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June 20, 2001

The State filed a delinquency petition alleging thatrespondent, H.S.H., committed aggravated assault (720 ILCS 5/12--2(a)(1) (West 1998)), the unlawful use of weapons (720 ILCS 5/24--1(a)(10) (West 1998)), and the unlawful possession of firearms (720ILCS 5/24--3.1(a)(1), (a)(2) (West 1998)). The trial court barredtwo State witnesses from testifying after a third State witness whoalready testified told them about some of his testimony. Wereverse and remand.

When the bench trial commenced on October 28, 1999,respondent's attorney moved to exclude witnesses from thecourtroom, and the State joined in the motion. The State's firstwitness was Carlos Garcia. Garcia testified that he did not knowrespondent before the incident giving rise to this cause occurred. During the afternoon of April 11, 1999, Garcia was with friendsRyan Smith and David Brugger. Garcia parked his car on the streetnear his home. As Garcia was removing items from his car, he sawfive people, including respondent, walk past him and noticed thatthey were staring at him. Garcia was walking toward his home whenhe saw respondent flash gang signs. Garcia went to his frontsteps, put down the items he was carrying, and began to walk towardthe group. Respondent retreated through an alley. The remainingindividuals began "talking trash" to Garcia. One of them walked upto Garcia and used his chest to bump Garcia. As Garcia pushed thatperson, a second person shoved Garcia from behind. Garcia raisedhis fists to fight the second person, but that person did notengage Garcia.

Garcia then saw respondent holding a snow shovel, which Garciaidentified in court. Garcia warned that he would kill respondentif respondent came any closer. Respondent dropped the shovel andran away. Garcia then saw Smith arguing with the otherindividuals. Garcia watched the argument for a few minutes andthen saw respondent standing in an alley and holding a gun. Respondent was about 15 to 20 feet from Garcia and was pointing thegun at him. Garcia did not think the gun was real, so he began towalk toward respondent. Respondent pointed the gun toward theground, cocked it, and pointed it at Garcia again. Garcia stoppedwalking and challenged respondent to shoot him. Respondentappeared to be afraid and backed away somewhat. Respondent'scompanions urged him to withdraw. Garcia's companions pulledGarcia away, and Garcia walked away from respondent. Garcia wenthome and later told his family what happened. Garcia's sistercalled the police.

During cross-examination, respondent's attorney asked Garciawhat gang he belonged to, and Garcia responded that he was not ina gang. Garcia testified that on the day of the incident he spoketo police officers. Also, Garcia testified that he spoke toOfficer Mark Whaley the day after the incident. Respondent'sattorney questioned Garcia extensively about what Garcia did afterthe incident and what he told the police. Respondent's attorneyalso asked about the gun and how Garcia knew that it was real.

Garcia finished testifying, and the court ordered a shortrecess. When the trial resumed, respondent's attorney informed thecourt that a witness observed Garcia walk out of the courtroom andspeak with the State's two remaining witnesses. Respondent'sattorney requested that the court sanction the State by barring thetestimony of the remaining witnesses. The prosecuting attorneyasserted that a hearing would be necessary before the court couldimpose sanctions. The following exchange occurred:

"[Prosecuting Attorney]: *** I don't think sanctionswould be appropriate. I don't believe those witnesseswere advised *** of the motion to exclude. I am sorry,I did not do that.

THE COURT: I am sorry, I didn't admonish them. Ididn't know who was out there."

After another short recess, the prosecuting attorney statedthat she did not agree with the allegations of respondent'sattorney and related Officer Whaley's version of the allegedincident. The following exchange occurred:

"THE COURT: Was [Garcia] admonished by your officenot to discuss his testimony ***?

[Prosecuting Attorney]: I didn't, and I apologizefor that. *** I did tell the witnesses they could not bepresent in the room when they were testifying, but I didnot talk to them in more detail about the fact that theycould not."

The trial court stated that it would bar the remainingwitnesses from testifying. The State requested a short continuanceto consider whether it would appeal and to make an offer of proofregarding what occurred outside the courtroom. The court statedthat an offer of proof was not necessary but granted a continuance.

On November 19, 1999, the State moved for reconsideration. OnJanuary 19, 2000, the trial court agreed with the State that ahearing was necessary to determine whether a violation of thecourt's order excluding witnesses occurred and, if so, whether theviolation prejudiced respondent.

During the March 21, 2000, hearing, respondent called hismother, P.H. She testified that, during the trial, she sat in thelobby outside the courtroom. Respondent's attorney instructed herto wait outside until he called her to testify and not to discussanything that occurred inside the courtroom until the caseconcluded. P.H. saw Garcia exit the courtroom and walk to a nearbyroom where a police officer and a young man were sitting. Garciasaid to them, "you are not going to believe what they are saying." Garcia then informed them that he was asked about the shovel andidentified it in court. Garcia related that respondent's attorneyasked him if he was in a gang and asked about the gun. Garcia saidthat he denied that he was in a gang and testified that he sawrespondent with the gun. The officer told Garcia and the young mannot to worry and said that respondent "was going away for a longtime." Immediately thereafter, respondent's attorney emerged fromthe courtroom, and P.H. discussed the incident with him.

