{ "id": 249166, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIDNEY FOSTER, Defendant-Appellant", "name_abbreviation": "People v. Foster", "decision_date": "1995-03-27", "docket_number": "No. 4\u201493\u20140201", "first_page": "562", "last_page": "570", "citations": [ { "type": "official", "cite": "271 Ill. App. 3d 562" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "627 P.2d 660", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10442473 ], "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/p2d/627/0660-01" ] }, { "cite": "98 L. Ed. 2d 798", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 602206, 11300959 ], "weight": 2, "pin_cites": [ { "page": "826" } ], "opinion_index": 0, "case_paths": [ "/us/484/0400-01", "/us/347/0396-01" ] }, { "cite": "484 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 602206 ], "weight": 4, "pin_cites": [ { "page": "433" }, { "page": "665", "parenthetical": "Brennan, J., dissenting, joined by Marshall and Blackmun, JJ." } ], "opinion_index": 0, "case_paths": [ "/us/484/0400-01" ] }, { "cite": "639 N.E.2d 959", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "966" }, { "page": "965-66" }, { "page": "965" } ], "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 351", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887303 ], "weight": 3, "pin_cites": [ { "page": "361" }, { "page": "361-62" }, { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0351-01" ] }, { "cite": "633 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "47" }, { "page": "47" } ], "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5374532 ], "weight": 2, "pin_cites": [ { "page": "198-99" }, { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0191-01" ] } ], "analysis": { "cardinality": 832, "char_count": 18727, "ocr_confidence": 0.715, "pagerank": { "raw": 1.6077278536701805e-07, "percentile": 0.685051136185932 }, "sha256": "0895441d10845887b1010acd7b1b7d36a0f855c130b309ac2d9c526a0af8af3d", "simhash": "1:c36ff4ee5e479737", "word_count": 3023 }, "last_updated": "2023-07-14T19:52:56.134317+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. SIDNEY FOSTER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn December 1992, a jury convicted defendant, Sidney Foster, of two counts of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 4(b)(8)), and the trial court later sentenced him to concurrent terms of four years in prison on each count. Defendant appeals, arguing that the trial court deprived him of a fair trial by refusing to permit him to present his affirmative defense of self-defense because he had failed to comply with a discovery order.\nWe reverse and remand.\nI. BACKGROUND\nIn August 1992, the State charged defendant with two counts of aggravated battery, alleging that while defendant was at a gas station in Decatur, which constituted \"a public place of accommodation,\u201d he \"knowingly made physical contact of an insulting or provoking nature with Steve Woodward, in that he grabbed Steve Woodward on the arm, and spit on Steve Woodward\u201d (count I), and he \"knowingly caused bodily harm to Steve Woodward, in that he bit Steve Woodward on the chest\u201d (count ID. Thereafter, defendant\u2019s attorney entered his appearance, and on September 3, 1992, the trial court conducted a preliminary hearing, finding probable cause to believe that defendant committed these offenses. The court then arraigned defendant, who entered a not guilty plea and requested a jury trial.\nThe trial court also allotted the matter for jury trial in November 1992 and entered a pretrial discovery order on both the State and the defense. The record shows that the court served a copy of this order on defendant in open court. The order directed, in part, that within 15 days, defense counsel \"shall list any defenses which he intends to make at a hearing or trial, including affirmative defenses!,] non-affirmative defenses, alternative!,] and inconsistent defenses.\u201d The order further directed defense counsel to furnish the names and last known addresses of persons he intended to call as witnesses, together with their relevant written or recorded statements.\nThe State filed its answer to the pretrial discovery order in open court immediately after the court entered this order. The State\u2019s answer recited that the State would call the individuals whose names appeared in the police reports being furnished to defendant and incorporated within the State\u2019s answer (although we note that those police reports were not made part of the common law record). The State\u2019s answer also included a list of witnesses to statements defendant made at the gas station.\nIn October 1992, the trial court conducted a trial readiness call of cases allotted for the November jury trial term, and on motion of the defendant, without objection by the State, trial of this case was continued until December 7, 1992, and for a trial readiness call on November 23, 1992. At that trial readiness call, both the State and defendant announced ready for trial and the court confirmed the trial allotment.