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People v. Toft
State: Illinois
Court: 3rd District Appellate
Docket No: 3-04-0003 Rel
Case Date: 02/16/2005

No. 3--04--0003 


IN THE
 
APPELLATE COURT OF ILLINOIS
  
THIRD DISTRICT
  
A.D., 2005


THE PEOPLE OF THE STATE OF
ILLINOIS,

          Plaintiff-Appellee,

          v.

STUART TOFT,

          Defendant-Appellant.

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Appeal from the Circuit Court
of the 10th Judicial Circuit
Peoria County, Illinois


No. 02--TR--29969

Honorable
Rebecca Steenrod,
Judge, Presiding.


PRESIDING JUSTICE SLATER delivered the opinion of the court:




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

Facts

The record indicates that the defendant was issued a trafficcitation for disobeying a red light in Peoria County, Illinois,on September 15, 2002. Defendant requested a jury trial and wasassigned a trial date of December 10, 2002. Defendant appearedon that date and the case was continued to April 1, 2003. Defendant also states in his brief that the trial court allowed,over the State's objection, defendant's motion to engage inlimited discovery. There is nothing in the record concerningthis ruling.

Defendant next appeared in court on April 1, 2003, when,according to his brief, he had to wait two and one-half hours forhis case to be called while the judge left the courtroom twice,creating a "circus atmosphere." According to defendant, his casewas called by a representative of the State while the judge wasabsent. The defendant then tendered his discovery documents tothe prosecutor, who refused to accept them. None of defendant'sclaims are supported by anything contained in the record. Defendant's case was continued to July 1, 2003.

The record does show that the circuit clerk received twodocuments from defendant on June 27, 2003: a "request toproduce" seeking any video or audio tape of the traffic stop andother documents, including budget projections by the City ofPeoria for 2002-03; and a set of interrogatories primarilyseeking information about video recording devices in policepatrol vehicles. These documents were accompanied by defendant'swritten request to reset the July 1 status hearing to a laterdate.

According to the defendant, when he appeared in court onJuly 1, 2003, he again had to wait two and one-half hours in a"circus atmosphere" before his case was called by the prosecutorwhile the judge was absent. The prosecutor acknowledgedreceiving defendant's discovery documents but indicated that theState was not obligated to respond. The case was continued toSeptember 2, 2003. There is no record of these events, otherthan a docket entry indicating that defendant's motion tocontinue was granted.

The next item contained in the record is a document labeled"subpoena" that is file stamped August 18, 2003. The defendantstates in his brief that he mailed this document to the Peoriapolice department. The information requested was the same asthat sought in defendant's request to produce.

Defendant appeared in court on September 2, 2003, at whichtime he contends that the judge and the assistant states attorneyengaged in a lengthy ex parte conversation about the subpoena. There is no record of these proceedings other than a docket entryand an order entered by the court which stated in part:

"Paragraphs 3, 4, 5, 6, 7 of defendant'ssubpoena are stricken.

As to paragraphs 1 & 2, the Peoplereport that there are no video or audiorecordings in existence that the People areaware of."

The case was reset for trial at 9:15 a.m. on November 18,2003. According to the defendant, trial did not convene until1:30 p.m. Prior to trial, defendant states, the court did notallow the defendant or the State to participate in voir dire. During the trial, defendant asserts, the arresting officertestified that he had videotaped the incident. There is noreport of proceedings or other record of these events. Therecord does show that the jury found the defendant guilty andthat he was sentenced to pay a fine of $150 plus court costs. This appeal followed.

Analysis

Defendant raises numerous arguments in his brief concerningvarious aspects of the proceedings in the circuit court which hecontends warrant reversal of his conviction. For example,defendant maintains that the trial judge violated the Code ofJudicial Conduct, specifically Supreme Court Rule 62 (155 Ill. 2dR. 62 (judge should avoid impropriety and appearance ofimpropriety)) and 63 (155 Ill. 2d R. 63 (judge should performduties impartially and diligently)) by, inter alia, leaving thecourtroom for more than an hour on April 1, July 1 and September2 and by allowing the State to call cases for hearing. Ofcourse, the defendant's disagreement with the manner in which thetrial judge runs her courtroom is not relevant to this appeal,unless it unfairly affected defendant's trial. Moresignificantly, as should be evident from our recitation of thefacts, many of defendant's complaints are based on events whichtook place dehors the record. It is an elemental rule ofappellate procedure that a reviewing court is restricted toexamining the record. People v. Edwards, 74 Ill. 2d 1, 383N.E.2d 944 (1978).

With regard to those issues which could have potentiallyimpacted defendant's trial, such as the trial court's purportedrefusal to allow defendant to participate in voir dire, no reportof proceedings is contained in the record. While it appears thatno transcript of the proceedings was available, the defendant didnot prepare a bystander's report (see 166 Ill. 2d R. 323(c)) nordoes the record contain an agreed statement of facts (see 166Ill. 2d R. 323(d)). Where the record is incomplete, theconsequences are clear:

"This court has long held that in orderto support a claim of error on appeal theappellant has the burden to present asufficiently complete record. [Citation.] In fact, '[f]rom the very nature of an appealit is evident that the court of review musthave before it the record to review in orderto determine whether there was the errorclaimed by the appellant.' [Citation.] Where the issue on appeal relates to theconduct of a hearing or proceeding, thisissue is not subject to review absent areport or record of the proceeding. Instead,absent a record, 'it [is] presumed that theorder entered by the trial court [is] inconformity with the law and had a sufficientfactual basis.'" Webster v. Hartman, 195Ill. 2d 426, 432, 749 N.E.2d 958, 962 (2001),quoting Foutch v. O'Bryant, 99 Ill. 2d 389,391-92, 459 N.E.2d 958, 959, (1984).

