Lead Opinion
delivered the opinion of the court:
Following a bench trial in the circuit court of Kendall County at which defendant, Ronnell R. Banks, was convicted of driving under the influence of alcohol (DUI) (625 ILCS 5/11 — 501(a)(2) (West 2004)) and driving while his license was suspended (625 ILCS 5/6 — 303 (West 2004)), defendant appeals. On appeal, defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt of driving while his license was suspended, because there was no evidence that his license was actually suspended on the date of the purported offense. Defendant also contends that the fact that a videotape of the traffic stop was lost renders the record insufficient for appellate review and thereby deprives him of his constitutional right to a direct appeal. Finally, defendant asserts that the evidence was insufficient to prove him guilty of DUI. We reject defendant’s contentions and affirm.
I. BACKGROUND
We summarize the pertinent facts. On February 1, 2005, a bench trial commenced. A verbatim transcript of the testimony rendered during trial was not prepared. Instead, for purposes of appeal, the parties prepared an agreed statement of facts and attached police reports prepared by Sergeant Terry Klingel of the Yorkville police department and Deputy John Collins of the Kendall County sheriffs department. The parties indicated that the police officers testified consistently with their narrative reports. Additionally, Deputy Mitch Hattan of the Kendall County sheriffs department testified similarly to Klingel and Collins. The following recitation is taken from the police reports attached to the agreed statement of facts. We note that absent from the agreed statement of facts is any indication that defendant objected to the hearsay testimony regarding defendant’s suspended license, which was admitted into evidence instead of a certified driver’s abstract. Also absent is any best-evidence objection.
Klingel related that, at about 11:30 p.m., on Friday, September 17, 2004, he was dispatched to the area of Route 126 and Hinkler Road. There, he observed a red Chevrolet sport utility vehicle (SUV), registered to defendant, with its hazard lights activated. As Klingel approached the vehicle, he observed defendant exit the passenger side of the SUV Klingel observed that defendant was staggering as he exited the vehicle. Klingel asked defendant if he was okay. Defendant responded that he was fine, but Klingel noted that defendant’s speech was “slurred” and “thick-tongued.” Klingel also noticed that an odor of an alcoholic beverage was emanating from defendant’s face and mouth. Klingel asked if defendant had been drinking that night and defendant stated, in slurred speech, that he had. Klingel asked defendant if he had been driving. Defendant informed Klingel that he had been driving and drinking, but did not want to drive anymore, so he pulled onto the side of the road. As Klingel was speaking to defendant, he noticed a beer bottle protruding from a paper bag that was lying on the floor of the front passenger side of the vehicle. Klingel, who was outside of his jurisdiction, called for a Kendall County sheriffs deputy.
Collins reported that, upon arriving at the scene, Klingel related that defendant appeared to be intoxicated and had admitted that he had been drinking alcohol, and Klingel reported that he had observed a bottle of beer in a paper bag under defendant’s feet. Collins related that Klingel had learned defendant’s name, and Collins noted in his narrative report that defendant’s “driver’s license status was that of suspended as of 10/01 for [a previous conviction of] driving under the influence [(625 ILCS 5/]ll — 501(a)(2) [(West 2004))].”
Collins related that, when he asked defendant to roll down the passenger window, defendant appeared to have trouble doing so. Collins opened the passenger door for defendant and noticed the odor of alcohol coming from the car. Collins noticed that defendant was disheveled and had glassy, bloodshot eyes. Collins observed a bottle of beer inside a paper bag on the passenger-side floor of the car.
Collins related that defendant said that he ran out of gas and would need help. Collins asked defendant where he was coming from and defendant stuttered and appeared to be confused as he answered. Defendant pointed and appeared to have trouble formulating his answer. Defendant stuttered and told Collins that his wife did not want him to return home. Defendant told Collins that, when he arrived at home, his wife told him to leave and he did so.
Collins related further details about the encounter, in which defendant appeared to be confused and contradicted himself. For example, defendant claimed to be heading toward Aurora, but he was not headed in the direction toward Aurora when he was found by police. Additionally, defendant claimed to have obtained food from a Portillo’s restaurant, but instead had food wrapped in McDonald’s packaging in his car. Defendant also told Collins repeatedly that he had not been drinking alcohol, which contradicted what he told Klingel.
Collins asked defendant to get out of the car and to come to the rear of his vehicle. Collins smelled a strong alcoholic odor coming from defendant. Collins again asked defendant if he had consumed any alcohol, and defendant replied that he had “had one beer.” Defendant refused to take a field sobriety test. Collins then arrested defendant. Collins’ search of defendant’s car uncovered four unopened bottles of beer, two opened bottles of beer with very little beer remaining, and one opened can of beer with a small amount of beer remaining. Defendant was transported to the county jail and charged with, among other things, DUI and driving while his license was suspended. The beer containers were placed into evidence as well as a videotape of the encounter recorded from Collins’ dashboard video camera.
Also attached to the agreed statement of facts was Collins’ “Law Enforcement Sworn Report” (sworn report). The report contained check boxes to indicate whether defendant surrendered his driver’s license. The “No” box was checked, and Collins recorded that defendant did not surrender his license at the time of the encounter because his “driver[’]s license [was] suspended.”
