People v. Alfano

Decision Date22 February 1980
Docket NumberNo. 52471,52471
Citation401 N.E.2d 554,78 Ill.2d 434
CourtIllinois Supreme Court
Parties, 36 Ill.Dec. 713 The PEOPLE of the State of Illinois, Appellant, v. Charles A. ALFANO, Appellee.

William J. Scott, Atty. Gen., Chicago, and Dennis P. Ryan, State's Atty., Waukegan (Donald B. MacKay and Melbourne Noel, Asst. Attys. Gen., Chicago and Marc P. Seidler and Raymond McKoski, Asst. State's Attys., Waukegan, of counsel), for the People.

Charles J. O'Laughlin, Michael J. Rovell, and Kathleen J. Purcell, all of Jenner & Block, Chicago, for appellee.

WARD, Justice:

In this case, which is a sequel to People ex rel. Illinois Judicial Inquiry Board v. Hartel (1978), 72 Ill.2d 225, 20 Ill.Dec. 592, 380 N.E.2d 801 (referred to herein as Alfano I ), the State appealed to the appellate court from a judgment of the circuit court of Lake County purporting to acquit the defendant, Charles A. Alfano, an associate judge of the circuit court of Cook County, after a bench trial on charges that he had committed battery and obstructed a police officer in the performance of his duties, both of which offenses are misdemeanors under the Criminal Code of 1961 (Ill.Rev.Stat.1977, ch. 38, pars. 12-3, 31-1). We granted a motion by the State for a direct appeal to this court under Rule 302(b). A motion by the Illinois Judicial Inquiry Board (the Board) for leave to file a brief amicus curiae was denied. In its order allowing a direct appeal this court directed the parties to address the question of appealability.

The judgment of the trial court followed rulings in which the court struck the testimony of the witnesses for the State. The defendant contends that the judgment is not appealable in view of article VI, section 6, of the 1970 Illinois Constitution, which provides: "(a)fter a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal." The determination of appealability depends in part upon how the judgment below is characterized, so that the question of appealability is closely intertwined with the consideration of the merits, and a somewhat detailed account of the proceedings thus becomes necessary in order to understand fully the issues which are before us.

The offenses with which the defendant was charged took place on September 5, 1977, while Richard M. Whitmore, a detective with the Lake County sheriff's office, was serving the defendant's son and another juvenile with traffic citations in response to a complaint from neighbors about their riding of motorcycles. Whitmore was sitting in his car at the time, and the defendant allegedly reached in and struck him on the arm. It was also charged that after the altercation with Whitmore the defendant tried unsuccessfully to persuade Whitmore not to arrest him. Whitmore swore out a complaint, and the defendant was arrested that same day.

The incident took place in a subdivision near the defendant's summer home in the vicinity of Antioch, and it attracted the attention of a number of nearby residents, some of whom witnessed it. Shortly after the defendant's arrest, independent investigations into the incident were begun by the sheriff's office, by counsel retained by the defendant, and by personnel from the Board.

On October 4 the trial court granted a motion by the defendant that the State be directed to furnish the names of persons whom it intended to call as witnesses at the trial. In response to this request the State furnished a list of 14 persons, which included Officer Whitmore, a second officer named James H. Donaldson, and Philip and Rosebud Sunich, private citizens who had been eyewitnesses. The State also furnished various police reports of the incident. No question is raised here as to this pretrial discovery.

On November 30 the defendant filed a motion requesting that the Board be required to produce its files relating to the incident, and he also served a subpoena duces tecum on the Board's chairman. On December 14 the court denied the Board's motion to quash the subpoena, and issued an order that the Board produce at the time of trial "(a)ll written statements, and oral statements reduced to writing which are verbatim or substantially verbatim made by any person named on the state's list of witnesses." The order also provided: "The statements of any witness who testifies at the trial shall be made available to the defense upon the conclusion of the witnesses' direct testimony for the use of the defendant for impeachment purposes, if any."

The order required the Board to produce for inspection by the court "all evidence obtained by the Board during the Board's investigation of the conduct of the defendant in its investigation of the incident leading to the criminal charge before the court." The order continued "the court shall examine the evidence (and) it shall, excluding any work products and excluding the disclosure of any informant whose identity is a prosecution secret, deliver to the defendant any evidence which tends to negate the defendant's guilt or which is of an exculpatory nature."

It was at this juncture that the Board instituted the proceedings in Alfano I, in which this court awarded a writ of mandamus directing the trial judge to expunge his order of December 14.

After this case had resumed in the trial court and the trial judge had expunged his order, the defendant served a new subpoena upon the Board. This second subpoena was drawn more narrowly than its predecessor. It called for materials which fell into three categories, the first of which was designed to comply with the "plurality opinion" in Alfano I:

1. All documents and memoranda which plainly negate the defendant's guilt.

2. All documents or memoranda which contain statements that are inconsistent with, or contrary to the statements given to the police or the State's Attorney's investigators which are attached to the subpoena as exhibit 1. (Exhibit 1 contained 48 pages of reports on interviews with witnesses.)