The State called Officer Whaley and Garcia. Whaley testifiedthat, while Garcia testified, he and Brugger waited in a conferenceroom near the courtroom. Whaley and Brugger discussed the eventsof April 11, 1999, and the initial investigation. Whaley mentionedthat they would have to cease discussing the case once Garciaexited the courtroom after testifying. Garcia came to theconference room and breathed a sigh of relief. Because it appearedthat Garcia was about to start discussing his testimony, Whaleyinstructed Garcia not to say anything. Garcia did not discuss anyof his testimony. Whaley then saw respondent's attorney exit thecourtroom and heard P.H. inform respondent's attorney that Garciawas discussing his testimony.

Garcia testified that, after he finished testifying during thetrial, he left the courtroom and walked to the conference roomwhere Whaley and Brugger were sitting. Garcia was about to"express [his] frustration," but Whaley immediately stopped him andexplained that Garcia was not allowed to discuss the testimony. Garcia did not tell Whaley or Brugger about any of his testimony orthe questions he was asked and, since the trial, has not discussedthe case with them.

The trial court believed P.H. and found that Garcia violatedthe court's order. The hearing proceeded to the second phase, andthe State called Officer Michael Kozenczak and Officer Whaley.

Kozenczak testified that, on April 11, 1999, he was dispatchedto Garcia's home. In each other's presence, Garcia and Bruggertold Kozenczak that they encountered a person who brandished ashovel and later a gun. Kozenczak recounted the story to Whaley,who prepared the report.

Whaley testified that he and another officer went to Garcia'shome on April 12, 1999. Garcia told Whaley that a person with whomGarcia was having an altercation brandished a shovel, disappeared,and then came back with a small pistol. The person cocked theweapon and pointed it at Garcia. Also on April 12, 1999, Whaleyand the other officer went to Brugger's home. Brugger also statedthat a person with a shovel disappeared and came back with a gun. Whaley described the information he obtained on April 12, 1999, asmuch more detailed than the information he obtained from Kozenczakthe previous day. Also, Whaley admitted that he included in hisreport a statement that he did not make an arrest at that timebecause of inconsistencies in the complainant's story.

On April 15, 1999, Whaley interviewed respondent at the policedepartment. Respondent stated that he was involved in analtercation with Garcia. Because he knew Garcia to be a goodfighter, respondent ran to a friend's car around the corner andretrieved a gun. Respondent unloaded the gun because he did notwant to hurt anyone. He returned to the scene of the altercation,pointed the gun off to the side, and cocked it. Respondent deniedpointing the gun at Garcia. Whaley showed respondent a gun thatthe police recovered in connection with the investigation, andrespondent identified it as the gun he had on the day of thealtercation. Whaley never asked respondent about a shovel. Whaleyprepared, and respondent signed, a statement.

The trial court took the prejudice issue under advisement and,on April 19, 2000, denied the State's motion to reconsider. Thecourt did not explain its findings other than to state that "theorder 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." The State filed a certificate of impairment and timely appealed.

Although there is no statute or supreme court rule thatmandates that witnesses be excluded from the courtroom during atrial, it is well settled that the trial court possesses thediscretion to do so. Smith v. City of Chicago, 299 Ill. App. 3d1048, 1053 (1998). Excluding witnesses is an appropriate device topreclude a witness from shaping his testimony to conform to thetestimony of those who already have testified. Skelton v. ChicagoTransit Authority, 214 Ill. App. 3d 554, 584 (1991). If a trialcourt possesses the authority to exclude witnesses to preventfabrication, it necessarily follows that the court also possessesthe authority to instruct witnesses not to discuss their testimonywith other witnesses. Smith, 299 Ill. App. 3d at 1053.

A violation of a court order excluding witnesses orprohibiting witnesses from discussing their testimony does notresult in the automatic exclusion of a witness's testimony. Peoplev. Wiatr, 119 Ill. App. 3d 468, 473 (1983). Instead, the trialcourt possesses the discretion to determine whether excluding awitness's testimony is appropriate, and we may not overturn thatdecision absent a clear abuse of discretion. People v. Trask, 167Ill. App. 3d 694, 706 (1988). The dominant inquiry is whether theinclusion or exclusion of the testimony would prejudice theaffected party. Wiatr, 119 Ill. App. 3d at 474. Also, where atrial court refuses to allow a witness to testify, the affectedparty must demonstrate that it was deprived of material testimonywithout its fault. Wiatr, 119 Ill. App. 3d at 474. The rationaleunderlying these rules is that the court should not punish a partyby depriving it of testimony material to its case where, withoutthe party's knowledge or fault, a witness violates a court order. People v. Johnson, 47 Ill. App. 3d 362, 369 (1977).

The State argues that the trial court abused its discretionbecause the scope of the order excluding witnesses was not clear. Also, the State contends that, even if the trial court properlyfound that the witnesses violated the order, the sanction for theviolation was inappropriate because there was no evidence thatallowing the two remaining State's witnesses to testify would haveprejudiced respondent.

We agree with the State that, because the scope of the trialcourt's order excluding witnesses was not clear, the trial court'sruling deprived an innocent party of material testimony. When atrial court determines that it is necessary to prohibit conductthat is not otherwise proscribed by statute or rule, it isimperative that the court's order be clear and that all concernedparties have an accurate understanding of its limitations. Smith, 299 Ill. App. 3d at 1054. If the trial court's order is unclear,any sanction entered for a perceived violation is an abuse ofdiscretion and subject to reversal. Smith, 299 Ill. App. 3d at1054; see also J. Corkery, Illinois Civil & Criminal Evidence