During the encounter, Collins requested that a deputy be dispatched to defendant’s home to make sure that no violence had occurred between defendant and his wife. Hattan responded to the call. Hattan learned from defendant’s wife that defendant had come home drunk and that she told him to leave.
A dashboard videotape of the encounter with defendant was displayed to the trial court. According to the agreed statement of facts, the videotape displays “a portion of the events testified to by Deputy Collins and Sergeant Klingel.”
Defendant did not testify at trial. No other evidence was offered on his behalf. The trial court noted that, following “presentation of testimony & video,” it found defendant guilty of both charges. For the DUI conviction, defendant was sentenced to a 364-day term of imprisonment, and for the conviction of driving while his license was suspended, defendant was sentenced to a 24-month term of probation. In addition, defendant was assessed fines and costs totaling $750 and required to undergo a level III alcohol treatment program, which was modifiable based upon defendant’s evaluation. Defendant’s posttrial motions were denied, and defendant timely appeals. At some point while the appeal was pending, the parties discovered that the videotape of the traffic stop and arrest was no longer in the possession of either the circuit court clerk, the State’s Attorney, or the public defender. Included in the record on appeal is an affidavit acknowledging that none of those parties had or were able to locate a copy of the videotape of defendant’s traffic stop and arrest.
II. ANALYSIS
On appeal, defendant challenges the sufficiency of the evidence of his convictions of driving while his license was suspended and DUI. Defendant also contends that the loss of the videotape of his traffic stop and arrest makes the record insufficiently complete for review and thereby deprives him of his right to appeal his conviction of DUI.
A. Sufficiency of Evidence to Sustain Conviction of Driving While His License Was Suspended
Defendant’s initial argument on appeal is that the evidence is insufficient to prove that his license was suspended on the date of the traffic stop. Defendant points to a phrase in Collins’ narrative report that related that defendant’s “driver’s license status was that of suspended as of 10/01 for [a previous conviction of] driving under the influence [(625 ILCS 5/] 11 — 501(a)(2) [(West 2004))].” Defendant contends that this is ambiguous and could mean that defendant’s license was due to be suspended October 1, about two weeks after the date of the traffic stop at issue here, or was suspended in October 2001, three years before the stop. Defendant also notes that there is no driver’s abstract or other documentary evidence in the record to show that defendant’s license was suspended on September 17, 2004, the date of the stop. However, defendant did not argue the best-evidence rule or inadmissible hearsay below or in this court. Defendant concludes that the evidence was insufficient to support his conviction of driving while his license was suspended. We disagree.
When a defendant challenges the sufficiency of the evidence, the relevant question for the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt. People v. Berrier,
Often, a circuit court will not have a court reporter present during a trial on a traffic or misdemeanor offense. People v. Malley,
With these principles in mind, we turn to defendant’s argument that the evidence in the record was insufficient to show that his license was suspended on September 17, 2004. Specifically, defendant contends that the record does not contain direct evidence proving that his license was suspended on that date. We disagree with defendant’s contention. First, we note that there were no objections to hearsay evidence. It is well established that when hearsay evidence is admitted without an objection, it is to be considered and given its natural and probative effect. People v. Akis,
B. Contentions Arising From DUI Conviction
Next, defendant makes a dual contention. First, defendant argues that the omission of the videotape from the record on appeal precludes effective review because the videotape was displayed for the trier of fact. Defendant also argues that the evidence was insufficient to prove his guilt of DUI beyond a reasonable doubt. We will address each contention in turn.
1. Reviewability of record
Defendant begins his analysis by arguing that the State has an obligation to provide a record of sufficient completeness to permit appellate review, citing Luke,
Having determined that a defendant must provide a sufficiently complete record on appeal, we review the applicable principles. In order to raise an appeal, the defendant must present a record of sufficient completeness to permit proper consideration of the defendant’s specific claims of error. People v. Hopping,
In People v. Stark,
In People v. Ramos,
In People v. Seals,
In Stark, Ramos, and Seals, both elements were present: the defendant’s lack of fault and the materiality of the missing evidence or portion of the record to the court’s review. Defendant, by contrast, suggests that a per se rule should obtain: If evidence presented at trial is missing from the record on appeal, then the record is not sufficiently complete for appellate review. Our analysis of the law in Illinois belies this per se rule. We therefore turn to other jurisdictions to attempt to discern the roots of defendant’s per se rule.
The principles present in Illinois law, materiality of the missing evidence and lack of fault in causing the omission, have been adopted in a number of other jurisdictions. See Chadwick v. State,
There does not appear to be a uniform national standard regarding how to apportion the burden to provide a sufficiently complete appellate record. For example, some jurisdictions seem to have a no-fault rule: anytime the record on appeal is not sufficiently complete, the defendant will receive relief. See Wilson v. State,
From our examination of cases in Illinois, as well as those in other jurisdictions that follow similar principles, we conclude that the rule described in Hopping provides the general statement of the law in Illinois: the defendant is obligated to provide a sufficiently complete record for appellate review. Hopping,
We note that, from Stark, Ramos, and Seals, defendant draws the proposition that an incomplete record on appeal requires that the defendant be granted a new trial. This argument is flawed, however, because defendant neglects the necessary steps that must be fulfilled before the relief of a new trial can be granted. As noted immediately above, the defendant must show both that the missing part of the record is necessary for effective appellate review and that the defendant is not at fault for the fact that the record is incomplete. As we discuss, defendant has fulfilled neither requirement.