3. All documents or memoranda which contain statements that are inconsistent with, or contrary to statements given to the Board by 21 named individuals, including Officer Whitmore and Philip and Rosebud Sunich, each of whom was included in the amended list of intended witnesses which the State had given to the defendant. (A second officer, James H. Donaldson, had also been included in the State's list of intended witnesses, but his name did not appear in the subpoena.)

It will be noted that the subpoena did not in terms call for the production of statements made to the Board or to its investigators, although the subpoena is structured in such a way that some statements of that character would be called for.

On May 4, 1979, the Board filed a motion to quash the subpoena except as to documents which on their face plainly negated the defendant's guilt. In its motion the Board also represented that it had reviewed all the material in its possession called for by the subpoena, and had determined that none of it "on its face plainly negates the guilt of defendant" or "would undermine substantially the credibility of any of the persons referred to in the subpoena duces tecum on the basis of the statements of such persons contained in exhibit 1."

The trial judge entered an order quashing the subpoena except for documents which on their face plainly negated the defendant's guilt, and ordered the Board to produce all documents of the latter character. The State represents in its brief and the Board has admitted that it did produce for the defendant certain exculpatory statements which it had obtained from "defendant's own witnesses." None of the material was given to the State, and the defendant has not informed us of its contents.

The case came on for trial on August 6, 1979. The defendant waived a jury, and the State called as its first witness Officer Whitmore. No objection to his testimony was made by the defendant at the outset, but at the start of cross-examination Whitmore was asked whether he had been interrogated by an investigator for the Board. Whitmore answered in the affirmative. Asked if he "had a copy of his statement," the witness stated that he did not. The defendant's counsel then asked the State's Attorney for a copy of the statement, and the latter stated that he had no copies of any statements given to the Board. The defendant then moved that Whitmore's entire testimony be stricken, and the court granted the motion.

The remarks of the trial judge which appear in the report of proceedings show that the basis of his ruling lay in what he regarded as a dilemma created by the decision in Alfano I in that the Board was not required to produce any statements other than those which plainly negated the defendant's guilt, and that the Board itself was given the sole power to determine what statements would meet that test. Those limitations, in the view of the trial judge, conflicted with the defendant's right to effective cross-examination and thus with his right to due process, a view which has been repeatedly expressed by this court. See, e. g., People v. Moses (1957), 11 Ill.2d 84, 89, 142 N.E.2d 1; People v. Johnson (1964), 31 Ill.2d 602, 203 N.E.2d 399; People v. Cagle (1969), 41 Ill.2d 528, 531-35, 244 N.E.2d 200; People v. Nichols (1976), 63 Ill.2d 443, 349 N.E.2d 40; cf. People v. Tate (1976), 63 Ill.2d 105, 112, 345 N.E.2d 480; People v. Szabo (1977), 55 Ill.App.3d 866, 870-71, 13 Ill.Dec. 422, 371 N.E.2d 117. See also the committee comments to Rule 412(c) (73 Ill.2d R. 412(c)).

With respect to statements which might be used to impeach a witness, the trial court was not aided by the representation which the Board had made in its motion to quash that no statement made to the Board would undermine the testimony of persons who had already given inconsistent statements to the police.

The question, however, is whether any prior statements given to the Board by a witness were inconsistent with his trial...

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5 cases
  • People v. Flatt
    • United States
    • Supreme Court of Illinois
    • October 17, 1980
    ...was neither obtained in an illegal search and seizure nor elicited in an involuntary confession. Citing People v. Alfano (1980), 78 Ill.2d 434, 36 Ill.Dec. 713, 401 N.E.2d 554, defendant argues in the alternative that the order was not an order of suppression since the evidence was not obta......
  • People v. Montgomery
    • United States
    • United States Appellate Court of Illinois
    • May 27, 1980
    ......1971), 133 Ill.App.2d 795, 270 N.E.2d 861, and People v. Koch (4th Dist. 1973), 15 Ill.App.3d 386, 304 N.E.2d 482, and stated that a motion to suppress was appropriate only where it was claimed that the evidence was illegally obtained. (63 Ill.2d at 367-68; see also People v. Alfano (1980), 78 Ill.2d 434, 444, 36 Ill.Dec. 705, 401 N.E.2d 554.) Its rule, the court stated, was not intended to give the state the right to an interlocutory appeal from every ruling excluding evidence offered by it.         The fourth district of this court in both Thady and Koch dismissed ......
  • People v. Bradley
    • United States
    • United States Appellate Court of Illinois
    • November 27, 1984
    ...witness was sworn and the court began to hear evidence during the bench trial below, jeopardy attached. (People v. Alfano (1980), 78 Ill.2d 434, 446, 36 Ill.Dec. 713, 401 N.E.2d 554.) Defendant did not, at any point thereafter, deliberately choose to forego her right to have her guilt or in......
  • Walker v. Alton Memorial Hospital Ass'n
    • United States
    • United States Appellate Court of Illinois
    • November 26, 1980
    ......        We find nothing in People ex rel. Judicial Inquiry Board v. Hartel (1978), 72 Ill.2d 225, 20 Ill.Dec. 592, 380 N.E.2d 801 (Alfano I) or People v. Alfano (1980), 78 Ill.2d 434, ......
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