Although the inadequacy of the record in this case preventsthis court from considering virtually all of defendant'sconcerns, for the sake of completeness, we will briefly addresseach of the "issues presented for review" listed in defendant'sbrief.

Defendant contends that his conviction should be reversedand the charge should be dismissed with prejudice because theState was not ready for trial at the date and time the trial wasscheduled. The docket entries contained in the record reflectvarious continuances, some based on defendant's motions, otherswithout attribution. We discern no speedy trial violation basedon the limited information available. The record also does notsupport defendant's complaint that his trial began at 1:30 p.m.rather than 9:15 a.m. In any event, such a delay would notjustify reversal or dismissal absent a showing of prejudice tothe defendant.

Defendant also asserts that he is entitled to a new trialdue to the judge's alleged violation of Supreme Court Rules 62and 63 for "abandoning" her courtroom, for allowing theprosecutor to call cases, and for engaging in an ex parteconversation with the prosecutor. As none of these purportedevents are supported by the record, they are not subject toreview by this court.

Defendant maintains that the trial judge violated SupremeCourt Rule 234 and 431, concerning voir dire, when defendant wasnot allowed to question the prospective jurors. The primaryresponsibility for conducting voir dire lies with the trialcourt, and the manner and scope of questioning is within thecourt's discretion. The standard used to evaluate thatdiscretion is whether the questions and procedures used duringvoir dire created a reasonable assurance that any prejudice orbias would be discovered. People v. Gregg, 315 Ill. App. 3d 59,732 N.E.2d 1152 (2000). As the record contains no informationregarding the questions posed during voir dire, no review ispossible.

Defendant further contends that the State violated SupremeCourt Rule 415 by refusing to cooperate with his discoveryrequests. Supreme Court Rule 411 limits the application of thediscovery rules to felony offenses (see People v. Schmidt, 56Ill. 2d 572, 309 N.E.2d 557 (1974); see also People v. Williams,87 Ill. 2d 161, 429 N.E.2d 487 (1981)), and the trial court lacksthe discretion to apply those rules to less serious offenses (seeSchmidt, 56 Ill. 2d 572, 309 N.E.2d 557). Defendants who arecharged with misdemeanor offenses are entitled to disclosure ofcertain information, such as a list of witnesses (725 ILCS 5/114--9 (West 2002)), production of a defendant's confession (725 ILCS5/114--10 (West 2002)), and any evidence which would negatedefendant's guilt (see Brady v. Maryland, 373 U.S. 83, 10 L. Ed.2d 215, 83 S. Ct. 1194 (1963)). See Schmidt, 56 Ill. 2d 572, 309N.E.2d 557. To the extent that even this limited disclosure isapplicable to one charged, as the defendant was, with a pettyoffense, the record does not establish any violation. Althoughthe defendant maintains that the arresting officer admitted attrial that he videotaped the incident, there is no transcript oracceptable substitute to verify defendant's claim. Moreover,even if true, such testimony does not establish that the tape wasexculpatory or that the failure to produce it was in bad faith. See Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S.Ct. 333 (1988) (failure to preserve evidence does not deny dueprocess absent showing of bad faith); California v. Trombetta,467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984) (onlyevidence with apparent exculpatory value must be preserved).

Finally, we note that defendant attached an affidavit to hisreply brief in which he averred that the factual informationcontained in his brief is true and correct. However, it is wellsettled that an affidavit cannot be used to supplement the recordin lieu of a transcript or bystander's report. See Landau &Associates, P.C. v. Kennedy, 262 Ill. App. 3d 89, 634 N.E.2d 373(1994); Smith v. Central Illinois Public Service Co., 176 Ill.App. 3d 482, 531 N.E.2d 51 (1988); Lofendo v. Ozog, 118 Ill. App.3d 237, 454 N.E.2d 806 (1983).

For the reasons stated above, the judgment of the circuitcourt is affirmed.

Affirmed.

BARRY, J., concurs.



JUSTICE McDADE, specially concurring:

I am in complete agreement with the decision in this appeal. I write separately only to observe that it must surely befrustrating for a pro se appellant who already feels aggrieved tohave his appeal "resolved" on the basis of a fatally insufficientrecord. Most appeals are filed because the parties want a reviewof the merits of their claims or defenses. We share theirdissatisfaction when we cannot reach the merits because ofprocedural defects or inadequacies in the record. Hopefully, inaddition to highlighting one of the many pitfalls that can tripup a pro se litigant, a situation such as this also will serve asa reminder to all participants in legal proceedings of theimportance of creating a complete record in the trial court andfiling a sufficient record in the appellate court.

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