*1 reasons, For the above we affirm.
Affirmed.
GARMAN, EJ., GREEN, J., concur. THE ILLINOIS, PEOPLE OF THE STATE OF Plaintiff-Appellee, v. McCLANAHAN,
DONALD E. Defendant-Appellant. Fourth District No. 4 — 97—0792 Argued Opinion October Rehearing filed November 1998. 1998. denied December *2 STEIGMANN, J., concurring. specially (argued), Appel- Jacqueline
Daniel D. Yuhas and L. Bullard both of State Office, appellant. Springfield, late Defender’s (Norbert Goetten, Attorney, Kelley, Springfield J. Patrick W. Attorneys Biderman, (argued), all Robert J. and Denise M. Ambrose of State’s Office, counsel), People. for the Appellate Prosecutor’s of the court: opinion JUSTICE GREEN delivered the of 1963 115—15 of the Code of Criminal Procedure Section (Procedure Code) admissibility in of a labo provides for the evidence Police, ratory from the Division of Foren Department Identification, concerning case con sic Services and a criminal (2) (1) made; certain certifications are trolled substance violations counsel; upon served signing person defense failed to demand “the *** *** (725 ILCS receipt report” within 7 15(c) (West 1996)). is whether major question this case 5/115— amend section 115—15 the confrontation clause of the sixth violates in the fourteenth incorporated ment to the United States Constitution (U.S. XIV) VI, Const., provi- and similar amendment thereof amends. (Ill. sions of section 8 of article I of the Illinois Constitution of 1970 I, § Const. art. We hold that no necessarily such violation oc curs. April 30, 1997,
On following jury trial the circuit court of Sangamon County, defendant Donald E. McClanahan was convicted of possession unlawful grams of less than 15 of a substance containing 570/402(c) (West 1996). cocaine. 720 ILCS subsequently He was years’ sentenced to three imprisonment concurrently to run with a two-year federal sentence serving he was then for three counts of dis- tribution of a containing substance cocaine. The nature of the substance defendant possess was shown to proved pursuant section 115—15 of the Procedure Code a laboratory report certi- thereto, fied in conformity proof of eight service months before trial of proper copy of the laboratory report concerning the substance taken from defendant. Defendant demanded production person signing report, but that demand was not served until approximately eight months after the report had been served upon the shortly defense and before trial. appeal,
On defendant maintains not that the introduction of report pursuant to section 115—15 of the Code created a confrontation clause violation but also a violation of due process. De- fendant also asserts he was denied a fair trial by prosecutor’s improper comments in closing arguments. We affirm.
Section 115—15 of the Procedure Code entirety: its *3 “(a) any In prosecution criminal for a violation of either the Can- Act,
nabis Control Act or the Illinois Controlled Substances a labo- ratory report Department Police, from the of State Division of Fo- Identification, rensic Services and signed that is and by sworn to the person performing analysis an and that states that the substance that is the basis of alleged weighed the violation has been analyzed, and person’s findings contents, and the as to the weight identity substance, and of the any and that it contains amount of a dence prima controlled substance or cannabis is facie evi- contents, identity
of the and weight of the substance. At- tached to report the shall be a by notarized statement the (i) signer report giving of the the signer stating name of the and that employee Police, he or she is an of the Department of State (ii) Identification, Division of Forensic Services and the name and (iii) location of the analysis performed, where the performing analysis part duties, the regular is of his or her (iv) signer education, and that the qualified by training is and ex- perience perform analysis. signer the The allege shall also scientifically accepted performed tests were with due caution and that the evidence was handled in accordance with established and accepted procedures custody laboratory. while the of the
219 (b) the report Attorney shall the The State’s serve accused, if he or she or on the accused attorney of record for the to be report in which the is attorney, any proceeding has no before hearing preliminary other at a against the accused than used having may be used without jury hearing when the grand upon the accused. previously served (c) contents, prima not be facie evidence of The shall her at- if the accusedor his or identity, weight of the substance by testimony signing the torney person demands Attorney days from within 7 serving the demand receipt report.” attorney’s accused or his or her (West ILCS 5/115—15 entitled every is
The federal constitution
accused
Const., amend.
him.” U.S.
against
“to
confronted with the witnesses
“to
reli
clause is
ensure the
purpose
VI. The
the confrontation
by subjecting it
ability
against
of the evidence
a criminal defendant
rigorous testing
adversary proceeding
before
the context
666,
2d
Maryland Craig, 497
111 L. Ed.
trier of fact.”
v.
U.S.
