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filed:  January 24, 2002

NO. 4-00-0719

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

I. BACKGROUND

In July 1999, defendant was charged with attempt (firstdegree murder) and aggravated battery of Jerry Rulo. 720 ILCS5/8-4(a), 9-1(a)(1), 12-4 (West 1998). In the same month,defendant's attorney filed a motion for discovery pursuant toSupreme Court Rules 412(a) and (c) (134 Ill. 2d Rs. 412(a), (c)),requesting:

"1. The names and addresses of persons whomthe State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oralstatements, and a list of memoranda reportingor summarizing statements and disclose [sic]of same to defense counsel, if found to besubstantially verbatim reports of oral statements;

2. Any written or recorded statements andthe substance of any oral statements made bythe accused or by a co[]defendant and a listof witnesses to the making and acknowledgmentof such statements;

3. Any reports or statements of experts madein connection with the particular case, including results of physical or mental examinations and [of] scientific tests, experiments or comparisons;

4. Any books, papers, documents, photographsor tangible objects which the prosecutingattorney intends to use in the hearing ortrial;

5. Any record of prior criminal convictions,which may be used for impeachment of personswhom the State intends to call as witnesses[at] the hearing or trial;

6. Any material or information within itspossession or control which intends [sic] tonegate the guilt of the accused as to theoffense charged."

Defense counsel also requested that blood found on thealleged weapon, a breaker bar, be tested for DNA. The Statefiled a petition for an order requiring defendant to submit toblood testing pursuant to Rule 413(a)(vii) (134 Ill. 2d R.413(a)(vii)) and provided the results of the DNA testing todefendant in February 2000. The results indicated that the bloodon the breaker bar belonged to the victim, Jerry Rulo, and notdefendant.

In March 2000, new defense counsel, Mr. O'Gara and Mr.Stobbs, entered appearances and filed a motion for continuance. This was defendant's fifth continuance. In April 2000, newdefense counsel filed a motion for pretrial discovery requestingessentially the same material and information sought in defendant's July 1999 motion for discovery. Specifically:

"1. A list of the names and known addressesof all witnesses the State intends to call attrial.

2. A copy of any written confession made bythe [d]efendant together with a list of witnesses to its making and acknowledgment.

3. A list of witnesses to the making of anyoral confession by the [d]efendant herein.

4. Any physical evidence relating to thiscase which is in the State's possession.

5. Any material or information known to theState which tends to negate the guilt of the[d]efendant as to the offense charged in theabove entitled case or which would tend toreduce his punishment should he be convicted.

6. A list of the day, time, and place of thealleged incident."

The State provided new defense counsel with copies ofall discovery materials provided in response to the discoveryrequest of the previous defense counsel. Included in thatoriginal discovery was the DNA report from the Illinois StatePolice crime lab (crime lab), which identified the blood on thebreaker bar as belonging to the victim. Over the next severalmonths, the State filed nine more supplemental discovery answers. In the April 2000 supplemental response, the State listed MichaelBrown of the Illinois State Police Metro East Forensic Lab as apotential witness. Brown prepared the DNA report. The recordindicated that Brown was in training at the time of the DNAtesting in January 2000. The record also reflected that onFebruary 14, 2000, Brown signed the DNA report as a forensicscientist. Following one more continuance, over the State'sobjection, the cause was set for trial by jury on August 14,2000.

In July 2000, defendant filed his answer to the State'sdiscovery request. The answer indicated that defendant's investigator met with crime lab witnesses, including Michael Brown. The record indicates that the investigator did not ask him anyquestions regarding the DNA report.

On July 17, 2000, defendant filed a motion for additional discovery of specific DNA information, requesting, inpart: 

"(2) Telephone logs, log sheets, work sheetsor any other written memoranda produced by orfor forensic laboratory technicians or anyother expert or witness made in connectionwith tests, analysis, blood[-]alcoholtests/results or studies performed on anyphysical evidence sought to be used by theState in this cause.

(3) All maintenance records, operationalmanuals, records of diagnostic tests andservices performed on any and all laboratoryequipment, machines and instruments used toexamine, analyze[,] or study any physicalevidence in this cause.

(4) The names of tests performed by forensiclaboratory technicians or any other expert orwitness and the results thereof, togetherwith the types of machines or other instruments used in the analysis of any and allphysical evidence in this cause.