Defendant essentially asserts that the loss of the videotape alone, with no other showing, renders the record incomplete for meaningful review on appeal and entitles him to a new trial. This, as we have demonstrated, is the law neither in Illinois nor even in those states that place the burden of producing the record on appeal on the State or the trial court. In all instances, the defendant must establish that the missing portion of the record is essential for appellate review. See, e.g., People v. Majka,
Defendant does not argue that there is a colorable need for the videotape. Defendant fails to articulate what the videotape would show. Defendant further fails to suggest that the videotape was exculpatory or contradictory of any other evidence presented at trial. Defendant argues only that the videotape is missing. This is an insufficient demonstration of a colorable need.
Defendant attempts to avoid the necessity of demonstrating a colorable need for the missing videotape by arguing that there is no acceptable substitute for it in reviewing the issue of the sufficiency of the evidence of defendant’s guilt. Regardless of the validity of that view, defendant could have established a colorable need. Had there been anything depicted on the videotape that was inconsistent with Collins’ and Klingel’s testimony, defendant could have amended or supplemented the agreed statement of facts.
Defendant also could have established a colorable need by pointing to argument of counsel or comments by the trial court about the videotape. See, e.g., People v. Appelgren,
Defendant argues only that the absence of the videotape renders the record insufficient for purposes of appellate review. As we have noted, this is neither the standard nor a sufficient demonstration of colorable need. Because defendant has not made even a prima facie showing that the absence of the videotape impairs our review of the record on appeal, we conclude that the record as it now stands is sufficient for review. The fact that defendant does not argue that the videotape was even in the least bit exculpatory or inconsistent with any of the police testimony presented at trial leads us to conclude that it is not material to the points he raises on appeal.
Likewise, defendant makes no argument that the incomplete record was not due to his fault in assembling the record on appeal. Without such a contention, defendant cannot satisfy the lack-of-fault element of the Hopping-Stark-Ramos-Seals line of cases. We note that the loss of the videotape was confirmed at least five weeks in advance of the due date of defendant’s brief on appeal and about five months before the matter was ready to be placed before this court for decision. There was ample time for defendant to correct the agreed statement of facts to reflect any inconsistencies between the videotape and the officers’ testimony. Defendant has not demonstrated, even cursorily, that the record on appeal is insufficient for our review. Accordingly, we conclude that we may review the record on appeal as it stands before us.
2. Sufficiency of evidence supporting DUI conviction
Defendant also explicitly argues that the evidence was insufficient to prove his guilt of DUI beyond a reasonable doubt. We disagree.
Our analysis above has demonstrated that defendant has failed to establish that the videotape is essential to the issue of sufficiency of the evidence or to any other of defendant’s contentions. Accordingly, we will examine the record as it stands before us to determine whether any reasonable trier of fact could have found defendant guilty of DUI beyond a reasonable doubt. Berrier,
The police reports attached to the agreed statement of facts indicate that defendant mumbled, stuttered, spoke incoherently, was confused as to his whereabouts, was confused as to where he was going, smelled strongly of alcohol, and staggered when he attempted to walk. In addition, defendant’s eyes were glassy and bloodshot, and defendant was disheveled. Defendant also refused to take a field sobriety test. We hold that this evidence was manifestly sufficient to allow the court to find defendant guilty of the offense of DUI beyond a reasonable doubt. Accordingly, we reject defendant’s explicit contention that the evidence was insufficient to support his DUI conviction.
Before concluding, we respond to the special concurrence’s more germane points. The special concurrence states that defendant did not raise the sufficiency of the evidence of DUI and attaches an excerpt from defendant’s brief to support its notion. The first sentence in the attachment belies the assertion: “Because the loss of a [sic] crucial prosecution evidence renders the record insufficiently complete to permit full and proper consideration [of] the claim that the defendant raised in his post-trial motion — that he was not proved guilty beyond a reasonable doubt (C33) — the defendant has been deprived of his constitutional right to a direct appeal.” Integral to the parties’ entire conception of the issues on appeal is the idea that the evidence was insufficient to support defendant’s conviction beyond a reasonable doubt. Accordingly, we are compelled to address this issue.
Belatedly, the special concurrence strongly criticizes the majority for reaching both elements of the missing evidence inquiry, the fault inquiry and the colorable need or materiality inquiry. The special concurrence would impose a waiver on defendant for failing to discuss the fault element, and it would terminate its analysis at that point. In our view, however, both elements need to be addressed, considering the equities of this case.
The State does not argue that defendant was at fault for failing to preserve the videotape. Instead, the State argues that defendant may be at fault for failing to demand earlier that the videotape be preserved. Rather than indicating that defendant was at fault, the State’s argument suggests the opposite — that defendant did not have the videotape and did not cause its loss. The circumstances reported in the affidavit concerning the loss of the videotape further indicate that the videotape was not under defendant’s control at the time of its loss. Accordingly, the record appears to support the idea that defendant, as a matter of historical fact, was not at fault for failing to preserve the missing evidence. Due to this factual circumstance, and notwithstanding defendant’s failure to recognize the role of fault in his analysis of the missing evidence, the ideals of justice and fairness dictate that we forgo strict application of waiver and proceed to the materiality or colorable need element of the missing evidence analysis.
