{ "id": 126398, "name": "In re H.S.H., a Minor (The People of the State of Illinois, Petitioner-Appellant, v. H.S.H., Respondent-Appellee)", "name_abbreviation": "People v. H.S.H.", "decision_date": "2001-06-20", "docket_number": "No. 2 \u2014 00\u20140548", "first_page": "892", "last_page": "899", "citations": [ { "type": "official", "cite": "322 Ill. App. 3d 892" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "187 Ill. App. 3d 977", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2669886 ], "year": 1989, "pin_cites": [ { "page": "983" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0977-01" ] }, { "cite": "47 Ill. App. 3d 362", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3369000 ], "year": 1977, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0362-01" ] }, { "cite": "167 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473944 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "706" }, { "page": "706" }, { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0694-01" ] }, { "cite": "119 Ill. App. 3d 468", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3630546 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "473" }, { "page": "474" }, { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0468-01" ] }, { "cite": "214 Ill. App. 3d 554", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5297204 ], "year": 1991, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0554-01" ] }, { "cite": "299 Ill. App. 3d 1048", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221467 ], "weight": 6, "year": 1998, "pin_cites": [ { "page": "1053" }, { "page": "1053" }, { "page": "1054" }, { "page": "1054" }, { "page": "1050-51" }, { "page": "1054" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/1048-01" ] } ], "analysis": { "cardinality": 769, "char_count": 18992, "ocr_confidence": 0.776, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3377787662523954 }, "sha256": "5f116be478f2d6b8aab17510de926d82580c1333def7220038ed1eff8e3d8175", "simhash": "1:8af8ecbe72acc605", "word_count": 3094 }, "last_updated": "2023-07-14T19:05:07.459628+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re H.S.H., a Minor (The People of the State of Illinois, Petitioner-Appellant, v. H.S.H., Respondent-Appellee)." ], "opinions": [ { "text": "JUSTICE RAPP\ndelivered the opinion of the court:\nThe State filed a delinquency petition alleging that respondent, H.S.H., committed aggravated assault (720 ILCS 5/12 \u2014 2(a)(1) (West 1998)), the unlawful use of weapons (720 ILCS 5/24 \u2014 1(a)(10) (West 1998)), and the unlawful possession of firearms (720 ILCS 5/24\u2014 3.1(a)(1), (a)(2) (West 1998)). The trial court barred two State witnesses from testifying after a third State witness who already testified told them about some of his testimony. We reverse and remand.\nWhen the bench trial commenced on October 28, 1999, respondent\u2019s attorney moved to exclude witnesses from the courtroom, and the State joined in the motion. The State\u2019s first witness was Carlos Garcia. Garcia testified that he did not know respondent before the incident giving rise to this cause occurred. During the afternoon of April 11, 1999, Garcia was with friends Ryan Smith and David Brugger. Garcia parked his car on the street near his home. As Garcia was removing items from his car, he saw five people, including respondent, walk past him and noticed that they were staring at him. Garcia was walking toward his home when he saw respondent flash gang signs. Garcia went to his front steps, put down the items he was carrying, and began to walk toward the group. Respondent retreated through an alley. The remaining individuals began \u201ctalking trash\u201d to Garcia. One of them walked up to Garcia and used his chest to bump Garcia. As Garcia pushed that person, a second person shoved Garcia from behind. Garcia raised his fists to fight the second person, but that person did not engage Garcia.\nGarcia then saw respondent holding a snow shovel, which Garcia identified in court. Garcia warned that he would kill respondent if respondent came any closer. Respondent dropped the shovel and ran away. Garcia then saw Smith arguing with the other individuals. Garcia watched the argument for a few minutes and then saw respondent standing in an alley and holding a gun. Respondent was about 15 to 20 feet from Garcia and was pointing the gun at him. Garcia did not think the gun was real, so he began to walk toward respondent. Respondent pointed the gun toward the ground, cocked it, and pointed it at Garcia again. Garcia stopped walking and challenged respondent to shoot him. Respondent appeared to be afraid and backed away somewhat. Respondent\u2019s companions urged him to withdraw. Garcia\u2019s companions pulled Garcia away, and Garcia walked away from respondent. Garcia went home and later told his family what happened. Garcia\u2019s sister called the police.\nDuring cross-examination, respondent\u2019s attorney asked Garcia what gang he belonged to, and Garcia responded that he was not in a gang. Garcia testified that on the day of the incident he spoke to police officers. Also, Garcia testified that he spoke to Officer Mark Whaley the day after the incident. Respondent\u2019s attorney questioned Garcia extensively about what Garcia did after the incident and what he told the police. Respondent\u2019s attorney also asked about the gun and how Garcia knew that it was real.