* * *

(6) Any photographs or other depictions ofisoelectic focusing plates used in the analysis of any blood, semen[,] or other fluidsfound at the crime scene in this cause aswell as photos or other depictions of slidesused to analyze hair or other fibers, as wellas any scientific evidence used in the analysis of DNA.

* * *

(8) Evidence showing the chain of custodyfor any exhibit the State intends to introduce [at] trial."

Defendant also requested access to all physical evidence fortesting, measurement, observation, and/or analysis. On the sameday the motion was filed, the State responded to defendant'sdiscovery request stating the information requested was beyondthe scope of mandatory discovery. On July 28, 2000, defendantfiled a motion to compel discovery.

At the hearing on July 31, 2000, the State informed thetrial court that the information sought was in the possession ofthe crime lab. The State further informed the trial court thatthe crime lab would not release the information to the Statewithout a court order. The trial court granted defendant'smotion to compel additional discovery and ordered the crime labto release the information requested. The court order grantingthe motion to compel noted there was no opposition from theState. The State received the information from the crime lab onAugust 7, 2000, and the defendant received it on August 8, 2000. On August 9, 2000, defendant filed a motion in limine, requestingsuppression of all DNA evidence.

Following a hearing on August 14, 2000, the trial courtgranted defendant's motion in limine. The trial court found themandatory disclosure provision of Rule 412 required the State todisclose to the defendant all supporting documentation relativeto the DNA report and that Rule 412 further required the State toget the court order for release of the supporting documentationfrom the crime lab.

Later that same day, the trial court heard the State'smotion to reconsider. The State argued that the defendant hadbeen in possession of the DNA report since February 2000, and hehad not exercised due diligence in securing the supportingdocumentation prior to trial. Finally, the State argued that ithad not willfully violated any discovery rules; rather, there hadbeen a question of interpretation as to what Rule 412(a)(iv)required. Therefore, the State asked for the trial court togrant a continuance to allow defendant's counsel time to reviewthe evidence, rather than to exclude all DNA evidence.

The defendant argued he would be prejudiced because theState was forcing a continuance preventing his right to a fairand speedy trial and because the State would have the evidenceretested by a scientist and not a trainee. The trial courtdenied the motion to reconsider. The State then filed a certificate of impairment and notice of interlocutory appeal. Wereverse.

II. ANALYSIS

The State argues the trial court erred when it granteddefendant's motion in limine. Specifically, the State arguesthat the trial court erred in ruling that (1) the mandatorydisclosure requirement of Rule 412 required the disclosure ofsupporting documentation relative to the DNA report, (2) theState was responsible for obtaining a court order requiring thecrime lab to disclose supporting documentation relative to theDNA report, and (3) suppressing the DNA evidence rather thangranting a continuance.

A. Standard of Review

The State may take interlocutory appeal of a pretrialsuppression order whenever the prosecutor certifies to thecircuit court that the suppression substantially impairs theState's ability to prosecute the case. People v. Ingram, 316Ill. App. 3d 319, 324, 736 N.E.2d 218, 223 (2000). The interpretation of a Supreme Court Rule, like a statute, is a question oflaw that the appellate court reviews de novo. People v. Drum,194 Ill. 2d 485, 488, 743 N.E.2d 44, 46 (2000).

B. Disclosure Pursuant to Supreme Court Rule 412(a)(iv)

The State argues that the trial court erred in rulingthe mandatory disclosure provisions of Rule 412 required thedisclosure of supporting documentation relative to the DNAresults. The State contends that the plain language of Rule412(a)(iv) required the State to disclose only reports andresults. Therefore, the State argues that the defendant'srequest for all supporting documentation relative to the DNAreport was beyond the scope of mandatory disclosure.

Supreme Court Rule 412 addresses disclosures by theState to the accused and states, in part:

"(a) Except as is otherwise provided inthese rules as to matters not subject todisclosure and protective orders, the Stateshall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:

* * *

(iv) any reports or statementsof experts, made in connection withthe particular case, includingresults of physical or mental examinations and of scientific tests,experiments, or comparisons, and astatement of qualifications of theexpert." 134 Ill. 2d R.412(a)(iv).

In interpreting a supreme court rule, the court shouldfirst look to the plain language of the rule and consider therule in its logical context; if the rule is then ambiguous, thecourt may consider other sources, including c0ommittee comments,to ascertain the purpose of the rule. Scattered Corp. v. MidwestClearing Corp., 299 Ill. App. 3d 653, 657-58, 702 N.E.2d 167, 170(1998).

