{ "id": 3228739, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID SHUKOVSKY, Appellant; THE PEOPLE OF THE STATE OF ILLINOIS, v. DAVID SHUKOVSKY (Matthew Chancey, Appellant)", "name_abbreviation": "People v. Shukovsky", "decision_date": "1988-12-21", "docket_number": "No. 65051; No. 65168", "first_page": "210", "last_page": "231", "citations": [ { "type": "official", "cite": "128 Ill. 2d 210" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "54 Ill. 2d 372", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934127 ], "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0372-01" ] }, { "cite": "61 Ill. 2d 593", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2966821 ], "year": 1973, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0593-01" ] }, { "cite": "82 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474756 ], "pin_cites": [ { "page": "264-65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0250-01" ] }, { "cite": "82 Ill. 2d 234", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5475193 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0234-01" ] }, { "cite": "71 Ill. App. 3d 542", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582109 ], "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0542-01" ] }, { "cite": "102 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3075234 ], "year": 1979, "pin_cites": [ { "page": "1053" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/1049-01" ] }, { "cite": "37 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864932 ], "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0470-01" ] }, { "cite": "106 Ill. 2d 33", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138692 ], "year": 1967, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0033-01" ] }, { "cite": "105 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142403 ], "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0537-01" ] }, { "cite": "384 Ill. 388", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2490631 ], "opinion_index": 0, "case_paths": [ "/ill/384/0388-01" ] }, { "cite": "2 Ill. 2d 258", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12126232 ], "year": 1943, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0258-01" ] }, { "cite": "48 Ill. 2d 559", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906202 ], "weight": 2, "pin_cites": [ { "page": "564" }, { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0559-01" ] }, { "cite": "56 Ill. 2d 572", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404114 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0572-01" ] }, { "cite": "77 Ill. 2d 259", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490830 ], "weight": 4, "pin_cites": [ { "page": "265" }, { "page": "268" }, { "page": "268" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0259-01" ] }, { "cite": "388 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167274 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "23-24" }, { "page": "1025" }, { "page": "1925" } ], "opinion_index": 0, "case_paths": [ "/us/388/0014-01" ] }, { "cite": "418 U.S. 683", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174416 ], "weight": 9, "pin_cites": [ { "page": "699-700" }, { "page": "1059" }, { "page": "3103" }, { "page": "701" }, { "page": "1060" }, { "page": "3104" } ], "opinion_index": 0, "case_paths": [ "/us/418/0683-01" ] }, { "cite": "107 Ill. 2d 25", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3134808 ], "year": 1981, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/107/0025-01" ] }, { "cite": "119 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3192395 ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0465-01" ] }, { "cite": "10 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2723856 ], "opinion_index": 0, "case_paths": [ "/ill-2d/10/0533-01" ] }, { "cite": "65 Ill. 2d 206", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5436473 ], "weight": 2, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0206-01" ] }, { "cite": "95 L. Ed. 2d 740", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1148238, 6222790 ], "weight": 2, "pin_cites": [ { "page": "749-50" } ], "opinion_index": 0, "case_paths": [ "/us/341/0050-01", "/us/481/0787-01" ] }, { "cite": "481 U.S. 787", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6222790 ], "weight": 4, "pin_cites": [ { "page": "793" }, { "page": "2130" } ], "opinion_index": 0, "case_paths": [ "/us/481/0787-01" ] }, { "cite": "21 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2733016 ], "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0407-01" ] }, { "cite": "87 