\nGarcia finished testifying, and the court ordered a short recess. When the trial resumed, respondent\u2019s attorney informed the court that a witness observed Garcia walk out of the courtroom and speak with the State\u2019s two remaining witnesses. Respondent\u2019s attorney requested that the court sanction the State by barring the testimony of the remaining witnesses. The prosecuting attorney asserted that a hearing would be necessary before the court could impose sanctions. The following exchange occurred:\n\u201c[Prosecuting Attorney]: *** I don\u2019t think sanctions would be appropriate. I don\u2019t believe those witnesses were advised *** of the motion to exclude. I am sorry, I did not do that.\nTHE COURT: I am sorry, I didn\u2019t admonish them. I didn\u2019t know who was out there.\u201d\nAfter another short recess, the prosecuting attorney stated that she did not agree with the allegations of respondent\u2019s attorney and related Officer Whaley\u2019s version of the alleged incident. The following exchange occurred:\n\u201cTHE COURT: Was [Garcia] admonished by your office not to discuss his testimony ***?\n[Prosecuting Attorney]: I didn\u2019t, and I apologize for that. *** I did tell the witnesses they could not be present in the room when they were testifying, but I did not talk to them in more detail about the fact that they could not.\u201d\nThe trial court stated that it would bar the remaining witnesses from testifying. The State requested a short continuance to consider whether it would appeal and to make an offer of proof regarding what occurred outside the courtroom. The court stated that an offer of proof was not necessary but granted a continuance.\nOn November 19, 1999, the State moved for reconsideration. On January 19, 2000, the trial court agreed with the State that a hearing was necessary to determine whether a violation of the court\u2019s order-excluding witnesses occurred and, if so, whether the violation prejudiced respondent.\nDuring the March 21, 2000, hearing, respondent called his mother, EH. She testified that, during the trial, she sat in the lobby outside the courtroom. Respondent\u2019s attorney instructed her to wait outside until he called her to testify and not to discuss anything that occurred inside the courtroom until the case concluded. EH. saw Garcia exit the courtroom and walk to a nearby room where a police officer and a young man were sitting. Garcia said to them, \u201cyou are not going to believe what they are saying.\u201d Garcia then informed them that he was asked about the shovel and identified it in court. Garcia related that respondent\u2019s attorney asked him if he was in a gang and asked about the gun. Garcia said that he denied that he was in a gang and testified that he saw respondent with the gun. The officer told Garcia and the young man not to worry and said that respondent \u201cwas going away for a long time.\u201d Immediately thereafter, respondent\u2019s attorney emerged from the courtroom, and EH. discussed the incident with him.\nThe State called Officer Whaley and Garcia. Whaley testified that, while Garcia testified, he and Brugger waited in a conference room near the courtroom. Whaley and Brugger discussed the events of April 11, 1999, and the initial investigation. Whaley mentioned that they would have to cease discussing the case once Garcia exited the courtroom after testifying. Garcia came to the conference room and breathed a sigh of relief. Because it appeared that Garcia was about to start discussing his testimony, Whaley instructed Garcia not to say anything. Garcia did not discuss any of his testimony. Whaley then saw respondent\u2019s attorney exit the courtroom and heard EH. inform respondent\u2019s attorney that Garcia was discussing his testimony.\nGarcia testified that, after he finished testifying during the trial, he left the courtroom and walked to the conference room where Whaley and Brugger were sitting. Garcia was about to \u201cexpress [his] frustration,\u201d but Whaley immediately stopped him and explained that Garcia was not allowed to discuss the testimony. Garcia did not tell Whaley or Brugger about any of his testimony or the questions he was asked and, since the trial, has not discussed the case with them.\nThe trial court believed EH. and found that Garcia violated the court\u2019s order. The hearing proceeded to the second phase, and the State called Officer Michael Kozenczak and Officer Whaley.\nKozenczak testified that, on April 11, 1999, he was dispatched to Garcia\u2019s home. In each other\u2019s presence, Garcia and Brugger told Kozenczak that they encountered a person who brandished a shovel and later a gun. Kozenczak recounted the story to Whaley, who prepared the report.\nWhaley testified that he and another officer went to Garcia\u2019s home on April 12, 1999. Garcia told Whaley that a person with whom Garcia was having an altercation brandished a shovel, disappeared, and then came back with a small pistol. The person cocked the weapon and pointed it at Garcia. Also on April 12, 1999, Whaley and the other officer went to Brugger\u2019s home. Brugger also stated that a person with a shovel disappeared and came back with a gun. Whaley described the information he obtained on April 12, 1999, as much more detailed than the information he obtained from Kozenczak the previous day. Also, Whaley admitted that he included in his report a statement that he did not make an arrest at that time because of inconsistencies in the complainant\u2019s story.