The special concurrence cites a number of cases from which it purports to derive the rule that lack of fault must be decided before materiality or colorable need.
The special concurrence contains a rather expansive discussion of Foutch v. O'Bryant,
The special concurrence complains that we incorrectly analogize our analysis with that in Strickland.
III. CONCLUSION
Defendant has failed to show that the evidence was insufficient to support his guilt beyond a reasonable doubt of driving while his license was suspended. Likewise, defendant has failed to make the requisite showing that he was not at fault regarding the omission of the videotape and that the videotape is material to his contentions on appeal. Defendant has also failed to demonstrate that the evidence was insufficient to support his DUI conviction. Accordingly, we affirm defendant’s convictions.
For the foregoing reasons, the judgment of the circuit court of Kendall County is affirmed.
Affirmed.
BYRNE, J., concurs.
Concurrence Opinion
specially concurring:
I concur in part and specially concur in part.
FIRST ISSUE
“The defendant was not proved guilty beyond a reasonable doubt of driving while license suspended — [sic] because the record contains no evidence that his license was suspended on the date of the traffic stop.” Defendant’s Brief at 1 (points and authorities) (210 Ill. 2d R. 341(h)(1)).
I concur in the analysis of the first issue, regarding the suspended license. The law regarding the admissibility of hearsay evidence and the appropriate weight that may be given to such evidence if admitted without objection is well established.
SECOND ISSUE
“Because the loss of crucial prosecution evidence renders the record insufficiently complete to permit full and proper review, the defendant has been deprived of his constitutional right to a direct appeal of his conviction for driving under the influence of alcohol. The conviction must therefore be reversed and the cause remanded for a new trial on that charge.” Defendant’s Brief at 1 (points and authorities) (210 Ill. 2d R. 341(h)(1)).
Defendant’s Argument
Defendant filed a three-page argument claiming that the loss of crucial prosecution evidence prevents the compilation of a record sufficient for meaningful review. This entire argument is included in an appendix to this special concurrence so that the reader can read and consider the argument. Defendant properly cites to cases for the general propositions that a defendant is entitled to a direct appeal of his conviction and that the State must provide, to an indigent defendant, a sufficient transcript for meaningful review. However, defendant cites cases that relate to missing or incomplete transcripts of proceedings. These cases do not stand for, or even consider, the right to meaningful review in the context of lost real evidence. Defendant properly cites to Stark, Hopping, Ramos, and Seals as they relate to transcripts but does not set forth the two-step test to establish the right to a reversal. See, e.g., Ramos,
In order to raise a proper and adequate appeal, a defendant must present a record of sufficient completeness to permit proper consideration of his specific claims of error. Hopping,
Without citation to authority, defendant claims that it is the State’s burden to preserve the evidence or provide the defendant with a copy of the evidence. Without citation to authority, defendant further claims that “the missing video is the equivalent of a missing transcript.” Again, without citation to authority, defendant claims that “[m]eaningful review requires [the videotape’s] inclusion in the record because the trial judge relied upon it.”
This court is not a depository wherein we must research and develop the parties’ claims and arguments. People v. Trimble,
Majority Discussion
The majority sets forth the two-step analysis as, “Defendant, therefore, must make a dual showing: that the videotape is material to defendant’s contentions on appeal and that he is not at fault for failing to preserve the videotape.”
First, the majority has, sua sponte, incorrectly transposed the steps so as to place the lack of fault analysis last and the consideration of the merits first. I come to this conclusion because the majority does not follow prior law and is devoid of any rationale allowing it to alter the authority previously contained in numerous supreme and appellate court cases. See, e.g., Stark,
There is nothing in the majority opinion that would allow it to alter prior law emanating from the supreme court. The supreme court in Stark first considered whether a missing transcript was the fault of the defendant-appellant. It determined that the defendant was not at fault because the duty was on the State to initially provide a transcript, and the State was unable to do so because the court reporter was unable to locate her notes. Stark,
I submit that the reason that fault was addressed first by the supreme court was that the general rule as set forth in Foutch v. O’Bryant,
“[A]n appellant has the burden to present a sufficiently complete record *** to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. Any doubts which may arise from the incompleteness of the record will be resolved against the appellant.”
Without the defendant establishing a lack of fault, Foutch applies. If Foutch applies, then there are numerous presumptions that are employed in considering the merits of the appeal. If the record presented does not clearly establish that error was committed, it will be presumed that the order entered was in conformity with the law and had a sufficient factual basis, and the defendant will lose on the merits. If the defendant establishes lack of fault, then the Foutch rule and its negative presumptions will not be applied. Additionally, the more favorable presumptions set forth in Majka,
This two-step analysis is more precisely a two -stage analysis. In order for the court to evaluate the merits of the appeal, it must first determine whether the defendant was at fault so that the proper set of presumptions can be applied in the analysis on the merits. If a court applied the two-stage analysis in reverse, any analysis would be subject to revisitation depending upon whether the appropriate presumptions were applied in conformity with the conclusion of the lack of fault analysis. The court could also consider the merits under both sets of presumptions and then consider lack of fault to determine which presumptions should apply and which hypothetical analysis was appropriate. That procedure, except possibly in a rare circumstance, would be judicially inefficient. If you want to put your pants on after you put your shoes on, you may, but if they do not fit over your shoes, you may have to take your shoes off and put them back on again. The majority’s reformulation of the two-step analysis is similarly impractical.