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031543 ], "weight": 3, "year": 1920, "pin_cites": [ { "page": "172" }, { "page": "174" }, { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0167-01" ] }, { "cite": "35 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5380279 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0351-01" ] }, { "cite": "37 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864902 ], "year": 1966, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0180-01" ] }, { "cite": "151 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540994 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0966-01" ] } ], "analysis": { "cardinality": 1029, "char_count": 29695, "ocr_confidence": 0.765, "pagerank": { "raw": 4.601486090202026e-07, "percentile": 0.9259414351956426 }, "sha256": "683812841c3abfd7ece81b6b01630482d867039ff99a606b53329e268c38cb43", "simhash": "1:e88fa520af430cf5", "word_count": 4941 }, "last_updated": "2023-07-14T19:54:46.843720+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JUSTICE STA.MOS took no part in the consideration or decision of this case.", "JUSTICE MILLER joins in this partial concurrence and partial dissent." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID SHUKOVSKY, Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, v. DAVID SHUKOVSKY (Matthew Chancey, Appellant)." ], "opinions": [ { "text": "JUSTICE WARD\ndelivered the opinion of the court:\nOn June 5, 1985, the defendant, David Shukovsky, was charged by information in the circuit court of Lake County with battery (111. Rev. Stat. 1985, ch. 38, par. 12 \u2014 3(aX2)). Prior to trial, he had a subpoena duces tecum served on Laura Notson, a social worker with the Lake County State\u2019s Attorney\u2019s office, directing her to produce all materials relating to certain conversations she had with the complainant, the defendant\u2019s former wife, Andrea Shukovsky, or with members of the Lake County State\u2019s Attorney\u2019s office or any police agency. The circuit court ordered Assistant State\u2019s Attorney Matthew Chancey, Notson\u2019s supervisor, to comply with the subpoena and, upon his refusal, found him in contempt of court. While an appeal from that judgment was pending, the circuit court granted the defendant\u2019s motion for discharge on the ground that his right to a speedy trial under section 103 \u2014 5(b) of the Code of Crim-' inal Procedure of 1963 (111. Rev. Stat. 1985, ch. 38, par. 103 \u2014 5(b)) had been violated. The State appealed, and the appellate court, after consolidating the appeals, affirmed the contempt judgment but reversed the judgment discharging the defendant and remanded for further proceedings. (151 111. App. 3d 966.) We allowed Chancey\u2019s and the defendant\u2019s petitions for leave to appeal under our Rule 315(a). 107 111. 2d R. 315(a).\nThe subpoena duces tecum directed Laura Notson to produce:\n\u201cAll notes, memorands [sic] and file materials of your conversations with Andrea Shukovsky relative to the above-captioned matter, as well as any notes, memoranda or file materials taken in connection with discussions with any member of the Lake County State\u2019s Attorney\u2019s Office or any police agency involving the above-captioned matter and Andrea Shukovsky\u2019s complaints against David Shukovsky relative thereto.\u201d\nAssistant State\u2019s Attorney Matthew Chancey moved to quash the subpoena on the grounds that it was over-broad, that the material was not discoverable or was not subject to the subpoena because of the work-product privilege or that the defendant could not obtain a subpoena duces tecum without first attempting to obtain the materials through discovery. Following a hearing, the court denied the motion and ordered that the materials be produced for the court by July 3 for an in camera inspection.\nOn that date, a hearing was held on the State\u2019s motion to reconsider the denial of its motion to quash. Chancey stated that he was Notson\u2019s supervisor and that he had the materials in his possession. He also said that because the court indicated that it would permit the defendant access to the materials called for by the subpoena if the court found that though not discoverable, they were admissible, he would not produce the materials. The court then held Chancey in contempt and fined him $10. On August 2, 1985, Chancey filed a notice of appeal, and the State\u2019s Attorneys Appellate Prosecutor\u2019s office filed a brief on his behalf.