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No. 2--03--1271

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Defendant, William Camp, was charged with driving under the influence of alcohol (DUI)(625 ILCS 5/11-501(a)(2) (West 2002)). After discovery began, defendant moved to dismiss thecharge, arguing that he could not receive a fair trial because the State had lost a videotape of his fieldsobriety tests. The trial court dismissed the charge with leave to reinstate should the tape berecovered. The State appeals (see188 Ill. 2d R. 604(a)(1)), contending that the dismissal was anexcessive sanction for the inadvertent loss of the tape. We agree. Therefore, we reverse thejudgment and remand the cause.

On November 3, 2002, defendant was charged with DUI. Although the arresting officer'ssworn report stated that defendant had had a blood- or breath-alcohol content (BAC) of 0.93, thecomplaint charged defendant with DUI (625 ILCS 5/11-501(a)(2) (West 2002)) but not with drivingwith a BAC of 0.80 or more (625 ILCS 5/11-501(a)(1) (West 2002)). On November 8, 2002,defendant filed a general motion for discovery. On August 23, 2003, defendant moved to quash hisarrest and suppress evidence (motion to quash), alleging that the arresting officer lacked reasonablesuspicion to stop him or probable cause to arrest him for DUI.

On September 24, 2003, while his motion to quash was pending, defendant moved to dismissthe complaint. Defendant did not invoke a statutory ground for dismissal (see 725 ILCS 5/114-1(a)(West 2002)) but relied on due process. Defendant's motion, supported by the affidavit of hisattorney, Byron Sloan, alleged as follows. Through discovery, defendant became aware of avideotape of him performing field sobriety tests immediately before his arrest. On April 7, 2003,defendant learned the State's Attorney's office had the tape. That day, the tape was released todefendant and Sloan. After viewing the tape, they believed that it was essential to their case becauseit showed defendant performing well on the tests under difficult conditions, in contradiction to thearresting officer's report. That same day, defendant returned the tape to the State's Attorney's office. However, after April 7, 2003, he was told that the State could not locate the tape.

According to defendant, allowing the State to proceed with the case would violate dueprocess because he would be unable to present evidence that was crucial to both his motion to quashand his defense at trial. At the hearing on the motion, defendant acknowledged that the State had notacted in bad faith. However, he asserted that, under People v. Newberry, 166 Ill. 2d 310 (1995), badfaith was not needed to establish a due process violation. Defendant maintained that the tape wasimportant because it showed that he had been driving properly before he was stopped, thussupporting his motion to quash, and it portrayed him performing the field sobriety tests well. Defendant reasoned that, without the tape to use as evidence at trial, he would have to rely solely onhis own testimony to rebut the officer's account of the field sobriety tests.

Assistant State's Attorney Michael Myzia responded that, after defendant filed his motion toquash, Myzia obtained the case file and tried to find the videotape. Neither Myzia nor the otherassistant State's Attorney involved in this case had viewed the tape, and they had no idea of itscontents or whereabouts. Myzia contended that Newberry was distinguishable because, unlike thedrugs that were destroyed in Newberry, the tape itself did not give rise to the State's case. Also, heurged, the court could impose a sanction short of dismissal, such as instructing the jury that it could"take the disappearance of evidence in a manner disadvantageous to the prosecution."

The trial court agreed with defendant, reasoning that the videotape was crucial because itdirectly depicted what happened, whereas testimony would be based on memory and susceptible tothe witness's bias. The trial court dismissed the charge without prejudice and with leave to reinstateif the tape became available. The State timely appealed.

On appeal, the State argues that dismissal of the charge was improper because going to trialwithout the lost tape would not deny defendant due process. Defendant has not filed an appellee'sbrief. We may not reverse the judgment summarily merely because the appellee has not filed a brief. First Capitol Mortgage Co. v. Talandis Construction Corp., 63 Ill. 2d 128, 130 (1976). However,we need not serve as an advocate for the appellee or search the record in order to sustain thejudgment. Talandis, 63 Ill. 2d at 133. If the issue is not easily decided, we may reverse the judgmentif the appellant's brief makes a prima facie case for error and the brief's contentions find support inthe record. In re Goose Creek Drainage District No. 1, 307 Ill. App. 3d 82, 83-84 (1999). Weconclude that the State has made a prima facie case for error.

A trial court has the authority to dismiss a charge when the failure to do so would deprive thedefendant of due process or result in a miscarriage of justice. Newberry, 166 Ill. 2d at 314. Dismissalmay be appropriate under this standard when the State has destroyed evidence, even absent bad faith. Thus, in Newberry, the police seized what appeared to be cocaine from the defendant. After thesubstance tested negative, the defendant was charged with possessing a look-alike substance. However, a second drug test was positive. The State then indicted the defendant for possessingcocaine and several closely related offenses and dismissed the look-alike substance charge. After thedefendant filed a general discovery request, he learned that the police had mistakenly destroyed thealleged cocaine. On the defendant's motion, the trial court dismissed the indictments. Newberry, 166Ill. 2d at 312-13.