Addressing lack of fault first is the most logical and practical juxtaposition. Follow, if you will, these scenarios, based upon prior case law, including Majka,
First scenario: The defendant is at fault. He then has several choices as to how to proceed. He may provide instead of the missing part of the record a substitute that still does not allow meaningful review. If he chooses this alternative, he loses because he has failed to suspend the rule in Foutch. He may provide a substitute that does allow meaningful review. In such a case, we will address the merits of the claim and relax the Foutch rule, and he may win or he may lose. The State may or may not augment the substitute in order to properly respond to the claim. However, the State does not have the burden to do so.
Second scenario: The defendant is not at fault. He has now relaxed or suspended the Foutch rule. He then has several choices as to how to proceed. First, he may provide a minimal substitute that enables the appellate court to determine that there is a colorable need but does not allow for meaningful review. If the State does not augment the substitute to provide for meaningful review, the defendant wins and obtains reversal and a new trial. Second, the defendant may provide a substitute that will allow meaningful review. We would address the merits, and the defendant may win or lose. The State may or may not augment the substitute in order to properly respond to the claim. The State has the burden to provide a sufficient substitute for meaningful review if the defendant establishes a colorable need but does not provide a sufficient record for meaningful review. Under this scenario the presumptions that are applied are the more favorable presumptions set forth in Mayer and Majka.
It is evident from the above that, depending upon fault or the lack thereof, the defendant and the State will have to approach the claim in different ways, as to both strategy and work product. In the first scenario, the defendant provides a meaningful substitute or he certainly loses. In the second scenario, he may actually win by not providing a substitute that allows meaningful review. The difference between the two results and their analyses arises out of the prefatory determination as to whether the Foutch rule is to be applied or relaxed. Additionally, the State is now burdened with making strategic choices and creating work product that are not required in the first scenario. It is not strategically logical to proceed to the colorable need step until the issue of lack of fault has been addressed and decided.
When the case is presented to us for disposition, if we do not first determine the issue of lack of fault, we will have to consider both scenarios with differing presumptions and the convoluted permutations that result by putting the cart before the horse. The juxtaposition of the two-stage test declared by the majority makes no sense.
The majority disregards the obvious simplicity of disposing of this case pursuant to the Foutch rule due to defendant’s failure to establish lack of fault for filing an incomplete record. This is impractical for sundry reasons. It is an inefficient use of defendant’s time, money, and effort to fail to establish lack of fault without providing a meaningful substitute. Assuming, arguendo, that the majority actually did determine that there was a colorable need, defendant would still lose because he failed to sustain his burden on the now second stage of lack of fault. It is an inefficient use of the State’s time, money, and effort to have to address the alleged merits when the second stage (lack of fault), which was raised by the State, would resolve the appeal so expeditiously. It is also unjust to place upon the State the burden to provide a meaningful substitute when defendant has failed to show that the Foutch rule should be suspended. A possible result of this false logic is that, if the State provides a meaningful substitute for the record, it will still be unclear which set of presumptions should be applied to the substitute. Finally, it is a waste of time for three appellate justices to contemplate the possibility that the Foutch rule might not apply and to address the merits of an appeal that was improperly perfected, insufficiently constituted, and improperly argued with improper presumptions, only to conclude that the Foutch rule in fact does apply.
The majority attempts to rationalize its reformulation by suggesting that there may be times when addressing fault first might be inefficient and it would be easier to address the merits. The majority attempts to ameliorate its reformulation by making an analogy to the Strickland analysis: “In short, we do not see that one of the two hurdles is ‘prefatory’ (
The majority suggests that the fault step is not prefatory. If so, then which set of presumptions will be applied when the majority addresses the merits? The majority could actually “Foutch” the defendant were it to use the negative presumptions and determine that “colorable need” was not established. The majority might then claim that there is no need to determine fault and simply affirm, as is done with the mutually independent steps in a Strickland analysis. If the defendant were actually lacking fault, then he would be the victim of the improper application of the Foutch rule. The Strickland analogy would be valid only if the majority were to apply the favorable presumptions that apply under Mayer and Majka and determine that colorable need was lacking. However, if the majority found colorable need with the favorable presumptions, then it would have to consider lack of fault to determine if the favorable presumptions were validly applied. Simply put, lack of fault sets the parameters of the merits analysis. If it is established first, there is little probability that the presumptions will have to be revisited or that incorrect presumptions will be applied. Thus, utilizing the second prong first and then revisiting the first prong is both contrary to the application of Strickland and impractical in its own right.
The majority cites to Malley for the following propositions:
“The responsibility for preserving a sufficiently complete record of proceedings before the trial court rests with the defendant ***. [Citation]; Malley,103 Ill. App. 3d at 536 . Where the record on appeal is incomplete, any doubts arising from that incompleteness will be construed against the defendant [citation] and every reasonable presumption will be taken in favor of the judgment below {Malley,103 Ill. App. 3d at 536 ).”378 Ill. App. 3d at 861 .