\nOn July 8, 1985, the defendant moved for a trial continuance on the ground that without the materials requested in the subpoena he would not be able to present an effective defense. The defendant also moved for the appointment of a special prosecutor in the contempt proceeding on the ground that the contempt judgment had been entered against an assistant State\u2019s Attorney. The court denied the defendant\u2019s motion for a special prosecutor but continued the cause to August 20. Although the State announced its readiness for trial, the court charged the delay to the State for purposes of the speedy-trial statute because of Chancey\u2019s failure to turn over the subpoenaed materials. Thereafter, the cause was continued several times and on each occasion the court stated it would charge the delay to the State because of Chancey\u2019s refusal to turn over the subpoenaed materials.\nOn December 18, 1985, the defendant moved for discharge under the speedy-trial guarantees in section 103 \u2014 5(b) of the Code of Criminal Procedure (111. Rev. Stat. 1985, ch. 38, par. 103 \u2014 5(b)). That section provides:\n\u201cEvery person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***.\u201d (111. Rev. Stat. 1985, ch. 38, par. 103 \u2014 5(b).)\nThe defendant alleged that more than 160 days had passed since he filed his demand for a speedy trial on June 21 and that the delay in bringing the cause to trial was attributable to the State. The court granted the motion, and the State appealed.\nThe appellate court consolidated the appeal with the appeal from the contempt judgment and, upon the defendant\u2019s motion, designated the People of the State of Illinois as appellee in the contempt proceedings. The court appointed the Attorney General to represent the People, and that officer filed a brief seeking affirmance of the circuit court\u2019s order of contempt. The State\u2019s Attorneys Appellate Prosecutor\u2019s office, on behalf of Assistant State\u2019s Attorney Chancey, moved to strike the Attorney General\u2019s brief and to vacate the appellate court\u2019s order designating the People of the State of Illinois as appellee. The motion stated that, as Chancey was convicted of contempt because of his good faith conduct on behalf of \u201cthe People,\u201d a conflict of interest had been created by the court\u2019s designation of \u201cthe People\u201d as appellee.\nAs stated, the appellate court denied the State\u2019s Attorneys Appellate Prosecutor\u2019s office\u2019s motion, affirmed the contempt judgment, but reversed the trial court\u2019s order discharging the defendant on speedy-trial grounds and remanded for further proceedings. 151 Ill. App. 3d 966.\nIn appeal No. 65168, Assistant State\u2019s Attorney Chancey begins his challenge to his contempt conviction with the contention that the appellate court erred in designating \u201cthe People\u201d as appellee and in appointing the Attorney General to sustain the contempt judgment on appeal. Chancey says that he subjected himself to the contempt conviction in good faith on behalf of \u201cthe People\u201d in order to test the validity of the circuit court\u2019s pretrial order directing him to comply with the defendant\u2019s subpoena. He says that when an attorney is held in contempt for taking a position on behalf of a client, an appeal from that judgment is in reality an appeal by the client. Chancey argues that it was therefore improper for the appellate court to designate \u201cthe People\u201d as appellee and to appoint the Attorney General, particularly considering that the Attorney General has taken an opposing position to his position on the validity of the subpoena. The appellate court\u2019s appointment of the Attorney General, he says, rendered his counsel, the State\u2019s Attorneys Appellate Prosecutor\u2019s office, \u201cpowerless\u201d to defend him on appeal. This is because, as the Appellate Prosecutor\u2019s office is authorized to represent only \u201cthe People,\u201d it cannot represent a State\u2019s Attorney in his or her individual capacity. (See 111. Rev. Stat. 1985, ch. 14, par. 204.01.) Parenthetically, Chancey does not state who he considers should have been designated as the appellee on this appeal.\nIt of course has been long recognized that exposing one\u2019s self to contempt proceedings is an appropriate method of testing the validity of a court order. (See People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 189; Monier v. Chamberlain (1966), 35 Ill. 2d 351.) When an attorney is held in contempt, it does not follow that an appeal from the contempt judgment is the appeal of the party for whose benefit the attorney acted in contempt of the order of court.