{ "id": 3567634, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY BOCLAIR, Defendant-Appellant", "name_abbreviation": "People v. Boclair", "decision_date": "1985-12-12", "docket_number": "No. 4-85-0384", "first_page": "350", "last_page": "356", "citations": [ { "type": "official", "cite": "139 Ill. App. 3d 350" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "399 U.S. 78", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168686 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/399/0078-01" ] }, { "cite": "422 U.S. 225", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9475 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/422/0225-01" ] }, { "cite": "432 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "253" }, { "page": "253" } ], "opinion_index": 0 }, { "cite": "89 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493252 ], "weight": 3, "pin_cites": [ { "page": "109" }, { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0103-01" ] }, { "cite": "362 N.E.2d 681", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 276", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464400 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0276-01" ] }, { "cite": "311 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "597" } ], "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 365", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2698589 ], "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0365-01" ] }, { "cite": "254 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891442 ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0132-01" ] }, { "cite": "413 N.E.2d 1316", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1969, "opinion_index": 0 }, { "cite": "90 Ill. App., 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3161069 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0840-01" ] }, { "cite": "279 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. 2d 196", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912609 ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0196-01" ] } ], "analysis": { "cardinality": 698, "char_count": 14330, "ocr_confidence": 0.757, "pagerank": { "raw": 5.639814846781675e-08, "percentile": 0.35221049566982476 }, "sha256": "6173101bc1e62e30d0bf0b1e84e6a41664016279779a94f6c77512119683f6b4", "simhash": "1:89c7b42ef5a09bee", "word_count": 2243 }, "last_updated": "2023-07-14T16:28:01.821667+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY BOCLAIR, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MORTHLAND\ndelivered the opinion of the court:\nOn November 1, 1984, an indictment charged defendant Stanley Boclair with four counts of murder. The trial court appointed the public defender to represent the defendant, along with an investigator to assist defense counsel. Subsequently, the public defender withdrew as counsel and the court appointed the law firm of Jenner & Block to represent the defendant. The investigator continued to assist the new defense counsel in preparing for trial.\nBoth the prosecution and the defense filed motions for discovery. The People\u2019s response to the defendant\u2019s discovery request ultimately produced the names of more than 200 potential prosecution witnesses. Jenner & Block attorney Joel T. Pelz, the defendant\u2019s counsel, commenced interviewing many of these prosecution witnesses with the assistance of the court-appointed investigator. The State had similarly requested the names of defense witnesses along with \u201ctheir relevant written or recorded statements, including memoranda reporting or summarizing their oral statements.\u201d At a hearing on March 14, 1985, the State expanded this discovery request to include \u201cnotes and memoranda that are being prepared or taken during [defense] interviews\u201d of witnesses originally named by the State. Defense counsel objected to this expanded request, and a second hearing was held on March 28, 1985.\nOn May 9, 1985, the court ruled that pursuant to \u201cSupreme Court Rule 413(d)(ii) and (e) and the inherent authority of the judiciary to control and regulate the administration of criminal justice,\u201d the State was entitled to discover the interview notes. The court ordered defense attorney Pelz to submit the reports for in camera inspection. The trial judge inspected the reports and highlighted those portions which he believed were relevant and did not contain impressions or characterizations of the individuals who were interviewed. The trial court then ordered Pelz to turn over to the State\u2019s Attorney the highlighted portions of the reports. The court noted that in reviewing the reports, it had no knowledge of what might be impeaching material. Mr. Pelz refused to deliver the notes to the prosecution, asserting they contained protected \u201cwork product\u201d and were not discoverable by the prosecution under Supreme Court Rule 413 (87 Ill. 2d R. 413). The trial court held attorney Pelz in contempt of court, sentencing him to six days\u2019 conditional discharge. Mr. Pelz appeals from the contempt holding.\nOn appeal, Pelz reasserts his arguments that Supreme Court Rule 413 does not require him to turn over the investigator\u2019s reports during pretrial discovery and that the reports contain protected work product. In addition, Pelz claims that forcing him to turn over the reports would violate his client\u2019s rights of effective assistance of counsel and due process. He also asserts that Rule 413 was enacted in violation of the separation of powers doctrine. We agree with the appellant that these reports are work product. Likewise, they are not discoverable before trial pursuant to Supreme Court Rule 413 under the facts of this case. However, since the appellant did not raise his constitutional arguments at the trial court, those issues are not properly before this court and are waived. People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.