People v. Lipp

• Decision Date: 30 August 1978
• Docket Number: No. 77-1566,77-1566
• Citation: 63 Ill.App.3d 1034,20 Ill.Dec. 798,380 N.E.2d 1007
• Parties: , 20 Ill.Dec. 798 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Robert LIPP, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1007

380 N.E.2d 1007

63 Ill.App.3d 1034, 20 Ill.Dec. 798

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Robert LIPP, Defendant-Appellee.

No. 77-1566.

Appellate Court of Illinois, First District, Third Division.

Aug. 30, 1978.

Bernard Carey, State's Atty., Lee T. Hettinger, Michael E. Shabat, Asst. State's Attys., for plaintiff-appellant.

Lee H. Tockman, Chicago, for defendant-appellee.

McGILLICUDDY, Justice:

The defendant, Robert Lipp, was charged in separate complaints with battery of Raymond Gora, Amelia Gora and Nancy Gora. (Ill.Rev.Stat., 1975, ch. 38, par. 12-3.) The defendant made a motion for a mistrial and a motion to dismiss the complaints with prejudice based on the refusal of the State to comply with a subpoena directed to the custodian of records of the Chicago Police Department. At the time that these motions were made, eight jurors had been selected. The trial court granted both motions. The State has appealed pursuant to Supreme Court Rule 604(a)(1) contending that the dismissal was improper because the material the State withheld was not discoverable in a misdemeanor case either by a motion for discovery or by the issuance of a subpoena. Ill.Rev.Stat., 1977, ch. 110A, par. 604(a)(1).

The complaints against the defendant were filed on October 12, 1976. A subpoena Duces tecum, which is contained in the record, directed the custodian of the records of the Chicago Police Department to appear at a specified time and location to testify; he was also to bring any written matters relating to an incident occurring on October 11, 1976, at approximately 2:30 p. m., at 3945 North Natchez, Chicago, Illinois, which involved the defendant and the complainants.

The assistant State's attorney contended that the subpoena was invalid because it sought matters which were not subject to discovery. He stated that when a subpoena is issued for police records, the police department delivers the records to the State's attorney's office. The police department had delivered to the State's attorney's office one document entitled "Radio Dispatch Card-Radio Complaint/Chicago Police Communications Center." This document, a copy of which is contained in the record, shows the location of the incident (3945 North Natchez), the unit assigned, the nature of the complaint-service ("Info. for Police") and is stamped 15 17 and 15 37, October 11, 1976. The card also contains numerical information concerning the patrol beat of the occurrence, the dispatcher zone, the number arrested (none) and the complainant-requester (Lipp). During the argument the defendant claimed that the phone call which the police dispatcher reported was made by the defendant or his wife. The defendant had made an oral, but no written motion for a pretrial discovery and claimed the document was material because a defendant who calls the police is different from one who does not and wants to get away. The defendant also maintained the document could be used for impeachment if one of the victims claimed to have called the police.

The trial court ruled the subpoena was valid, but the assistant State's attorney refused to turn the document over stating he wished to obtain appellate review concerning whether such a document was discoverable in a misdemeanor case. Although it was recognized that contempt proceedings might be an appropriate method of testing the subpoena, the State said it feared that jeopardy had already attached since two four-member panels of jurors had been selected. (See, Ill.Rev.Stat., 1977, ch. 38, par. 3-4(a)(3).) Following a recess and further argument, but before further jurors were accepted, the defendant moved for a mistrial and for a dismissal of the charges with prejudice; the trial court granted these motions.

The grounds upon which the trial court may dismiss a charge are enumerated in subsections 1 through 10 of section 114-1(a) of the Code of Criminal Procedure. (Ill.Rev.Stat., 1977, ch. 38, par. 114-1(a)(1)-(10).) It is apparent that the trial court's dismissal of the complaints because of the State's failure to comply with the subpoena is not one of the grounds set forth in section 114-1(a).

In addition to the grounds for dismissal stated in section 114-1(a), the Supreme Court in People v. Lawson (1977), 67 Ill.2d 449, 10 Ill.Dec. 478, 367 N.E.2d 1244, held that a trial court had the inherent authority to dismiss an indictment where there had been a denial of due process, even though this basis was not a ground specifically enumerated by statute. The Supreme Court explained that a trial court is obligated to ensure a defendant a fair trial, and it may impose sanctions, including dismissal of the case, for that purpose. However, the court in Lawson cautioned that a trial court should...