The plain language of Rule 412(a)(iv) states thatreports made in connection with a case, including results ofexaminations, tests, experiments, or comparisons, are to bedisclosed to the defendant upon written motion by same. Rule412(a)(iv) cannot be read to include telephone logs, log sheets,work sheets, or any other written memoranda. While we need notlook beyond the plain language of Rule 412(a)(iv), we note thatthe committee comments clearly address the production of onlyreports or results. See 134 Ill. 2d R. 412(a)(iv), CommitteeComments.

The State provided original defense counsel with a copyof the DNA report when it was completed in February 2000. Inaddition, defendant acknowledged that he received another copy ofthe DNA report in April 2000 when the State provided copies tonew defense counsel of all previously disclosed materials. Thus,by producing the DNA report promptly at the point of completionand when defendant retained new counsel, the State complied withthe mandatory disclosure requirements of Rule 412(a)(iv), and thefailure to produce the supporting documentation was not a violation of the rule.

C. Specific Discovery Requests and Discretionary DisclosurePursuant to Supreme Court Rules 412(g) and (h)

In addition to requirements for mandatory disclosure,Rule 412 allows a defendant to make specific requests for additional disclosure of relevant information and for the trial courtto order, upon a showing of materiality, such discretionarydisclosures. Rule 412(g) states:

"Upon defense counsel's request and designation of material or information which would bediscoverable if in the possession or control ofthe State, and which is in the possession or control of other governmental personnel, the Stateshall use diligent good-faith efforts to causesuch material to be made available to defensecounsel; and if the State's efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of thecourt, the court shall issue suitable subpoenas ororders to cause such material to be made availableto defense counsel." 134 Ill. 2d R. 412(g).

Rule 412(h) provides:

"Upon a showing of materiality to thepreparation of the defense, and if the request is reasonable, the court, in its discretion, may require disclosure to defensecounsel of relevant material and informationnot covered by this rule." 134 Ill. 2d R.412(h).

Since mandatory disclosures pursuant to Rule 412(a)(iv) do notinclude the notes, work sheets, and all supporting documentationrelative to the DNA results, the State was not required todisclose such material until the defendant made a specificrequest for same and until the trial court ordered such disclosure pursuant to Rule 412(h). In July 2000, defendant made aspecific request for the supporting documentation relative to theDNA report, and the trial court ordered the discovery pursuant toits discretionary authority under Rule 412(h) on July 31, 2000. On August 7, 2000, the State received the information from thecrime lab, and on August 8, 2000, defendant received the information. Therefore, the State fulfilled its obligation to disclosethis additional information once specifically requested and courtordered pursuant to Rule 412(h).

D. State's Responsibility Pursuant to
Supreme Court Rule 412(f)

Defendant argues that at the point he requested thesupporting documentation for the DNA report, the State wasrequired to get the court order for its release from the crimelab pursuant to Supreme Court Rule 412(f) (134 Ill. 2d R. 412(f))and Kyles v. Whitley, 514 U.S. 419, 437, 131 L. Ed. 2d 490, 508,115 S. Ct. 1555, 1567 (1995). The State acknowledged that Rule412(f) placed upon it the responsibility of ensuring informationflows between itself and investigative personnel within itspossession or control. The State further acknowledged that theofficers and personnel of the crime lab were "other governmentalpersonnel" within the meaning of Rule 412(g) (134 Ill. 2d R.412(g)). See People v. Curtis, 48 Ill. App. 3d 375, 383, 362N.E.2d 1319, 1325 (1977). However, the State argues that sincethe supporting documentation for the DNA report was beyond thescope of mandatory disclosure pursuant to Rule 412(a)(iv), thematerial was not discoverable in response to a general discoveryrequest. Therefore, the State argues that it was the defendant'sobligation to follow up on the State's production of the DNAreport in February and April 2000 with a specific request for thesupporting documentation.

Supreme Court Rule 412(f) provides:

"The State should ensure that a flow ofinformation is maintained between the variousinvestigative personnel and its office sufficient to place within its possession or control all material and information relevant tothe accused and the offense charged." 134Ill. 2d R. 412(f).

The committee comments to Rule 412(f) state:

"Paragraph (f) is designed to deal with theproblem of the extent to which the State can beexpected to know of the existence of material orinformation which it is obligated to disclose. Indischarging its duties it should know, or seek toknow, of the existence of material or informationat least equal to that which it should disclose todefense counsel." (Emphasis added.) 134 Ill. 2d R.412(f), Committee Comments, at 349.