\nInitially, we note that the supreme court rules on discovery intend to supplant the trial court\u2019s inherent jurisdiction over the criminal justice process during the pretrial stages. (People v. Grier (1980), 90 Ill. App., 3d 840, 413 N.E.2d 1316; see also Bruske v. Arnold (1969), 44 Ill. 2d 132, 254 N.E.2d 453.) Accordingly, the trial judge has discretion to order pretrial discovery only as permitted by supreme court rule. This inherent power could not authorize the trial court order presently at issue.\nWe reject the argument that Supreme Court Rule 413 requires the investigator\u2019s reports to be turned over upon timely request. In relevant part, Rule 413 reads as follows:\n\u201c(d) Defenses. Subject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defense counsel shall inform the State of any defenses which he intends to make at a hearing or trial and shall furnish the State with the following material and information within his possession or control:\n(i) The names and last known addresses of persons he intends to call as witnesses together with their relevant written or recorded statements, including memoranda reporting or summarizing their oral statements, an[y] record of prior criminal convictions known to him; and\n(ii) any books, papers, documents, photographs, or tangible objects he intends to use as evidence or for impeachment at a hearing or trial;\n(e) Additional Disclosure. Upon a showing of materiality, and if the request is reasonable, the court in its discretion may require disclosure to the State of relevant material and information not covered by this rule.\u201d 87 Ill. 2d R. 413.\nThe trial court properly rejected application of subsection (d)(i) in the present case, because the reports at issue do not summarize statements of defense witnesses.\nNevertheless, the trial court did find that subsection (d)(ii) of Rule 413 authorized discovery of the reports. This determination was erroneous. The State contends, in essence, that the \u201cpapers\u201d referred to in subsection (d)(ii) include the reports at issue in this case. The State\u2019s argument would interpret subsection (d)(ii) as a \u201ccatchall\u201d provision-permitting discovery of items admittedly prepared by the defense in anticipation of litigation, but which do not qualify as expert\u2019s reports under subsection (c), nor as defense witness statements under subsection (d)(i). (87 111. 2d R. 413(c), (d)(i).) Giving \u201cpapers\u201d the broad definition which the State\u2019s interpretation requires ignores the existence of the subsection (e) \u201ccatchall\u201d provision. Moreover, such broad interpretation would vitiate the work product doctrine as set forth in Supreme Court Rule 412(j). We reject an interpretation with such far-reaching consequences.\nIn the present context, ordering discovery under Rule 413 raises a further problem in that defense counsel asserts that these notes would not be used to impeach the State\u2019s witnesses. At most, counsel states, the notes will be used to refresh the defense investigator\u2019s recollection if he testifies as an impeaching witness. Accordingly, the notes would not be material intended to impeach prosecution witnesses as contemplated by Rule 413(dXii).\nFinally, we conclude that the trial court\u2019s order does not fall within its discretion to permit additional discovery by the State under Rule 413(e). In interpreting the parallel catchall provision relating to discovery by the defense (87 111. 2d R. 412(h)), the appellate court has noted that this \u201cdiscretionary provision was intended to have a small scope.\u201d (People v. Manley (1974), 19 Ill. App. 3d 365, 370, 311 N.E.2d 593, 597.) We believe the discretion provided for in Rule 413(e) should also be given a limited reading. The defense investigator\u2019s reports do not contain factual information not otherwise obtainable by the prosecution; their only value is to cross-examine the defendant\u2019s investigator should he take the stand. In the present case, the sought-after reports will be irrelevant unless and until the defendant\u2019s investigator testifies to impeach one of the State\u2019s witnesses. Unless that juncture is reached, the reports would merely give the State\u2019s Attorney insight into defense counsel\u2019s approach to Stanley Boclair\u2019s defense. Although the trial court\u2019s order may serve expediency by permitting trial to continue without interruption if the defendant\u2019s investigator testifies, such considerations should not permit otherwise prohibited discovery. The State\u2019s Attorney has access to each person the defense has interviewed. He is not also entitled to use the effort of defense counsel to shore up weaknesses in his case or to uncover new avenues of inquiry. Acquiring the relevant portions of these reports at trial will adequately preserve the State\u2019s interest in answering impeachment of prosecution witnesses.\nWe also agree with Pelz that the materials at issue fall within the so-called work product privilege. Illinois does not generally require either the State or the defense to disclose its work product to the other before the trial. Supreme Court Rule 412(j)(i) prevents disclosure of \u2018 \u2018records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the State or members of its legal or investigative staffs, or of defense counsel or his staff.\u201d (87 Ill. 2d R. 412(j)(i).) This rule clearly protects a report written by a defense investigator as if the defense attorney prepared the document himself. See also People v. Knippenberg (1977), 66 Ill. 2d 276, 362 N.E.2d 681.