(1990).
by the
678,
3157,
accomplished
This is
110 S.
cross-examination,
oath,
presence,
effect of physical
combined
846,
Craig,
by
of demeanor
the trier of fact.
497 U.S.
observation
clause of
678,
111 Ed. 2d at
hearsay
jury
information in the
without
by
a violation
proof
person conducting
testing
foundation
witness,
no
right
gives
to confront the
consideration
defendant’s
15(2),
grants
of section
provision
requirement
make a
v. Il
report. Rather, the
focuses on such cases as White
defendant
346,
(1992), Idaho v.
linois,
848,
Defendant maintains that even if he could be denied the compel the production of the preparer of the laboratory report by hav ing rights, waived his the waiver would have to be voluntary on his part and not the result of failure of his counsel to respond. He at tempts to draw analogy between the situation here and that giving rise to our Perona, decision In re 294 Ill. App. 3d 690 N.E.2d (1998). There, respondent was recommitted to a mental health center after a hearing from which he had absented himself. That trial 806(b) proceeded court pursuant to section of the Mental Health and Developmental Code, Disabilities permitted the court to proceed when the respondent’s attorney advised the court “[the respondent] 806(b) (West 1996). refused to attend.” See 405 ILCS 5/3—
In Perona, this court held the foregoing provision in regard to proceeding the absence respondent did not facially deprive de fendant of procedural process. due We stated:
“Deciding whether statutory procedure comports proce process dural due first, involves a three-part analysis: we ask whether there liberty property exists a interest that has state; second, interfered with we examine the risk of an er deprivation roneous of such an through procedures already interest place, while considering safeguards; the value of additional third, we examine monetary the effect the administrative and burdens of procedures additional would have on the state’s inter est. Eldridge, Mathews v. Teachers,
S. (1976); East St. Louis Local Federation [of Oversight v. East St. Louis School District No. 189 Financial [(1997)]. Panel], [399,]415-16, [1050,] 178 Ill. 2d 687 N.E.2d *5 recognized process guaran due procedural has that long It to right hearing at his in order respondent tees a to be Patterson, 605, liberty Specht v. protect interest. See his (1967). However, 326, 1209, 610, 330, 1212 87 S. rights. People v. may constitutional respondents waive their (1979). 688, A Johnson, 180, 187, 691 waiver Ill. 2d 387 N.E.2d 75 voluntary act, also a rights not a but constitutional must be of rele knowing, intelligent act sufficient awareness done with Johnson, Ill. 2d at consequences. circumstances 75 likely vant 691, States, U.S. Brady United 397 187, quoting at v. 387 N.E.2d (1970).” Pe 756, 1463, 1469 742, 748, 747, 2d 90 S. Ct. 25 L. Ed. 762-63, rona, 3d at 690 N.E.2d at App. 294 Ill. had holding respondent that the aspect
One of our in Perona was present. contends knowing right of his to be Defendant made a waiver knowing make of his constitutional he did not a waiver that of deprived and was thus right preparer to confront the However, right was involved present, to be process. due Perona, a could not waive for right was fundamental that counsel Ill. 2d People Steenbergen, his v. 31 or forfeit on behalf. respondent 136, 404, (1964); Mallett, 2d People 203 406 v. 30 Ill. N.E.2d (1964). 142, 687, 195 N.E.2d
Here, right of confrontation was defendant’s constitutional involved, to case has been called our attention that would but no right prevent waiving from a defendant’s to examine byor his containing hearsay of a document information prepara To make right. conduct forfeit that hold otherwise would tion for the trial of criminal cases more difficult.
Here, the time laboratory report was served on the defense at gave counsel did not contend required discovery. its Defense signature. he or furnishing was unaware of document its three record he had the document and waited until indicates had presence preparer. before trial to make demand for the late, too court admitted the properly This was circuit into evidence. holding applied
In of the Procedure Code was not section 115—15 right a to here in such manner as violate defendant’s confrontation recognize, Oregon Court process, Supreme due we as did 11, Hancock, 929, very pre at Or. 2d 654 P.2d often parer eventually testifying. of a from Sec excused regard. 115—15 an earlier decision promotes tion aids and Moreover, an right put accused has a relevant evidence favorable him, required he failure right by give can lose reasonable Johnson, 781, People App. 262 Ill. 3d 787- regard. this v.
88, (1994); 827, White, App. 635 N.E.2d 831-32 v. 257 Ill. N.E.2d By logic, same by requirement defendant’s can be limited confrontation take such required reasonable action as that here.