Based upon a reading of the rule and the committeecomments, the State's role pursuant to Rule 412(f) is to know ofthe information and facilitate the flow of it, not to monitor andcontrol it. See People ex rel. Fisher v. Carey, 64 Ill. App. 3d239, 242, 380 N.E.2d 1150, 1152 (1978), aff'd in part & rev'd inpart on other grounds, 77 Ill. 2d 259, 396 N.E.2d 17 (1979). Infact, this is also a position consistent with Kyles.

In Kyles, the State failed to turn over to defendantmandatory disclosure information required under Rule 412(c)(information which tends to negate the guilt of the accused), andthe defendant was unaware of its existence. In discussing theprosecutor's responsibility for the failure to disclose, theUnited States Supreme Court said:

"[The] prosecutor has a duty to learn of anyfavorable evidence known to the others actingon the government's behalf in the case ***. *** [T]he prosecution's responsibility forfailing to disclose known, favorable evidencerising to a material level of importance isinescapable." (Emphasis added.) Kyles, 514U.S. at 437-38, 131 L. Ed. 2d at 508, 115 S.Ct. at 1567-68.

Unlike Kyles, here the failure to fulfill requirements of mandatory disclosure is not at issue, and there was no lack ofknowledge as to the existence of the information sought by thedefendant.

The State fulfilled its duty under Rule 412(f) andKyles when it disclosed the DNA report in February and April2000. The DNA report was the only information in the crime lab'spossession that was subject to mandatory disclosure pursuant toRule 412(a). Moreover, the State did not act to impede the flowof information from the crime lab to the State or defendant. Thedefendant was aware of the existence of the supporting documentation relative to the DNA report and could have specificallyrequested it at any time. The defendant acknowledged his awareness that the supporting documentation existed at the hearing onthe motion in limine. Defense counsel stated that they werelooking through the discovery materials in June 2000 and wondering why they still had not seen the crime lab notes and othersupporting documentation on the DNA.

Finally, the State was not required to obtain a subpoena for the release of the supporting documentation. Rule412(h) is clear that in a request for nonmandatory discovery, itis the defendant's responsibility to establish the reasonableness, relevance, and materiality of the information sought. After such a showing by the defense, the court may require suchdiscretionary disclosure. In this case, the defendant established the materiality of the requested evidence, the courtordered its production, and the information was provided to thedefendant within days following the Rule 412(h) order by thetrial court. It is not the State's burden to come forward andestablish the materiality of discretionary evidence and tosubpoena the trial court for the release of it for the defense.

E. Denial of Motion for Continuance

At the hearing on the State's motion to reconsider thetrial court's grant of defendant's motion in limine, the Stateasked the court to grant a continuance to allow the defendanttime to review the complete DNA documentation, rather thanexcluding all DNA evidence. In objecting to the State's requestfor a continuance, the defendant argued a continuance wouldprejudice him by delaying his right to a speedy trial and becausethe State would have the DNA tested by another forensic scientistsince Michael Brown was a trainee when the testing was done.

When reviewing the denial of a continuance, this courtmust decide whether the trial court abused its discretion inruling on the requested continuance. People v. Grimm, 74 Ill.App. 3d 514, 516, 392 N.E.2d 1138, 1140 (1979). A continuance isthe preferred sanction if the granting thereof would be effectiveto protect the defendant from surprise or prejudice. People v.Aguilar, 218 Ill. App. 3d 1, 9-10, 578 N.E.2d 109, 115 (1991). Exclusion of evidence is a last resort, demanded only where arecess or a continuance would be ineffective. People v. Nelson,92 Ill. App. 3d 35, 45, 415 N.E.2d 688, 696 (1980).

In this case, the trial court should have granted theState's motion for continuance. Defendant claimed that he wassurprised to learn of Michael Brown's status as a trainee at thetime of the DNA testing. This information was disclosed todefendant for the first time as part of the supporting documentation on August 8, 2000. Defendant further asserts that he hasbeen prejudiced by delaying his right to a speedy trial.

In response, the State argues that defendant's threemotions for discovery and the motion to compel never requestedthe qualifications of the State's experts. The State furtherargues that it was not required to disclose evidentiary weaknesses in its case. In accordance with Rule 412(a)(i), the Statemust disclose, upon written request of the defendant, the namesand addresses of the State's witnesses, including their relevantwritten or recorded statements, memoranda containing verbatimreports of their oral statements, and a list of memoranda reporting or summarizing their oral statements. 134 Ill. 2d R.412(a)(i). Rule 412(a)(iv) requires, upon written request by thedefendant, a statement of qualifications of the expert. 134 Ill.2d R. 412(a) (iv).