In Malley, the defendant failed to request that a record be made of the trial. On appeal, he presented an agreed statement of facts but claimed that it was insufficient to allege error or prejudice. Similar to the case before us, the defendant in Malley did not make “any specific allegations but merely claim [ed] he [did] not have appeal rights because he [did] not have a transcript.” Malley,
“Where the record on appeal is incomplete, the court will indulge in every reasonable presumption favorable to the judgment or order appealed from. [Citation.] Absent an adequate presentation of the record by the appellant, every reasonable intendment against the defendant is presumed on appeal.” Malley,103 Ill. App. 3d at 536 .
If the above quote sounds familiar, it is because it is virtually identical to the holding in Foutch quoted above. I submit that Foutch was not cited in Malley simply because it was not decided until two years after Malley. The majority states:
“Actually, our only mention of Foutch is now, in response to the special concurrence, because we do not see it as at all applicable. An appellant confronted with Foutch will argue that the missing part of the record is not necessary for consideration of the appeal. Here, defendant’s motivation is precisely the opposite — he is arguing prejudice because the missing videotape is necessary for consideration of the appeal.” (Emphasis added and in original.)378 Ill. App. 3d at 869 .
As the majority cites to Malley as authority, it would be both interesting and enlightening for it to explain why Malley applies the Foutch rule. The defendant in Malley made virtually the same argument as is made here. The majority claims that Foutch is inapplicable in situations where the defendant makes the argument emphasized above. If the holding in Foutch is inapplicable in this case, then Malley was wrong to have applied the negative presumptions contained in cases prior to Foutch. Put another way, Foutch is applied based upon the analysis set forth in the court’s disposition. It is not based upon the arguments made by the defendant. If the supreme court’s holding in Foutch is inapplicable, why is the same holding, made two years earlier by the appellate court in Malley, cited as authoritative? In response to my special concurrence, the majority claims that it is relying upon Malley’s statement that “a defendant must demonstrate materiality or colorable need.”
In conclusion, the establishment of lack of fault is determined based upon static parameters, independent of colorable need. Color-able need is determined by alternative parameters, dependent upon whether or not lack of fault is established. The majority, by failing to confirm the establishment of lack of fault as the prefatory step, is not setting forth the law in a clear, concise manner that is conducive to a plain, speedy, and efficient review.
I submit that the majority cannot see the forest for the trees. The Foutch rule is a principle of appellate procedural review. It exists in any situation that deals with the adequacy of the record unless there is an overriding rule or principle that would require relaxation of the rule. According to Mayer and Majka, the establishment of lack of fault as a prefatory determination would relax the Foutch holding. Without first determining whether the defendant has sustained his burden of establishing lack of fault, any future review will be subject to revisitation in order to determine whether the Foutch rule should be applied to the colorable need stage. This is true regardless of the nature of the argument raised by the defendant. The defendant can and may argue anything or everything, but until he satisfies his burden of establishing lack of fault, neither he nor an analysis of colorable need will resolve whether the unfavorable presumptions of Foutch or the favorable presumptions of Mayer and Majka will apply.
There is no reported case law or statute that presumes that the loss of evidence, material or otherwise, will automatically result in reversal of a conviction without the court first determining the reason for the absence of the evidence. In fact, the Foutch rule posits the opposite conclusion. This brings us to the majority’s unnecessary recitation of foreign jurisprudence. The majority declares the following:
“In Stark, Ramos, and Seals, both elements were present: the defendant’s lack of fault and the materiality of the missing evidence or portion of the record to the court’s review. Defendant, by contrast, suggests that a per se rule should obtain: If evidence presented at trial is missing from the record on appeal, then the record is not sufficiently complete for appellate review. Our analysis of the law in Illinois belies this per se rule. We therefore turn to other jurisdictions to attempt to discern the roots of defendant’s per se rule.”378 Ill. App. 3d at 864 .
First, I disagree that a fair reading of defendant’s brief would reveal that defendant suggests a “per se” rule should obtain. Defendant argues, “In some cases, a bystander’s report or an agreed statement of facts may suffice ***. [Citations.] However, that will not always be the case.” (The reader may read the attached argument from defendant’s brief in order to personally consider the “suggestion” of the rule.) I submit that this argument is not claiming that, as a matter of law, meaningful review cannot be obtained. Mayer, the claimed source of the right to meaningful review and cited by defendant, did not hold that the record needed to be verbatim or in its original condition. See Mayer,
“Our supreme court has held that the constitution does not require some particular degree of detail for a substitute to be permissible. Instead, it requires ‘a record of sufficient completeness to permit proper consideration of the specific claims made by the defendant.’ ” Majka,365 Ill. App. 3d at 370 , quoting Hopping,60 Ill. 2d at 251-52 .
The difference between Majka and this case is that, in Majka, the defendant explicitly raised two issues on appeal that were affected by the lack of a verbatim transcript — the allegedly incredible testimony of a witness and improper comments made by the prosecutor during voir dire, concerning the burden of reasonable doubt. These issues were not raised in a vacuum or raised as a nebulous integral part “of the parties’ entire conception of’ the issue of meaningful review, as claimed by the majority herein.
Defendant is guilty of circuitous logic resulting in “bootstrapping.”