Finally, aspects the two of defendant’s er- contention reversible arising closing argument ror the prosecutor’s are statement had a conviction, defense witness criminal argument defendant’s assertion the State’s racist. Defendant alleged contends errors in the these occurred course trial where closely the evidence was balanced. We find no error. reversible question The defense witness in did a criminal have conviction for impeachment purposes which was inadmissible as it 516-17, (People Montgomery, stale Ill. 2d (1971)). 698-99 The court the objection sustained to the State’s refer conviction, ence to this jury opening was instructed that state closing arguments ments and were evidence. Defendant contends *6 close, that because the evidence this to of was reference the conviction the witness was reversible error. We do not agree the evidence but, were, if close it even no reversible error occurred as the court objection had sustained the and properly jury. instructed theory The of the defense the controlled substance had placed on the defendant by police officers to create an excuse beatings imposed. prosecutor had officers The then contended this was not “L.A.” and that this situation was highly different Rodney King publicized episode by po where arrestee was beaten lice lengthy prosecution argument officers. We do construe the to racist, objection Thus, no be was raised. the issue has been plain Keene, forfeited absent error. Ill. 2d race, Both mentioned and defendant had sides beating testified the used no Clearly, officers racial slurs while him. error plain arose. stated,
Accordingly, for the have affirm the convic- reasons we we tion sentence.
Affirmed.
McCullough, j., concurs. STEIGMANN, concurring:
JUSTICE specially agree specially I Although fully opinion, I court’s write with the only to it should use when caution State about the methods complying the Procedure Code. section 115—15 of laboratory aof provisions
That section’s the admission authorize (1) author, the report’s of live of report in lieu counsel; report upon defense Attorney copy serves a the State’s admissibility of object report’s counsel fails to defense it. receiving of seven evidence its contents within prima facie to the State fails timely objects, or If either defense counsel requires, as section 115—15 defense counsel report upon serve analyst wrote laboratory who will have to call then the State contents. testify regarding report’s report to moves where the State problem arising I a a situation envision ground that defense on the during trial to admit use, only to have object report’s had failed to to counsel received a assert that she never defense counsel matters, complicate prosecutor To both the the first further place. good faith respective claims might making defense their laboratory he sent a really believes prosecutor because the counsel, really defense counsel believes while it. she never received
Regrettably, sort arise with some discovery problems this However, during felony distinguishes par- trials. what this frequency directly one majority ticular from the vast is that this issue implicates right namely, a constitutional the defendant’s — agree I confront and one of the State’s witnesses. cross-examine dis- affirmatively defense counsel state her imposing burden agreement stipulation regarding admissibility with a proposed However, laboratory report passes constitutional muster this case. greater if a discovery dispute State should bear burden arises concerning laboratory whether defense counsel ever received the it might regarding than otherwise more “normal” bear discovery disputes. heightened meet good easily news is that the State can this regard following in either reports
burden with *7 ways. First, laboratory discovery response containing well) (and, discovery information perhaps, at issue other as triplicate, original copies should in each of the three prepared be with triplicate originals then the circuit One of the filed marked clerk. file, prosecutor’s one should remain the court should remain file, Under these provided and the third should be defense counsel. circumstances, if later that she never received defense counsel claims laboratory report, easily the trial court could resolve this by looking file discovery dispute by asking in the court both prosecutor discovery response for If the court his issue. each, finds inescapable at issue conclu- within counsel, receiving sion re- would be that defense State, sponse from the unstapled must have documents and there- simply after or misplaced report. lost second, perhaps efficient, less providing method of a rec- 15(b) compliance ord of with section Procedure Code is for 115— prosecutor make presenting a record of the laboratory open court to defense counsel at pretrial proceeding some in the case. The difficulty however, with this procedure, is that those counties which are able to administer their felony efficiently enough docket minimize multiple the need for pretrial hearings, opportunity might itself State to furnish the to defense this fashion.
Utilizing suggested one of the practice methods would be sound any discovery for the regarding information it defen (134 pursuant dant Supreme Court Rule 412 If Ill. R. comply methods, State fails to either of foregoing then it likely should it any discovery notice that will lose dispute that arises regarding whether defense counsel received notice from the 15(b) State, required by as section of the Procedure Code. MORRIS, Plaintiff-Appellant SHEILA Cross-Appellee, v. SHANNON (Aaron MILBY, Plaintiff). Defendant-Appellee Cross-Appellant Pasbrig, Fourth District No. 4 — 97—0819 Argued September 22, Opinion filed November 1998.