\nOn December 15, 1992, when the trial court called this case for trial, the State objected to any affirmative defenses that defendant might wish to announce on the morning of trial. In support of its objection, the State pointed out that despite the discovery order the court had entered over three months earlier, defense counsel had filed no discovery response. The court then asked defense counsel to respond to the State\u2019s objection, and the following discussion took place:\n\"[Defense counsel]: I think he has a right of self-defense and I think from the police reports in the case it is obvious that\u2014\nTHE COURT: Are you familiar with the discovery order entered in the case? Paragraph one states the defendant shall list any defenses which he intends to make at a hearing or trial, including affirmative defenses, non-affirmative defenses, alternative!,] and inconsistent defenses.\n[Defense counsel]: I am aware of that, your Honor.\nTHE COURT: Anything else?\n[Defense counsel]: No.\n[Prosecutor]: I would just point out that the case was continued once on the defendant\u2019s motion and there\u2019s no excuse for not providing this information. I would request that he be debarred [sic] from presenting any defenses. That\u2019s the only way this is going to stop, your Honor.\nTHE COURT: [Defense counsel].\n[Defense counsel]: Your Honor, I think it\u2019s quite evident from the police reports that the defense is self[-]defense. It just doesn\u2019t seem to me to be the sort of matter that needs to be included in a formal statement to the prosecution that the defendant intends to plead self[-]defense.\nTHE COURT: Well, discovery orders, or any orders must have some meaning or else it becomes insignificant. In this case there is a pre-trial discovery order directing both parties to file discovery ***. The People have filed their answer. There is no answer on file by the defendant. Orders, as I say, must have some meaning or we may as well do away with them. There is no notice of any defense on file. Therefore, the People\u2019s motion I believe is well taken. The defendant is barred of presenting a defense.\n[Defense counsel]: I request a continuance.\nTHE COURT: For what purpose?\n[Defense counsel]: Well, the defense of the defendant is that he is going to claim self[-]defense. We need\u2014\n[Prosecutor]: We object, your Honor. The defendant has been given one continuance. We have a witness who is here from Peoria. He is approaching eighty years old, sitting in our office, ready for trial.\nTHE COURT: Motion by the defendant for continuance. Objection by the People. Motion denied.\u201d\nThe case proceeded to jury trial, and the State called Woodward and three other persons present at the gas station during the altercation to testify. Their testimony essentially established that Woodward was in the gas station to make a purchase when defendant, whom he did not know, grabbed his arm and muttered something. Defendant smelled of alcohol, walked uneasily, and did not speak clearly. Woodward told defendant to stay away from him, but defendant threatened to fight Woodward and spit on him. Defendant approached Woodward with clenched fists and a fight ensued in which Woodward knocked him down. Defendant got up and struck at Woodward, who grabbed defendant in a headlock. Defendant then bit Woodward on his chest.\nAfter the State rested, defendant presented no evidence. At the jury instruction conference, defense counsel objected to the State\u2019s instructions because they contained no reference to self-defense. The trial court overruled the objection on the ground that the record contained no evidence of self-defense. Defense counsel acknowledged that was true, but explained it was because the court prohibited defendant from presenting his self-defense claim. Counsel added the following: \"I have abided by the court\u2019s ruling on that issue. I am not about to put him up there and have a problem with disobeying the court\u2019s rulings.\u201d In response, the court explained again that defendant was \"barred from presenting any evidence in the nature of a defense because he didn\u2019t comply with the court\u2019s order of discovery, not because of anything the defendant has done beyond that.\u201d\nThe jury convicted defendant of both counts, and he filed a post-trial motion alleging that the trial court erred in refusing to allow him to present evidence that he acted in self-defense. The court denied his motion and proceeded directly to the sentencing hearing. Defendant testified at that hearing that Woodward initiated the fight at the gas station by complaining about defendant\u2019s parking his bicycle near the gas pumps. Defendant further claimed that Woodward repeatedly used racial slurs and started fighting with him. According to defendant, he struck back against Woodward only in self-defense. The trial court sentenced defendant to four years in prison, and this appeal followed.\nII. ANALYSIS\nDefendant concedes that the correct sanction to be applied for a violation of the criminal discovery rules lies within the trial court\u2019s discretion. (See People v. Stack (1994), 261 Ill. App. 3d 191, 198-99, 633 N.E.2d 42, 47.) However, defendant contends that the trial court here abused its discretion by imposing the most severe sanction available, which was to completely prohibit him from presenting his claim that he acted in self-defense.