\nOn April 15, 1999, Whaley interviewed respondent at the police department. Respondent stated that he was involved in an altercation with Garcia. Because he knew Garcia to be a good fighter, respondent ran to a friend\u2019s car around the corner and retrieved a gun. Respondent unloaded the gun because he did not want to hurt anyone. He returned to the scene of the altercation, pointed the gun off to the side, and cocked it. Respondent denied pointing the gun at Garcia. Whaley showed respondent a gun that the police recovered in connection with the investigation, and respondent identified it as the gun he had on the day of the altercation. Whaley never asked respondent about a shovel. Whaley prepared, and respondent signed, a statement.\nThe trial court took the prejudice issue under advisement and, on April 19, 2000, denied the State\u2019s motion to reconsider. The court did not explain its findings other than to state that \u201cthe order barring the witnesses will remain in full force and effect, particularly, since the passage of time, the two witnesses *** would have had a great opportunity to discuss their testimony.\u201d The State filed a certificate of impairment and timely appealed.\nAlthough there is no statute or supreme court rule that mandates that witnesses be excluded from the courtroom during a trial, it is well settled that the trial court possesses the discretion to do so. Smith v. City of Chicago, 299 Ill. App. 3d 1048, 1053 (1998). Excluding witnesses is an appropriate device to preclude a witness from shaping his testimony to conform to the testimony of those who already have testified. Skelton v. Chicago Transit Authority, 214 Ill. App. 3d 554, 584 (1991). If a trial court possesses the authority to exclude witnesses to prevent fabrication, it necessarily follows that the court also possesses the authority to instruct witnesses not to discuss their testimony with other witnesses. Smith, 299 Ill. App. 3d at 1053.\nA violation of a court order excluding witnesses or prohibiting witnesses from discussing their testimony does not result in the automatic exclusion of a witness\u2019s testimony. People v. Wiatr, 119 Ill. App. 3d 468, 473 (1983). Instead, the trial court possesses the discretion to determine whether excluding a witness\u2019s testimony is appropriate, and we may not overturn that decision absent a clear abuse of discretion. People v. Trask, 167 Ill. App. 3d 694, 706 (1988). The dominant inquiry is whether the inclusion or exclusion of the testimony would prejudice the affected party. Wiatr, 119 Ill. App. 3d at 474. Also, where a trial court refuses to allow a witness to testify, the affected party must demonstrate that it was deprived of material testimony without its fault. Wiatr, 119 Ill. App. 3d at 474. The rationale underlying these rules is that the court should not punish a party by depriving it of testimony material to its case where, without the party\u2019s knowledge or fault, a witness violates a court order. People v. Johnson, 47 Ill. App. 3d 362, 369 (1977).\nThe State argues that the trial court abused its discretion because the scope of the order excluding witnesses was not clear. Also, the State contends that, even if the trial court properly found that the witnesses violated the order, the sanction for the violation was inappropriate because there was no evidence that allowing the two remaining State witnesses to testify would have prejudiced respondent.\nWe agree with the State that, because the scope of the trial court\u2019s order excluding witnesses was not clear, the trial court\u2019s ruling deprived an innocent party of material testimony. When a trial court determines that it is necessary to prohibit conduct that is not otherwise proscribed by statute or rule, it is imperative that the court\u2019s order be clear and that all concerned parties have an accurate understanding of its limitations. Smith, 299 Ill. App. 3d at 1054. If the trial court\u2019s order is unclear, any sanction entered for a perceived violation is an abuse of discretion and subject to reversal. Smith, 299 Ill. App. 3d at 1054; see also J. Corkery, Illinois Civil & Criminal Evidence \u00a7 615.101, at 868 (2000).\nIn Smith, the parties did not request, and the trial court did not order, that witnesses be excluded from the courtroom. Of the first five plaintiffs witnesses that testified, the trial court instructed only the first, second, and fifth witnesses not to discuss their testimony. Next, the plaintiffs expert testified. During the expert\u2019s testimony, it became apparent that the expert knew about the testimony of the third and fifth witnesses. When the trial court discovered that the plaintiffs attorney informed the expert of the substance of those witnesses\u2019 testimony, it directed a verdict for the defendants. Smith, 299 Ill. App. 3d at 1050-51.\nOn appeal, the court stated:\n\u201cWhile it might be argued that the plaintiff\u2019s attorney should have understood that informing [the expert witness] of the substance of [the fifth witness\u2019s] testimony violated the court\u2019s admonition to that witness, the same cannot be said of his comments concerning the testimony of [the third witness.] *** Directing a verdict in this case as a sanction for the behavior of counsel which, in significant part, violated no clear and concise order constituted an abuse of discretion and must be reversed.\u201d Smith, 299 Ill. App. 3d at 1054.