People v. Petty, No. 2-98-1291

2nd District, 10 February 2000

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Richard Petty, was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West1998)) and failing to signal (625 ILCS 5/11--804(a) (West 1998)). The State appeals the trial court's order grantingdefendant's motion to quash the arrest and suppress evidence. Before granting the motion, the court barred the arrestingofficer from testifying because the police inadvertently erased the requested audiotape recording of defendant's arrest. Onappeal, the State argues that the trial court abused its discretion because it could have imposed a less oppressive discoverysanction. We reverse the trial court's order and remand the cause.

On February 8, 1998, an anonymous source reported that someone under the influence of alcohol was driving a vehiclematching the description of defendant's car. The Kane County sheriff's office informed Elburn police officer Michael Schooof the tip. The record suggests that Officer Schoo stopped defendant after he observed defendant fail to signal beforeturning.

The State concedes that the anonymous tip and subsequent dispatch were recorded. Although defendant failed to subpoenathe recordings, he moved for discovery of the audiotapes under Supreme Court Rule 237 (134 Ill. 2d R. 237) and the Codeof Criminal Procedure of 1963 (725 ILCS 5/114--3 (West 1998)) and petitioned to rescind the statutory summarysuspension of his driving privileges. The State responded that the tapes had been inadvertently erased after defendantmoved for discovery. The trial court granted defendant's subsequent motion to quash the arrest and suppress all of OfficerSchoo's testimony from further proceedings.

On appeal, the State argues that the trial court abused its discretion when it sanctioned the State by barring the arrestingofficer from testifying. The State contends that we should excuse the inadvertent destruction of the audiotapes because (1)the trial court based its decision on a nonprecedential order, (2) the court could have limited the officer's testimony tomatters not contained in the audiotapes, and (3) defendant failed to subpoena the tapes pursuant to the rules of misdemeanordiscovery. Because we agree with the State's first two arguments, we do not address the third.

Both the parties and the trial court considered whether People v. Karl, No. 1--96--3485 (1998) (unpublished order underSupreme Court Rule 23) applies to this case. The trial court found that Karl required the suppression of the arrestingofficer's testimony. However, it was improper for the trial court to rely on Karl and to permit the parties to cite that case asauthority. See People v. Schambow, 305 Ill. App. 3d 763, 766 (1999). Supreme Court Rule 23(e) provides that anunpublished order of an appellate court "is not precedential and may not be cited by any party." 166 Ill. 2d R. 23(e). Rule 23orders have no precedential value and may be invoked only to support contentions such as double jeopardy, res judicata,collateral estoppel, and law of the case. Schambow, 305 Ill. App. 3d at 766. Therefore, we do not consider Karl and insteadengage in an independent legal analysis of the issues. See Schambow, 305 Ill. App. 3d at 766.

Defendant responds that, even if Karl does not govern this case, the trial court did not abuse its discretion when it barred theofficer from testifying. However, defendant cites no case with similar facts that supports his contention. The goals ofdiscovery are to eliminate surprise and unfairness and to afford an opportunity to investigate. People v. Rubino, 305 Ill.App. 3d 85, 87 (1999). Discovery sanctions are designed to further these goals and to compel compliance rather than topunish. Rubino, 305 Ill. App. 3d at 87. However, harsh sanctions, such as the exclusion of evidence, may be warrantedwhere the defendant is denied a full opportunity to prepare his defense and make tactical decisions with the aid of theinformation that was withheld. People v. Leon, 306 Ill. App. 3d 707, 713-14 (1999).

In Schambow, the defendant was charged with DUI, and the Secretary of State summarily suspended his driving privileges.The trial court rescinded the suspension as a discovery sanction after the State inadvertently destroyed a subpoenaedaudiotape of radio communications between the arresting officer and the police headquarters. This court reversed therescission, concluding that a less oppressive discovery sanction was available that would have permitted a hearing on themerits without prejudicing the defendant. Schambow, 305 Ill. App. 3d at 769.

We conclude that the court abused its discretion when it completely barred Officer Schoo from testifying at the hearing ondefendant's motion to quash the arrest and suppress evidence. The Appellate Court, Third District, has held that theappropriate sanction for the State's failure to produce requested audiotapes is to preclude the arresting officer fromtestifying about matters that may have been included on the tapes. People v. Koutsakis, 255 Ill. App. 3d 306, 313-14 (1993).In this case, the trial court could have precluded the officer from testifying about his conversations with the dispatcher andlimited the testimony to the officer's observations of defendant. Such a sanction would have been more proportional to themagnitude of the discovery violation. See Schambow, 305 Ill. App. 3d at 769.

For these reasons, the order of the circuit court of Kane County is reversed, and the cause is remanded.

Reversed and remanded.

THOMAS and GALASSO, JJ., concur.