\nContempt proceedings are \u201coriginal special proceeding^], collateral to and independent of the case in which the contempt arises.\u201d (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 172; Hill v. Jeffery Co. (1920), 292\nIll. 490, 493.) There are civil and criminal proceedings. They have been simply defined by this court:\n\u201cProceedings in the nature of criminal contempt have been defined as those directed to preservation of the dignity and authority of the court, while *** civil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties. [Citations].\u201d People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 409.\nThe circuit court\u2019s order imposing a fine on Chancey and the circumstances, including the understanding that an appeal would be taken to test the validity of the court\u2019s position, show that the order was to be criminal in nature and was to punish for the conduct of refusal. The purpose of criminal contempt proceedings, as stated, is to preserve \u201cthe dignity and authority of the court,\u201d that is, to maintain respect for the judicial system. \u201cThe need to vindicate a court\u2019s authority is *** satisfied by ensuring that an alleged contemnor will have to account for his or her behavior in a legal proceeding, regardless of whether the party is ultimately convicted or acquitted.\u201d Young v. United States ex rel. Vuitton et Fils S.A. (1987), 481 U.S. 787, 796 n.8, 95 L. Ed. 2d 740, 752 n.8, 107 S. Ct. 2124, 2132 n.8.\nWhen an attorney subjects himself or herself to contempt proceedings in order to test the validity of a court order, it is the attorney who is the alleged contemnor and is the one who must account for the conduct; it is not the party for whom the attorney acts. Indeed, it was Chancey whom the circuit court held in contempt, and it was he who paid the fine. Illustrating what we have said was this colloquy following the trial court\u2019s announcement that it was finding Chancey in contempt:\n\u201cTHE COURT: I guess we will hold the State\u2019s Attorney in contempt and fine him \u2014 how about $10, and we \u25a0will see what happens. Good luck, gentlemen.\nMR. CHANCEY: When you say, \u201cState\u2019s Attorney,\u201d do you mean myself since I am the one, I am the supervisor over Miss Notson? I am the one that is taking the position. I take it that is so the record is clear.\nTHE COURT: The individual standing before the Court, I suppose, is in direct contempt.\u201d\nThe appellate court did not err in designating \u201cthe People\u201d as appellee for purposes of the contempt proceeding.\nIt was the interest of \u201cthe People\u201d that was involved and it was appropriate for the court to appoint the Attorney General in the appeal. A court\u2019s inherent authority to initiate contempt proceedings understandably includes authority to appoint an attorney to represent the public interest in vindication of the court\u2019s authority. (See Young v. United States ex rel. Vuitton et Fils S.A. (1987), 481 U.S. 787, 793, 95 L. Ed. 2d 740, 749-50, 107 S. Ct. 2124, 2130.) In Marcisz v. Marcisz (1976), 65 Ill. 2d 206, this court held that contempt proceedings may be prosecuted \u201cby counsel for a litigant, by the State\u2019s Attorney or by an amicus curiae appointed by the court\u201d (65 Ill. 2d at 210). (See also People v. Goss (1957), 10 Ill. 2d 533.) As the appellant was an assistant State\u2019s Attorney, it surely would have been inappropriate to appoint an attorney from that office under the circumstances here. Too, there was nothing inconsistent in the Attorney General\u2019s taking a position different from that of the State\u2019s Attorney on the issue of the propriety of the court\u2019s order denying the motion to quash. See People v. Walker (1988), 119 Ill. 2d 465.\nThe second contention of Chancey is that the contempt conviction should be overturned because it was based on an improper denial of the People\u2019s motion to quash the defendant\u2019s subpoena duces tecum. In reviewing the contempt judgment we must examine the propriety of the court\u2019s order directing Chancey to comply with the subpoena which, it is said, was improperly violated. If the order were invalid, the contempt judgment must be reversed. People v. Verdone (1985), 107 Ill. 2d 25, 30; People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 174.