A review of the record reveals that the State diddisclose the names and addresses, including statements, etcetera, of its expert witnesses, and defendant did not request astatement of qualifications for the State's expert witnesses. Further, we agree with the State that Rule 412 does not requirethe disclosure of evidentiary weaknesses. People v. Davis, 106Ill. App. 3d 260, 262, 435 N.E.2d 838, 841 (1982). Therefore,the State cannot be held accountable for any surprise of defendant when this information was learned on August 8, 2001.

Defendant also argues on appeal that the supportingdocumentation relative to the DNA report was material to thepreparation of defendant's case. Since the information wasproperly disclosed only after court order, defendant would havehad to seek another continuance to prepare a defense to the DNAevidence. Defendant, by appellee brief at 5, appears to concedethis point, stating that should we find the State properlytendered the information, then defendant would need "time forprocedures and methodology to be reviewed and questioned and timeto obtain an expert witness to refute any inaccuracies in eitherthe DNA testing [or] the conclusions drawn therefrom." (Emphasisadded.)

Defendant here secured a court order for the supportingdocumentation to the DNA report 14 days before the trial was setto begin. The State complied with the order and respondedtimely. There was no bad faith on the part of the State, and theState did not object to the trial court's granting of the motionto compel. Since we find that the State violated no discoveryrequirements, it was timely in responding to the court's ordercompelling additional discovery, and a continuance will notprejudice defendant, the trial court erred in not granting thecontinuance.

F. Statutory Amendment Regarding Discovery of DNA Evidence

Effective March 1, 2001, subsequent to the filing ofthis appeal, the supreme court rules were amended to requiregreater disclosure of DNA evidence. New Rule 417 requiresdisclosure of all relevant materials relating to DNA, and specifically included in the list of such materials are "all reports,memoranda, notes, phone logs, contamination records, and datarelating to the testing performed in the case." 188 Ill. 2d R.417 (b)(i) (effective March 1, 2001, except when in the opinionof the trial, appellate, or supreme court, the application of thenew rule is not feasible in a particular case pending at the timethe rule becomes effective, would not be feasible, or would workan injustice, in which case the former procedures apply). Thereare additional requirements for disclosure of quality controlguidelines, procedure manuals, protocols, quality assuranceguideline, and other similar materials. We note that new Rule417 covers disclosure of the items defendant sought in his motionfor additional discovery.

The rules of statutory construction apply to supremecourt rules. 134 Ill. 2d R. 2. An amendment gives rise to apresumption that the amendment was intended to change the law. Garibaldi v. Applebaum, 194 Ill. 2d 438, 451, 742 N.E.2d 279, 286(2000). Every amendment is presumed to have a purpose, and acourt must consider the language of the amendment in light of theneed for it and the purpose it serves. People v. Allen, 313 Ill.App. 3d 842, 846, 730 N.E.2d 1216, 1220 (2000).

The committee comments to Rule 417 state the purpose ofthe rule is to require standardized disclosures and to make therequirements for those disclosures less burdensome for laboratorypersonnel. 188 Ill. 2d R. 417, Committee Comments. The supremecourt appears to have enacted this new rule to alleviate some ofthe difficulties both the State and defendant experienced in thiscase. The supporting documentation to DNA results is now included in mandatory disclosure by the proponent of such evidence,and therefore a specific request for same is no longer required. Further, the laboratory must now provide this information pursuant to this rule, alleviating the need to obtain a court orderfor same.

Finally, Rule 417 provides that it is effective immediately, except when "the application of the new rule in a particular case pending at the time the rule becomes effective would notbe feasible or would work an injustice, in which case formerprocedures would apply." 188 Ill. 2d R. 417. We find that,given the discovery rules as they existed prior to the enactmentof Rule 417, the State took the only position it had in regard tothe supporting documentation. Further, the trial court laterordered production of the materials defendant requested, anddefendant has received those materials. It would, therefore, beprejudicial to apply the new rule to affirm the ruling againstthe State here.

III. CONCLUSION

For the reasons stated above, we reverse the trialcourt and remand.

Reversed and remanded.

KNECHT and STEIGMANN, JJ., concur.