\nSupreme Court Rule 415, which regulates discovery in criminal cases and sets forth the sanctions available for violations of discovery orders, reads as follows:\n\"(i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.\n(ii) Wilful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.\u201d 134 Ill. 2d R. 415(g).\nOn appeal, defendant does not challenge the trial court\u2019s determination that he did not comply with the discovery order. Instead, he challenges the sanction the trial court imposed, claiming that it was too severe under the circumstances of this case. In response, the State simply argues that the trial court did not abuse its discretion by choosing the sanction of completely barring defendant\u2019s sole defense.\nWe find singularly unsatisfactory that our only options are to either affirm or reverse the specific sanction imposed in this case. On one hand, the record certainly suggests that defense counsel simply disregarded the trial court\u2019s discovery order and was prepared to go to trial without ever responding to it. Thus, we sympathize with the trial court\u2019s frustration at this state of affairs, particularly in view of the prosecutor\u2019s unrebutted remarks which suggest compliance by defense counsel with discovery orders was an ongoing problem.\nOn the other hand, the trial court\u2019s action barring defendant from asserting self-defense in this aggravated battery case literally stopped him from presenting any defense for the jury\u2019s consideration. Thus, defendant correctly characterizes this sanction as the most serious that could be imposed under these circumstances.\nIn asking the trial court to bar defendant from presenting his claim of self-defense, the prosecutor argued that only by so ruling could the court stop defense attorneys\u2019 chronic failure to comply with discovery orders in criminal cases. By imposing the order it did, the court may have accepted this argument, but we do not. Instead, we believe the court had another option available that might not only have proved more effective, but also would have avoided the harsh consequences of depriving defendant of his only available defense. That option was to punish the offending attorney directly and personally, and not to impose sanctions upon his client.\nWe note that Rule 415(g)(ii) specifically authorizes the trial court to subject counsel to appropriate sanctions for his wilful violation of a discovery order. However, we cannot unduly criticize the trial court for not doing so in this case because so little precedent exists for that action in Illinois. To correct that deficiency, and because such discovery violations unfortunately continue to occur in criminal cases at the hands of both defense counsel and prosecutors, we take this opportunity to emphasize that the supreme court meant what it said in Rule 415(g)(ii) about imposing sanctions directly upon counsel.\nBecause Rule 415(g)(ii) speaks of a \u201cwilful violation,\u201d a trial court should explicitly ask the counsel whom the court believes may have violated a discovery order for his explanation, if any, as to why he failed to comply with the court\u2019s order. Once the court hears counsel\u2019s response, the court should then make specific findings of fact before concluding that a wilful violation by counsel has occurred. (See People v. Seesengood (1994), 266 Ill. App. 3d 351, 361, 639 N.E.2d 959, 966.) If the court finds \u2014 as the record in the present case suggests \u2014 a wilful violation by counsel, then the court should consider two unrelated paths of action by asking both of the following questions: (1) how important and necessary is the new evidence being offered in violation of the discovery rules, and if the court admits it, how prejudicial and surprising will it be to the other side? And, (2) what personal sanction, if any, should the court impose upon counsel so as to both punish and deter wilful violations of its discovery order?\nApplying the first part of the above analysis to the present case, this record suggests that the State was not particularly surprised by defendant\u2019s self-defense claim \u2014 we note that the police officer who testified at the preliminary hearing stated defendant claimed to have acted in self-defense \u2014 and the prejudice from letting defendant so testify would not have been great. Given the strength of the State\u2019s case, defendant\u2019s self-defense claim looks rather weak and flimsy. Nonetheless, resolution of such claims lies within the province of the jury.