\nChancey argues that the court\u2019s order directing him to comply with the subpoena is invalid on the ground that the defendant did not make a sufficient showing to entitle him to the use of the subpoena. Chancey contends that in misdemeanor prosecutions (the defendant here was charged with misdemeanor battery), a defendant must first seek production of materials by way of discovery before calling for a subpoena duces tecum. He asserts, too, that even if the material were not discoverable, the defendant failed to make an adequate showing under United States v. Nixon (1974), 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 to entitle him to the subpoena.\nContrary to Chancey\u2019s claim, the defendant was not required to proceed by way of discovery before obtaining a subpoena duces tecum. A subpoena is a judicial compulsory process assured by the sixth amendment to the Constitution of the United States, and is applicable in \u201call criminal prosecutions.\u201d (Washington v. Texas (1967), 388 U.S. 14, 23-24, 18 L. Ed. 2d 1019, 1025, 87 S. Ct. 1920, 1925; U.S. Const., amend. VI; People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 265.) In Fisher, this court stated that \u201c[our] discovery rules may not, without substantial reason *** limit a criminal party\u2019s access to a court\u2019s compulsory process.\u201d (77 Ill. 2d at 268.) The court held that a defendant may seek a pretrial subpoena to gather discoverable material without first having attempted to obtain the materials through discovery. (77 Ill. 2d at 268.) Although the defendant in Fisher was charged with a felony, and this defendant with a misdemeanor, the State has given no persuading reason for distinguishing between the criminal grades. We further observe that, in any event, the defendant, charged with a misdemeanor, had no right to discovery. See 107 Ill. 2d R. 411; People v. Schmidt (1974), 56 Ill. 2d 572.\nThe appellate court stated that, as there was no court reporter at the hearing on the State\u2019s motion to quash the defendant\u2019s subpoena and no transcript of the proceeding, it could not review the correctness of the order to comply. It held that because of the absence of a complete record, which is the obligation of the appellant to furnish, it was required to presume that the defendant presented evidence and witnesses to justify the issuance of the subpoena.\nThe affirmance of a judgment of contempt, however, cannot rest only on presumptions that the defendant made an adequate showing justifying issuance of the subpoena and, second, that the order to comply which the contemnor (Chancey) refused to obey was a proper order. An accused has a right to have the decision of the trial judge finding him in contempt reviewed, and justification for that order must be found in the order itself or in conjunction with the report of proceedings. (People v. Tomashevsky (1971), 48 Ill. 2d 559, 564.) \u201cAll the essential facts must be fully set forth and no part thereof can be supplied by presumptions or inferences.\u201d (People v. Loughran (1954), 2 Ill. 2d 258, 263.) As this court put it in People v. Tavernier (1943), 384 Ill. 388, 393:\n\u201cThe cases all recognize the power of courts of record to conduct proceedings for contemptuous acts committed in the presence of the court and to administer punishment in proper cases. This may include a fine or jail sentence, or both. When a court thus instantly punishes without further proof or examination, without plea, trial or issue, it is exercising a power which is not recognized in other proceedings and one which may be arbitrarily used. To safeguard against abuse a review may be had, and since the case is submitted to a reviewing court on the order of commitment, the law imposes upon those who defend the entry of the order the burden of having it contain facts sufficient to show that the court was warranted in entering the order.\u201d\nSee also People v. Tomashevsky (1971), 48 Ill. 2d 559, 564.\nThe common law entry for July 3, 1985, the date of the hearing on the motion to reconsider the denial of the State\u2019s motion to quash, simply indicates that counsel was present and that the court found Chancey in contempt \u201cfor not complying with the Court\u2019s order filed July 1, 1985.\u201d While the hearing on the State\u2019s motion to quash the defendant\u2019s subpoena was not transcribed, the hearing on the State\u2019s motion to reconsider the denial of the motion to quash and the hearing on the motion to reconsider the judgment of contempt were taken down and transcribed.\nAt the hearing on Chancey\u2019s motion to reconsider the denial of the motion to quash, the defendant stated that the allegations set out in his motion to dismiss the information, which the trial court had previously denied, \u201csets forth the history of the case.