\nThe investigator\u2019s report at issue in the present case is quite similar to the report at issue in Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 432 N.E.2d 250. In Consolidation Coal, the Blinois Supreme Court rejected the argument that notes and reports of an attorney\u2019s interviews with employees of his corporate client were not protected under the work product doctrine simply because those notes contained primarily factual information. The supreme court found that \u201cnotes regarding oral statements of witnesses, whether in the form of attorney\u2019s mental impressions or memoranda, necessarily reveal in varying degrees the attorney\u2019s mental processes in evaluating the communications. [Citations.]\u201d (89 Ill. 2d 103, 109, 432 N.E.2d 250, 253.) In the present case, an investigator took notes of interviews conducted under the direction of defense counsel. As in Consolidation Coal, these notes and subsequent reports inevitably reflect defense counsel\u2019s evaluations and strategy \u2014 protection of which is the very heart of the work product doctrine. Although Consolidation Coal addresses discovery in the context of civil litigation, the concerns that case addresses are even more acute in the context of a criminal prosecution.\nLikewise, the present case does not fall within the exception to the work product doctrine as expounded in Consolidation Coal. Because an attorney\u2019s notes and memoranda might, \u201con rare occasions, constitute the only source of factual material,\u201d the supreme court determined that an exception to the work product doctrine must be made in such instances. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 111, 432 N.E.2d 250, 253.) In the present case, we are dealing with interviews of State witnesses. Presumably, the prosecution has as much, if not more, access to any information these witnesses have. Moreover, the State\u2019s primary interest in these reports is assertedly for their impeachment value should the defendant\u2019s investigator take the stand. We are not persuaded that these reports fall within the narrow exception to the work product doctrine permitting discovery of factual matters unavailable from other sources.\nDespite our determination that the work product doctrine protects the reports at issue from pretrial discovery, the trial court may order them turned over to the prosecution should the defense use the investigator\u2019s testimony to impeach State witnesses. If the defendant\u2019s investigator testifies to impeach prosecution witnesses, the defendant will have waived the protection of the work product rule and may be required to turn over to the State any portion of these reports relevant to cross-examining the investigator. (United States v. Nobles (1975), 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160; People v. Grier (1980), 90 Ill. App. 3d 840, 413 N.E.2d 1316.) The defendant recognizes this rule and offers, in his brief before this court, to turn over any relevant materials if his investigator testifies to impeach State witnesses.\nWe find no merit in the State\u2019s contention that fairness or reciprocity requires defense counsel to turn over his investigator\u2019s reports before trial. Supreme Court Rule 413 provides liberal discovery privileges to the prosecution, and we see no reason to enhance those rights under the circumstances of this case. Moreover, even if the State\u2019s discovery rights do not precisely parallel those of the defendant, any tilt of the balance toward the defense accords with the notion that the prosecutor represents all the people of Illinois including the defendant, while defense counsel is advocate only for his client. The State\u2019s primary goal must be justice, while defense counsel looks primarily to his client\u2019s interests.\nSimilarly, we do not face a situation like that presented to the supreme court in Williams v. Florida (1970), 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893. In Williams, the high court upheld a Florida rule requiring a defendant to inform prosecutors if an alibi defense was anticipated, name the place defendant claimed to have been, and provide names and addresses of defense alibi witnesses. The alibi defense is distinguishable from the reports at issue here by the ease with which a defendant can fabricate an alibi. Likewise, unless the defendant discloses his alibi witnesses, the State has no access to such information. By contrast, the information which the prosecution seeks in the present case is available without the defendant\u2019s cooperation since it comes from \"witnesses whom the State originally identified. Although the efforts of defense counsel might provide a short cut for the prosecution\u2019s investigators, simple efficiency is not enough to justify compelling this discovery.\nFor the foregoing reasons, the contempt citation of Joel T. Pelz is reversed and the cause remanded for further proceedings.\nReversed and remanded.\nWEBBER and SPITZ, JJ., concur.", "type": "majority", "author": "JUSTICE MORTHLAND" } ], "attorneys": [ "John H. Mathias, Jr., and Joel T. Pelz, both of Jenner & Block, of Chicago, for appellant.", "Donald D. Bernard!, State\u2019s Attorney, of Pontiac (Robert J. Biderman and Gwendolyn Klingler, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY BOCLAIR, Defendant-Appellant.\nFourth District\nNo. 4-85-0384\nOpinion filed December 12, 1985.\nRehearing denied January 16, 1986.\nJohn H. Mathias, Jr., and Joel T. Pelz, both of Jenner & Block, of Chicago, for appellant.\nDonald D. Bernard!, State\u2019s Attorney, of Pontiac (Robert J. Biderman and Gwendolyn Klingler, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0350-01", "first_page_order": 372, "last_page_order": 378 }