\nApplying the second part of the above analysis to this case, the concerns expressed by the trial court and the State about defense counsel\u2019s disregard (and therefore wilful violation) of the court\u2019s discovery order appear well-founded, and the court\u2019s action to punish and deter such conduct was needed. However, instead of barring defendant\u2019s self-defense claim, the trial court could have achieved the goals of punishment and deterrence by fining defense counsel several hundred dollars as a sanction under Rule 415(g)(ii). (Compare Seesengood, 266 Ill. App. 3d at 361-62, 639 N.E.2d at 965-66.) We do not believe that trial courts would need to impose many such sanctions before all counsel in criminal cases begin to treat discovery orders with the respect to which they are entitled.\nIn support of our holding that trial courts should always consider personal sanctions under Rule 415(g)(ii) against attorneys who willfully violate discovery orders in criminal cases, we note the views expressed by Justice Brennan in his dissent from the Court\u2019s decision in Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646, approving the exclusion of a defendant\u2019s alibi witnesses as a sanction for a discovery violation:\n\"In the absence of any evidence that a defendant played any part in an attorney\u2019s willful discovery violation, directly sanctioning the attorney is not only fairer but more effective in deterring violations than excluding defense evidence. [Citation.] The threat of disciplinary proceedings, fines, or imprisonment will likely influence attorney behavior to a far greater extent than the rather indirect penalty threatened by evidentiary exclusion. Such sanctions were available here. Rather than punishing the defendant under Rule 415(g)(1), the trial court could have sanctioned the attorney under Rule 415(g)(ii), which provides that 'Wilful violation by counsel of an applicable discovery rule ... may subject counsel to appropriate sanctions by the court.\u2019 [Citation.] Direct sanctions against the attorney would have been particularly appropriate here since the discovery rule violated in this case places the obligation to comply with discovery not on the defendant, but directly on the attorney: providing that, upon motion by the State, a 'defense counsel ... shall furnish the State with ... the names and last known addresses of persons he intends to call as witnesses ....\u2019 \u201d (Emphasis in original.) Taylor, 484 U.S. at 433, 98 L. Ed. 2d at 826, 108 S. Ct. at 665 (Brennan, J., dissenting, joined by Marshall and Blackmun, JJ.).\nThe only Illinois case our research has disclosed in which a trial court imposed a sanction on an attorney for violating a discovery order in a criminal case was this court\u2019s recent Seesengood decision. In Seesengood, the trial court imposed $1,074 in sanctions against the State\u2019s Attorney personally for his failure to timely disclose the existence of a tape-recorded interview that the State should have disclosed under the discovery order the court entered. (Seesengood, 266 Ill. App. 3d at 361, 639 N.E.2d at 965.) This court reversed on the sole ground that the record did not contain any facts to support the trial court\u2019s finding that the State\u2019s Attorney\u2019s discovery violation was wilful. However, we intimated no criticism of the trial court\u2019s action in directly punishing an attorney in a criminal case for a wilful violation of a discovery order, nor did we suggest in any way that the $1,000 sanction would be excessive in an appropriate case.\nThe record in this case contains no indication that the trial court even considered the possibility of imposing a sanction directly and personally upon defense counsel, as opposed to depriving defendant of his only available defense. We agree with the views expressed in Cano v. Municipality of Anchorage (Alaska Ct. App. 1981), 627 P.2d 660, 663, in the context of a defendant\u2019s request to proceed pro se with assistance of counsel, in which the court wrote the following:\n\"In the exercise of sound legal discretion, a [trial] court must consider the alternatives available to it and choose among them. When the trial court fails to recognize the alternatives from which it may choose, it cannot be said that discretion was in fact exercised.\u201d\nBecause the trial court did not consider the possibility of imposing a sanction directly and personally upon defense counsel, as opposed to barring defendant from presenting his claim of self-defense, we conclude that the trial court did not fully and appropriately utilize its discretion when confronted with defendant\u2019s discovery violation. (See Stack, 261 Ill. App. 3d at 199, 633 N.E.2d at 47.) Accordingly, we reverse and remand for a new trial, and we do so in the hope that by this decision, we have made clear to trial courts what additional alternatives are available when exercising their discretion regarding discovery violations.\nIII. CONCLUSION\nFor the reasons stated, we reverse defendant\u2019s conviction and remand for a new trial.\nReversed and remanded.\nKNECHT, P.J., and GREEN, J\u201e concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Lawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIDNEY FOSTER, Defendant-Appellant.\nFourth District\nNo. 4\u201493\u20140201\nOpinion filed March 27, 1995.\nDaniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nLawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0562-01", "first_page_order": 582, "last_page_order": 590 }