Assuming, arguendo, that defendant suggested such a rule, the law in Illinois is clear, and there is no benefit to be obtained from considering foreign jurisprudence. There are six Illinois cases on point: Stark, Luke, Ramos, Seals, Majka, and People v. Cunningham,
Assuming further that defendant attempted to argue something other than the required two-stage analysis, it was neither a rule nor per se. Defendant argued that the videotape “is a one-of-a-kind recording that cannot be recreated with a bystander’s report or agreed statement of facts.” Defendant’s argument is not a per se rule but a sui generis argument. Coincidentally, this argument was refuted in Majka:
“Our supreme court has held that the constitution does not require some particular degree of detail for a substitute to be permissible. Instead, it requires ‘a record of sufficient completeness to permit proper consideration of the specific claims made by the defendant.’ [Citation.]” Majka,365 Ill. App. 3d at 370 .
Defendant incorrectly raised the issue of meaningful review and the majority turns it into a “suggested per se rule’Vstraw man in order to recite foreign jurisprudence. The majority, rather than defendant, is making the suggestion. The majority, rather than defendant, relates to foreign jurisprudence to conflate this unnecessary revelation. The majority early on establishes what the law in Illinois is. See
Finally, the majority inaccurately defines what the correct second stage is or should be. The majority first posits the stage as showing “that the videotape is material to defendant’s contentions on appeal.”
I submit that the proper phrase to define the second stage should include the term of art that is set forth in 10 other Illinois cases. The term of art is “colorable need.” See Appelgren,
Considering the abundant use of “colorable need” to define this stage, the majority should not cease its use through the creation of an alternative phrase. (Ironically, the majority itself mentions “colorable need” at least nine times as a term of art relating to the second stage (
Finally, I disagree with the non sequiturs contained in the majority opinion. The first non sequitur states as follows:
“Because defendant has not made even a prima facie showing that the absence of the videotape impairs our review of the record on appeal, we conclude that the record as it now stands is sufficient for review.”378 Ill. App. 3d at 867 .
The failure to prove one side of a proposition does not prove the opposite. An example of this axiom is the Scottish Verdict. The Scottish Verdict has three possible dispositions: guilty, not guilty, and not proven. The “not proven” verdict is rendered when the evidence presented does not establish guilt but fails to establish innocence. Another example is that the failure to prove that God exists does not prove that God does not exist. The failure to prove that the record is insufficient does not prove that it is sufficient. It merely establishes that the defendant has not sustained his burden on review.
The majority serves up its second non sequitur immediately thereafter:
“The fact that defendant does not argue that the videotape was even in the least bit exculpatory or inconsistent with any of the police testimony presented at trial leads us to conclude that it is not material to the points he raises on appeal.”378 Ill. App. 3d at 867 .
There is more than one probable reason why the argument was not made. One probable reason is that it does in fact lack merit. Another probable reason is that counsel was ineffective for failing to properly raise and argue the point, as evidenced by the three-page argument attached. The majority’s conclusion is pure speculation, and I distance myself from it. More to the point, it is a conclusion based upon a negative presumption connected to the Foutch rule. It would appear that the majority is applying a Foutch rule presumption before it determines if the Foutch rule applies.
The third non sequitur states:
“Defendant has not demonstrated, even cursorily, that the record on appeal is insufficient for our review. Accordingly, we conclude that we may review the record on appeal as it stands before us.”378 Ill. App. 3d at 867 .
This is a repetition of the first non sequitur. It establishes the proof of a proposition based upon the lack of proof of the opposite. Additionally, it makes no sense to review the record when defendant raises no issue relating to the need to review what is contained in the record. The second issue raised by defendant raises an argument about what is not in the record, not what is. Any discussion regarding review of the record with regard to the second issue is unnecessary.
THIRD ISSUE
“ .” Defendant’s Brief at 2 (points and authorities)
(210 Ill. 2d R. 341(h)(1)).
The majority claims that “ [defendant also argues that the evidence was insufficient to prove his guilt of DUI beyond a reasonable doubt.”
I disagree. There is no issue set forth in defendant’s brief that remotely raises reasonable doubt as to DUI. There were only two issues raised in the brief and they are set forth verbatim above. Additionally, there are no points and authorities set forth in the brief that remotely raise, expound upon, cite authority regarding, or argue that the evidence was insufficient to prove guilt. There is nothing to support the existence of the explicit argument addressed by the majority as the third issue. Supreme Court Rule 341(h)(3) requires a statement of the issue(s) for review. 210 Ill. 2d R. 341(h)(3). Supreme Court Rule 341(h)(1) requires a “summary statement, entitled ‘Points and Authorities,’ of the points argued and the authorities cited in the Argument.” 210 Ill. 2d R. 341(h)(1). Supreme Court Rule 341(h)(7) states in part, “Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” 210 Ill. 2d R. 341(h)(7).
Defendant’s entire DUI argument is attached so that the reader may attempt to locate wherein defendant allegedly raised the issue of guilt beyond a reasonable doubt, in conformity with rules of appellate procedure or otherwise. It is also included so that the reader may search for the element or elements of the crime that were allegedly not proven, as well as the references to the record where the evidence was insufficient, incredible, inconsistent, impeached, incompetent, or exculpatory. The reader may also attempt to locate the citations to authority regarding all of the above.
The majority responds to my concern by relating that “[ijntegral to the parties’ entire conception of the issues on appeal is the idea that the evidence was insufficient to support defendant’s conviction beyond a reasonable doubt. Accordingly, we are compelled to address this issue.”
