe inherent authority to dismiss an indictment to avoid a dueprocess violation. Newberry, 166 Ill. 2d at 313-14. The courtagreed with the lower courts that the destruction of the substanceafter defendant had specifically requested to inspect it violateddue process even though the State did not act in bad faith. Newberry, 166 Ill. 2d at 315. Noting that the evidence defendantsought was "essential to and determinative of the outcome of thecase," the court held that defendant had no "realistic hope ofexonerating himself absent the opportunity to have it examined byhis own experts." Newberry, 166 Ill. 2d at 315.

This court followed Newberry in People v. Coleman, 307 Ill.App. 3d 930 (1999). There, too, defendant was charged with acontrolled substance offense. However, the substance wasinadvertently lost or destroyed, apparently after defendant hadfiled his discovery request. We held that the trial court erred indenying defendant's motion to dismiss the indictment. Coleman, 307Ill. App. 3d at 934.

Despite the clear authority of Newberry and Coleman, the Stateraises a number of arguments that the court erred in dismissing theindictment here. First, the State contends that the trial court'sruling should be reversed because it was based in part on a mistakeof law. In granting defendant's motion to dismiss, the courtstated that the State would have to prove that the gun was inworking condition. The State points out that a defendant may beconvicted of weapons possession offenses even if the firearm isinoperable. See People v. Hester, 271 Ill. App. 3d 954, 957(1995); People v. White, 253 Ill. App. 3d 1097, 1098 (1993). However, we may affirm the trial court's judgment on any basis thatappears in the record. Grisanzio v. Bilka, 158 Ill. App. 3d 821, 828-29 (1987). Even if the State did not have to prove the firearmwas operable, it still had to prove that it was a firearm. Asdefendant points out, for all we know, the "gun" seized fromdefendant could have been a toy, a nonfunctioning replica, or a"piece of wood or soap." Without being able to inspect the weaponand examine it and its outward appearance, defendant would not beable to refute in any meaningful way the State's contention that itwas a firearm.

In a related argument, the State contends that a gun is notlike the controlled substances at issue in Newberry and Coleman. It contends that while a white powder may be cocaine, baking soda,or some other innocent substance, a gun "is what it is and appearsto be." As noted above, an object that looks like a gun mayactually be a toy or a realistic replica. It makes no more senseto say that everything that looks like a gun is a gun than to saythat everything that looks like cocaine is cocaine. We reject theargument that Newberry is distinguishable for this reason.

The State's principal argument is that the "drastic" sanctionof dismissing the indictment was simply too harsh. However, whilethe State repeatedly argues that the dismissal of the indictmentwas not warranted, it does not suggest what other sanction wouldhave been appropriate. It cites People v. Forsythe, 84 Ill. App.3d 643 (1980), where the court held that dismissing the indictmentwas unwarranted where the prosecutor inadvertently failed todisclose the existence of an informant. The court noted that thetrial court should have considered lesser sanctions such as acontinuance so that defense counsel could interview the informant. Forsythe, 84 Ill. App. 3d at 646.

The State does not explain how a continuance would helpdefendant here. No matter how long the case is continued, the gunwill still be destroyed. No amount of time will allow it to be putback together so that defendant can examine it.

The State seems to suggest that no sanction at all iswarranted because it has already been prejudiced by not having thegun to use as evidence. This argument misses the point. The issueis not the strength of the State's case or its ability to proceedto trial without the evidence. The question is the defendant'sability to prepare for trial without being able to examine theevidence against him. Were the case to proceed to trial, we haveno doubt that the State would be able to call police officers whowould testify that the gun they seized from defendant was in factan operable firearm. By contrast, defendant will have no way torefute this testimony, except perhaps by his own bare assertionthat it was not.

This case is essentially indistinguishable from Newberry andColeman. Accordingly, the trial court did not err in dismissingthe indictment.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

BYRNE and GROMETER, JJ., concur.