The supreme court affirmed the trial court's decision. The court held that, even absent badfaith, trying the defendant would deny him due process because the destroyed evidence was "essentialto and determinative of the outcome of the case." Newberry, 166 Ill. 2d at 315. That was becausethe defendant could not be convicted of the possession charges without proof of the content of thesubstance and, conversely, could not hope to exonerate himself without a chance to have his ownexperts examine the substance. Newberry, 166 Ill. 2d at 315.

The court distinguished Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct.333 (1988), which held that police did not deny the defendant due process by inadvertently destroyingevidence that might have aided him. The Newberry court observed first that, in Youngblood, theCourt required a showing of bad faith because the evidence that was destroyed had no more thanspeculative value to either the State or the defendant. Newberry, 166 Ill. 2d at 315; see Youngblood,488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. The court observed second that in the casebefore it, unlike in Youngblood, the evidence was destroyed after the defendant had requested it indiscovery. Thus, the State had been on notice that it needed to preserve the evidence. Newberry,166 Ill. 2d at 317.

Aside from relying on due process, the supreme court upheld the dismissal of the charge asa proper sanction for the State's discovery violation. The court observed that, under Supreme CourtRule 415(g)(i) (134 Ill. 2d R. 415(g)(i)), a trial court may impose appropriate sanctions where theState fails to meet its discovery obligations, even absent bad faith. Newberry, 166 Ill. 2d at 317-18. Because the evidence that was destroyed was "pivotal," the court held that the trial court did notabuse its discretion in dismissing the charge. Newberry, 166 Ill. 2d at 318.

We have applied Newberry to uphold dismissals on due process grounds where the Statedestroyed evidence that was essential or outcome determinative. In People v. Crowder, 323 Ill. App.3d 710 (2001), the defendant was charged with two weapons offenses. After receiving a discoveryrequest for the gun on which the charges were based, the State lost the gun. The trial court dismissedthe charges. We affirmed, observing that the key issue was whether the gun was actually a firearmand not, e.g., a toy or inoperable replica. Crowder, 323 Ill. App. 3d at 712. Thus, the gun wasessential to the case, and the defendant had no realistic hope of exonerating himself unless his expertscould examine it. Crowder, 323 Ill. App. 3d at 712; see also People v. Coleman, 307 Ill. App. 3d930, 934 (1999) (dismissal proper after State inadvertently lost or destroyed alleged controlledsubstance that defendant had sought in discovery).

The State argues that this case is distinguishable from Newberry, Crowder, and Colemanbecause, unlike the physical evidence in those cases, the videotape in this case was not essential oroutcome determinative. We agree. Although the videotape may be important to defendant, and itsloss may prejudice him, the tape itself did not give rise to the charge against defendant. The chargeof DUI is not premised on the existence of the videotape but on certain events, about which thevideotape is simply one source of evidence, albeit a potentially important one. Therefore, the factsof this case do not fit the extreme circumstances of the cases that we have cited. We conclude thatthe State has established a prima facie case of error and that the trial court erred in holding that dueprocess required it to dismiss the charge of DUI.

While seeking the reversal of the order dismissing the charges, the State concedes that the lossof the tape was a discovery violation for which sanctions are appropriate. The trial court based itsruling solely on due process and thus did not consider what sanctions would be proper under thediscovery rules. This is primarily a question for the trial court, which has broad discretion to imposesanctions that are proportionate to the magnitude of the discovery violation. Newberry, 166 Ill. 2dat 317-18; People v. Koutsakis, 255 Ill. App. 3d 306, 314 (1993). However, as we have held thatthe loss of the tape is less serious than the loss of the evidence in Newberry, Crowder, and Coleman,we also hold that the dismissal of the charge would be disproportionate to the State's discoveryviolation. Nonetheless, the trial court may consider a variety of less drastic options. These includeinstructing the jury that the absence of the videotape requires an inference that the tape's contents arefavorable to defendant. See Thorne v. Department of Public Safety, 774 P.2d 1326, 1331-32 (Alaska1989) (imposing similar remedy on remand to hearing officer in DUI case). On remand, the trialcourt is to consider the appropriate sanction under Rule 415(g)(i) for the State's discovery violation.

The judgment of the circuit court of Ogle County is reversed, and the cause is remanded withdirections.

Reversed and remanded with directions.

O'MALLEY, P.J., and HUTCHINSON, J., concur.