\u201d In the motion, the defendant alleged that an identical charge had been brought against him also in Lake County on January 25, 1985, which had been dismissed on the State\u2019s own motion. The defendant further alleged that the complainant, Andrea Shukovsky, had filed numerous false complaints against him that were determined to be unfounded by the authorities and that from his divorce file he had learned that the complainant suffers from \u201cDSM III,\u201d which according to the defendant, is a diagnosed mental illness. The defendant stated that after he disclosed this information to the State\u2019s Attorney\u2019s office, the charges were dismissed for \u201cinsufficient evidence\u201d and his arrest record was expunged. Neither the State nor Chancey has denied the factual allegations set out in the defendant\u2019s motion.\nWe consider that a sufficient record is before us to determine whether the defendant was entitled to the materials called for in the subpoena. Though we are without the benefit of a transcript of the hearing on the State\u2019s motion to quash the subpoena, the later two hearings were transcribed and the defendant adequately set out his reasons for attempting to obtain the materials called for in the subpoena. Any objection Chancey might have had as to the insufficiency of the record he has waived by failing to raise the question in the circuit court or the appellate court. Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 543.\nOn this record, we judge that the defendant made the showing required to justify the issuance of a pretrial subpoena. In United States v. Nixon (1974), 418 U.S. 683, 699-700, 41 L. Ed. 2d 1039, 1059, 94 S. Ct. 3090, 3103, the Court set out the requirements for the issuance of a subpoena prior to trial:\n\u201c(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general \u2018fishing expedition.\u2019 \u201d\nSee also People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 269.\nChancey states that the defendant\u2019s sole purpose for obtaining the materials called for in the subpoena was to challenge the credibility of the complainant. He says that under Nixon, the need for impeachment evidence is generally insufficient to require its production in advance of trial. (Nixon, 418 U.S. at 701, 41 L. Ed. 2d at 1060, 94 S. Ct. at 3104. See also United States v. Carter (1954), 15 ER.D. 367, 371.) We disagree.\nIt appears from the language in the defendant\u2019s motion to dismiss that the defendant\u2019s purpose in seeking the material described in the subpoena, however, was not simply to obtain information to impeach the testimony of the complainant. He also sought to establish that the State\u2019s Attorney was abusing discretion in bringing the charges against him. As stated above, the State\u2019s Attorney nol-prossed identical charges brought against the defendant for \u201cinsufficient evidence,\u201d and then later refiled the charges. The defendant may reasonably seek to determine what caused the State\u2019s Attorney to refile charges the prosecutor did not consider appropriate, and such information might be important to the defendant in properly preparing for trial. We judge that the defendant has made a sufficient showing entitling him to the materials called for in the subpoena and that the court\u2019s denial of the motion to quash was proper. Accordingly, the judgment of contempt is affirmed.\nIn appeal No. 65051, the defendant argues that the appellate court erroneously reversed the trial court\u2019s order which discharged him on the ground that his right to a speedy trial under section 103 \u2014 5(b) of the Code of Criminal Procedure (111. Rev. Stat. 1985, ch. 38, par. 103 \u2014 5(b)) had been violated. On June 21, 1985, the defendant, who was on bond, filed a speedy-trial demand. On July 3, 1985, at the hearing on the State\u2019s motion to quash the defendant\u2019s subpoena, Assistant State\u2019s Attorney Matthew Chancey was held in contempt, and on August 2, 1985, he filed a timely notice of appeal. Following several continuances, the trial court on December 20, 1985, granted the defendant\u2019s motion for discharge on the ground that the State had failed to bring him to trial within 160 days as required by section 103 \u2014 5(b).\nThe circuit court held that although the State had expressed its willingness to proceed to trial, its failure to comply with the subpoena was the cause of the delay of trial. The appellate court reversed on the ground that the filing of the notice of appeal by the assistant State\u2019s Attorney stayed the prosecution and, therefore, the circuit court was without jurisdiction to enter the order discharging the defendant.