\nHere, the trial court\u2019s order was less explicit than the orders in Smith. Although the court excluded the witnesses from the courtroom, it never ordered Garcia, the attorneys, or anyone else not to discuss the trial testimony. Accordingly, Garcia was not aware of the supposed prohibition at the time he had the conversation with the other two witnesses. Therefore, the trial court sanctioned the State for the conduct of a witness that violated no clear order.\nRespondent argues that the State is at fault for failing to admonish and control its witnesses. This contention fails to address the lack of a clear order prohibiting the witnesses from discussing their testimony. Although such an order may be implied from the trial court\u2019s order excluding the witnesses, a drastic sanction such as barring the testimony of key witnesses should not be based on the violation of an implied order. As the events of this case reveal, that witnesses should not discuss their testimony until the conclusion of the trial is perceived as a general and established rule. The fact remains, however, that there is no codified rule prohibiting witnesses from discussing their testimony, and the trial court entered no order to that effect.\nWe also conclude that, even if Garcia had violated a clear order not to discuss his testimony, the trial court\u2019s sanction was unduly harsh. There is no evidence that respondent would suffer prejudice if the remaining two State witnesses were allowed to testify. Garcia told Whaley and Brugger about only three discrete aspects of his testimony: the shovel, the gun, and whether Garcia was in a gang. Both Garcia and Brugger told Officers Kozenczak and Whaley that they saw the suspect with a shovel and that the suspect disappeared and returned with a gun. Respondent\u2019s statement to Whaley corroborated the accounts of the gun. The question about gangs would have no bearing on anything about which Whaley or Brugger might testify.\nIn light of what Whaley and Brugger already knew about the incident and what the offer of proof revealed about Whaley\u2019s and Brugger\u2019s potential testimony, it is difficult to see how their testimony would be \u201caffected by familiarity with\u201d the limited aspects of Garcia\u2019s testimony. Trask, 167 Ill. App. 3d at 706. Garcia provided the other witnesses with essentially innocuous information that would not create an opportunity for Whaley or Brugger to shape his testimony to conform to Garcia\u2019s. See People v. Young, 187 Ill. App. 3d 977, 983 (1989) (defendant plainly was not prejudiced by trial court\u2019s decision to allow testimony of witness who heard small portion of previous witness\u2019s testimony where witness heard previous witness testify only about incidental facts and witness plainly gave his own account of the events in question). Under these circumstances, a more appropriate remedy may have been for the trial court to allow the witnesses to testify and consider the conversation when evaluating the witnesses\u2019 credibility. See Trask, 167 Ill. App. 3d at 706.\nRespondent points to the reference in Whaley\u2019s report to inconsistencies and asserts that \u201c[a]n investigation already plagued with inconsistencies and ripe for proper cross examination and impeachment regarding those inconsistencies was now allowed to be synchronized by the testifying witness discussing the case with those not yet testifying.\u201d The record does not support this claim of prejudice. The testimony at the hearing revealed that all parties, including respondent, gave generally consistent accounts of the incident and that Garcia\u2019s limited discussion of his testimony would add nothing to allow the witnesses to synchronize their testimony.\nThe trial court made no explicit findings regarding prejudice. Instead, it commented about the opportunity the witnesses had to discuss their testimony between the trial and the hearing. We do not believe that this is an adequate basis for barring the witnesses here. Because the only testimony on the issue was Garcia\u2019s statement that, since the trial, he had not discussed the case with Whaley or Brugger, the trial court\u2019s concern about additional violations is based on mere speculation.\nBecause Garcia violated no clear order prohibiting him from discussing his testimony and because, even if a violation occurred, respondent would suffer no prejudice as a result, the trial court abused its discretion when it barred the testimony of the State\u2019s remaining witnesses.\nAccordingly, we reverse the judgment of the circuit court of Du Page County and remand the cause for further proceedings.\nReversed and remanded.\nHUTCHINSON, EJ., and GEOMETER, J., concur.", "type": "majority", "author": "JUSTICE RAPP" } ], "attorneys": [ "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Margaret M. Healy and Karen Orton, Assistant State\u2019s Attorneys, and Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Mary Ellen Dienes, of Des Plaines, for the People.", "Brian K. Stevens, of Stevens & Associates, of St. Charles, for appellee." ], "corrections": "", "head_matter": "In re H.S.H., a Minor (The People of the State of Illinois, Petitioner-Appellant, v. H.S.H., Respondent-Appellee).\nSecond District\nNo. 2 \u2014 00\u20140548\nOpinion filed June 20, 2001.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Margaret M. Healy and Karen Orton, Assistant State\u2019s Attorneys, and Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Mary Ellen Dienes, of Des Plaines, for the People.\nBrian K. Stevens, of Stevens & Associates, of St. Charles, for appellee." }, "file_name": "0892-01", "first_page_order": 910, "last_page_order": 917 }