“Defendant does not identify the element of the offense that he claims was not sufficiently proven, nor does he in any manner explain how the evidence was insufficient to prove him guilty of this offense beyond a reasonable doubt. We deem this contention waived, as it is devoid of argument or citation to legal authority in contravention of the requirements of Supreme Court Rule [341(h)(7) (210 Ill. 2d R. 341(h)(7))]. *** The appellate court is not a depository into which a party may dump the burden of research. [Citation.] It is well settled that we are entitled to a well-reasoned argument, along with authority for such argument. [Citation.]” People v. O’Malley,356 Ill. App. 3d 1038 , 1046 (2005) (O’Malley, P.J., concurring).
Finally, the majority makes the following representation:
“The circumstances reported in the affidavit concerning the loss of the videotape further indicate that the videotape was not under defendant’s control at the time of its loss. Accordingly, the record appears to support the idea that defendant, as a matter of historical fact, was not at fault for failing to preserve the missing evidence. Due to this factual circumstance, and notwithstanding defendant’s failure to recognize the role of fault in his analysis of the missing evidence, the ideals of justice and fairness dictate that we forgo strict application of waiver and proceed to the materiality or color-able need element of the missing evidence analysis.”378 Ill. App. 3d at 868 .
I disagree.
The affidavit referenced above states the following:
“[A] videotape of the traffic stop and subsequent arrest of the defendant, which was considered by the trial judge in this captioned case, is not in the possession of the Office of the Kendall County Circuit Clerk, Kendall County State’s Attorney’s Office or Kendall County Fublic Defender’s Office. A search by all parties involved to locate the videotape has been unsuccessful.”
The affidavit establishes only two things: first, that the tape is not in the record; and, second, that a search by all parties was unsuccessful. There is nothing in the affidavit to support the conclusion that the tape was lost while “not under defendant’s control.” The conclusions drawn by the majority are non sequiturs. The affidavit does not establish lack of fault as to any affiant. “[A]bsence of evidence [of fault] is not evidence of absence [of fault].” People v. Mata,
CONCLUSION
As noted by Timothy P. Terrell, professor of law at Emory University and lecturer on legal writing, most practitioners/readers read opinions because they have to, not because they want to. If you conclude that this opinion was unnecessary, or not worth the time it took to peruse it, I apologize. I believe you have been forced to read what should have been an unpublished summary order based upon the briefs filed and the issues raised therein, or I should say, not raised therein.
APPENDIX
BRIEF AND ARGUMENT FOR DEFENDANT-APPELLANT
II.
Because the loss of crucial prosecution evidence renders the record insufficiently complete to permit full and proper review, the defendant has been deprived of his constitutional right to a direct appeal of his conviction for driving under the influence of alcohol. The conviction must therefore be reversed and the cause remanded for a new trial on that charge.
Because the loss of a crucial prosecution evidence renders the record insufficiently complete to permit full and proper consideration the claim that the defendant raised in his post-trial motion — that he was not proved guilty beyond a reasonable doubt (C33) — the defendant has been deprived of his constitutional right to a direct appeal. His conviction for driving under the influence of alcohol must therefore be reversed and the cause remanded for a new trial.
In finding the defendant guilty of driving under the influence of alcohol, the trial judge referred to testimony and a video of the incident. (C26) The video cannot be found, according to an affidavit by the Kendall County Circuit Court Clerk. [Appendix at A16]
The issue of whether the Defendant has been denied his right to appeal as a result of an incomplete record presents only a question of law, and is therefore subject to de novo review. See People v. Coleman,
The Illinois Constitution guarantees defendants convicted of criminal offenses a right to direct appeal. Ill. Const., Art. VI §6. An indigent defendant who pursues a direct appeal is entitled to a free transcript of the trial court proceedings. Supreme Court Rule 607(b). See also Griffin v. Illinois,
In some cases, a bystander’s report or agreed statement of facts may suffice in the absence of a verbatim transcript of the trial court proceedings. Supreme Court Rule 323(c),(d); Mayer,
Here, an Agreed Statement of Facts relates the substance of the trial testimony, but the video, which the judge referred to in his finding of guilt (C26), is missing, despite efforts to locate it. Your Honors granted appellate counsel’s motion to compel production of the video or to account for its absence. [Appendix, at A15] Pursuant to this Court’s order, the Kendall Circuit clerk filed an affidavit with this Court, dated September 27, 2006, stating that the video could not be found [Appendix, at 16]
The loss of the video necessitates that this cause be reversed and remanded for a new trial. Compare Ramos,
There is no acceptable substitute for the video of the incident. It is a one-of-a-kind recording that cannot be recreated with a bystander’s report of agreed statement of facts. The defendant’s post-trial motion claimed that the evidence was insufficient to prove him guilty beyond a reasonable doubt. (C33) Without the video, this Court lacks sufficient basis to review his claim. The loss of the video deprives the defendant of his right to full and proper direct appellate review. Accordingly, the defendant requests that this Honorable Court reverse his conviction, vacate his sentence, and remand this cause for a new trial.
Notes
Bootstrapping alludes to a German legend about a Baron Münchhausen, who was able to lift himself out of a swamp by pulling himself up by his own hair. In later versions, he was using his own bootstraps to pull himself out of the sea, which gave rise to the term. R Raspe, The Surprising Adventures of Baron Münchhausen (or Baron Münchhausen’s Narrative of his Marvellous Travels) (1785).