\nGenerally, upon the proper filing of a notice of appeal, \u201cthe appellate court\u2019s jurisdiction attaches instanter, and the cause is beyond the jurisdiction of the trial court.\u201d (Daley v. Laurie (1985), 106 Ill. 2d 33, 37; City of Chicago v. Myers (1967), 37 Ill. 2d 470, 472.) The court retains jurisdiction, however, where the matter appealed from is independent of, and collateral to, the case before the trial court (In re Marriage of Petramale (1981), 102 Ill. App. 3d 1049, 1053; Horzely v. Horzely (1979), 71 Ill. App. 3d 542, 545), e.g., an order of contempt (see People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167,172).\nHere, the appellate court held, however, that while the contempt proceeding was collateral to the criminal prosecution, the prosecution was dependent on the resolution of the subpoena and contempt issues. The court stated that the entering of the contempt order was a situation similar to that where there is a pretrial order suppressing evidence from which the State appeals, with the result that the time for discharge under the speedy-trial statute does not run while the appeal pends. See 107 Ill. 2d R. 604(a)(4); People v. Young (1980), 82 Ill. 2d 234.\nThe situation here, however, is distinguishable. There was not an appeal on behalf of the People but rather an appeal by the assistant State\u2019s Attorney as the contemnor. Consequently, Supreme Court Rule 604(aX4), which provides that the time for discharge will not run while an appeal by the State is pending, is not applicable. Also, in any event, in those instances in which the State is permitted to appeal under Rule 604(aXl), the order of the court appealed from is one which has terminated or at least impeded the State\u2019s ability to proceed with the prosecution, e.g., suppression of evidence. (See People v. Flatt (1980), 82 Ill. 2d 250, 264-65.) The order here obviously did not affect the State\u2019s ability to proceed with the prosecution. If there was an effect of the order, it was upon the defendant\u2019s ability to present a defense. The trial court retained jurisdiction despite the appeal by Assistant State\u2019s Attorney Chancey from the judgment of contempt.\nFurther, we judge that the trial court properly held that the defendant\u2019s statutory assurance of a speedy trial was violated. The circumstances here were out of the ordinary. Judging by the defendant\u2019s motion, the State apparently, after considering investigative materials assembled by the defendant, including a claim of evidence of the complainant\u2019s mental condition, in effect dropped the criminal charge. They thereafter, without notice or explanation to the defendant, filed a new criminal information based on the identical incident alleged. The subpoena duces tecum was directed to conversations of the social worker, not only with the defendant\u2019s former wife, but with members of the State\u2019s Attorney\u2019s staff or any police agency. The trial court\u2019s request for an in camera inspection of the materials was rejected by the State.\nIn light of the State\u2019s refusal to consent to the court\u2019s examining in camera the materials sought, the court could only speculate at the purpose in the defendant\u2019s seeking the subpoena duces tecum. The defendant sought materials concerning conversations of the social worker not only with the defendant\u2019s former wife, but with members of a police agency, the State\u2019s Attorney\u2019s staff and any materials that might well relate to the defendant\u2019s preparation of a defense. Under the circumstances we consider the defendant\u2019s right to a speedy trial should be enforced. People v. Terry (1975), 61 Ill. 2d 593, 596; People v. Nunnery (1973), 54 Ill. 2d 372, 376.\nFor the reasons given, the judgment of the appellate court is affirmed as to the order of contempt and reversed as to the order discharging the defendant, and the trial court is affirmed as to this order.\nNo. 65051 \u2014 Appellate court reversed; trial court affirmed.\nNo. 65168 \u2014 Appellate court affirmed.\nJUSTICE STA.MOS took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE WARD" }, { "text": "JUSTICE RYAN,\nconcurring in part and dissenting in part:\nI dissent from that part of the opinion of this court which holds that the defendant\u2019s right to a speedy trial was violated. I would affirm the appellate court in this case, which held that the trial court had no jurisdiction to consider or enter an order of discharge once an appeal from the contempt order had been filed. 151 111. App. 3d 966, 972-73.\nThe opinion of this court finds that the circuit court retained jurisdiction to proceed with the criminal case, although the contempt order had been appealed, because the order appealed from was independent of and collateral to the case before the trial court. The assessment of the contempt order as being independent of and collateral to the criminal case is correct. However, as noted by the appellate court, the criminal case was not independent of the contempt proceeding. The State had answered ready for trial, but the defendant could not present his defense without the information the court ordered the State to produce, and the propriety of the court\u2019s order on the State to produce had to be determined in the appeal from the contempt order.\nThus, the criminal case was dependent on the outcome of the contempt proceeding, and the trial court should not have proceeded in the criminal case before the determination of the contempt issue. If, on review, it should be determined that the trial court was correct in ordering the State to produce, the defendant would then be entitled to receive the information sought and could then fashion his defense. If, however, the court, on review, would determine that the trial court was wrong in its production order, then the case would have to proceed without the information ordered produced, as the State was ready to do before the speedy-trial period had run. The court should not have entertained any order disposing of the criminal case until the contempt question had been resolved. Suppose this court were to hold that the trial court was wrong in entering its order to produce? Under the holding of this opinion, we would be faced with the anomaly of the defendant\u2019s being discharged as a result of the State\u2019s not having produced the information, although the State would have been correct in not complying with the production order.\nFor the reasons stated, I would affirm the order of the appellate court, and I dissent from that portion of this court\u2019s opinion resolving the speedy-trial issue.\nJUSTICE MILLER joins in this partial concurrence and partial dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE RYAN," }, { "text": "MODIFICATION ON DENIAL OF REHEARING\nWe judge that this court\u2019s judgment should be and is hereby vacated insofar as it affirms the appellate court\u2019s judgment and the order of the trial court holding Assistant State\u2019s Attorney Matthew Chancey in contempt of court. The record shows that the trial judge understood that Assistant State\u2019s Attorney Chancey\u2019s contempt was purely a formal one and that the motivation for his refusal to comply with the subpoena duces tucem was solely to permit, through an appeal, examination of a question, the answer to which was not free from doubt. Accordingly, the concerned order of the appellate court and the order of the trial court holding Mr. Chancey in contempt are vacated.", "type": "rehearing", "author": null } ], "attorneys": [ "Josette Skelnik, of Robinson & Skelnik, of Elgin, and Jed Stone, of Waukegan, for appellant Shukovsky.", "Kenneth R. Boyle and William L. Browers, of the State\u2019s Attorneys Appellate Prosecutor, of Elgin (Fred L. Foreman, State\u2019s Attorney, of Waukegan, of counsel), for appellant Chancey.", "Neil F. Hartigan, Attorney General, of Springfield, and Fred L. Foreman, State\u2019s Attorney, of Waukegan (Kenneth R. Boyle and William L. Browers, of the State\u2019s Attorneys Appellate Prosecutor, of Elgin, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 65051.\n(No. 65168.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID SHUKOVSKY, Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, v. DAVID SHUKOVSKY (Matthew Chancey, Appellant).\nOpinion filed December 21, 1988.\nModified on denial of rehearing May 26, 1989.\nJosette Skelnik, of Robinson & Skelnik, of Elgin, and Jed Stone, of Waukegan, for appellant Shukovsky.\nKenneth R. Boyle and William L. Browers, of the State\u2019s Attorneys Appellate Prosecutor, of Elgin (Fred L. Foreman, State\u2019s Attorney, of Waukegan, of counsel), for appellant Chancey.\nNeil F. Hartigan, Attorney General, of Springfield, and Fred L. Foreman, State\u2019s Attorney, of Waukegan (Kenneth R. Boyle and William L. Browers, of the State\u2019s Attorneys Appellate Prosecutor, of Elgin, of counsel), for the People." }, "file_name": "0210-01", "first_page_order": 220, "last_page_order": 241 }