People v. Banks

JUSTICE McLAREN, 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, 295 Ill. App. 3d at 526-27 (defendant had “no control over” the circumstances that led to the compilation of an incomplete record and presented a “colorable need” for a verbatim transcript). Defendant conveniently mentions only the second step of the analysis, relating to “colorable need.” Defendant disregards the need to establish that he is not at fault for the absence of the missing evidence.

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, 60 Ill. 2d at 251-52; People v. Luke, 253 Ill. App. 3d 136, 140 (1993). The responsibility for preparation of the record is borne by the defendant; if the defendant is indigent, the financial burden of obtaining a transcript, not the administrative burden of preparing the record on appeal, is placed upon the State. See Luke, 253 Ill. App. 3d at 139 . The responsibility of providing the record for the appellate court to review or establishing a colorable need for the missing portion of the record remains on the defendant. See Luke, 253 Ill. App. 3d at 140 .

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, 181 Ill. App. 3d 355, 356 (1989). This court is entitled to have the issues clearly defined and to be cited pertinent authority; arguments that do not satisfy the requirements of Supreme Court Rule 341 (210 Ill. 2d R. 341) do not merit consideration on appeal. Trimble, 181 Ill. App. 3d at 356-57 . Defendant makes assertions but does not support them with citation to legal authority. Further, by failing to even acknowledge that lack of fault is part of the two-step analysis, defendant has failed to raise, let alone establish, his own lack of fault for failing to include the videotape in the record on appeal. Thus, defendant has waived the claim concerning the right to a meaningful review.

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.” 378 Ill. App. 3d at 865. The majority determines that defendant has not fulfilled either step. Unfortunately, there are several problems with the majority’s formulation and application of the two-step analysis.

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, 33 Ill. 2d 616 ; People v. Majka, 365 Ill. App. 3d 362 (2006); People v. Cunningham, 309 Ill. App. 3d 824 (1999); Ramos, 295 Ill. App. 3d 522 ; Luke, 253 Ill. App. 3d 136 ; Seals, 14 Ill. App. 3d 413 .

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, 33 Ill. 2d at 621 . The court then proceeded to determine if the missing record was necessary for meaningful review. Stark, 33 Ill. 2d at 621 . The majority here takes a retrogressive view of judicial hierarchy, wherein the appellate court decides the order in which the two-step test is cast. Apparently, the majority does not lack the temerity to disregard precedent of the supreme court. See Somers v. Quinn, 373 Ill. App. 3d 87, 99-100 (2007) (O’Malley, J., specially concurring).

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, 99 Ill. 2d 389, 391-92 (1984), posits:

“[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, 365 Ill. App. 3d 362 , and Mayer v. City of Chicago, 404 U.S. 189 , 30 L. Ed. 2d 372 , 92 S. Ct. 410 (1971), will apply.

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, 365 Ill. App. 3d 362 .

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’ (378 Ill. App. 3d at 874) to the other. Either can be addressed first and sometimes it is better to address both, just as in a Strickland analysis of ineffective assistance of counsel.” 378 Ill. App. 3d at 869. The analogy fails. I do not believe there is an instance where the second prong of the Strickland analysis was analyzed and then the first prong was revisited to determine if counsel was ineffective. The second-prong analysis invariably results in a finding of lack of prejudice, and deficiency is not revisited, as would be required in the majority of the scenarios involved with a determination of meaningful review. When the Strickland analysis skips the first step by presuming error, it does not apply a different set of presumptions in determining if prejudice arose. The determination of prejudice is not affected by the nature of the error. The prejudice prong does not apply a different set of presumptions depending upon the resolution of the first step. However, in this appeal, the lack of fault will cause the relaxation of the negative presumptions in Foutch. The merit analysis is dependent upon the resolution of the fault issue because fault will determine the correct set of presumptions to apply.

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, 103 Ill. App. 3d at 536. The court went on to point out that the defendant did not carry out his burden to preserve the record before the trial court. Thus:

“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.” 378 Ill. App. 3d at 870. The majority earlier claimed that Foutch is inapplicable because of what defendant argues rather than what defendant demonstrates. The majority fails to reconcile its rationale for the inapplicability of Foutch, based upon the arguments raised in Malley and the case before us, with what was actually demonstrated in Malley. The defendant in Malley argued prejudice because the missing record was necessary for consideration on appeal. The court applied the negative presumptions despite the defendant’s argument, because he did not demonstrate lack of fault for the missing record and the Foutch presumptions doomed his attempt to establish 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, 404 U.S. at 194 , 30 L. Ed. 2d at 378 , 92 S. Ct. at 414 , quoting Griffin, 351 U.S. at 20, 100 L. Ed. at 899, 76 S. Ct. at 591 (“A ‘record of sufficient completeness’ does not translate automatically into a complete verbatim transcript. *** [A] State ‘may find other means [than providing stenographic transcripts for] affording adequate and effective appellate review ***’ ”). All cited Illinois case law comports with this statement. Majka, decided in 2006, repudiates the allegedly suggested “per se” rule. Majka cites to Supreme Court Rule 323(c), which allows the substitution of a bystander’s report when “no verbatim transcript of the evidence of proceedings is obtainable.” 210 Ill. 2d R. 323(c); Majka, 365 Ill. App. 3d at 368 . Supreme Court Rule 323(d) also allows the parties to stipulate to an agreed statement of facts in lieu of a report of proceedings. See 210 Ill. 2d R. 323(d). Majka also cites to Hopping to refute the alleged per se rule:

“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. 378 Ill. App. 3d at 868. Also in Majka, lack of fault was established, the Foutch rule was suspended, and the presumptions in Mayer were used to consider the merits. In this case, the claim of meaningful review is vacuous. Defendant raises the issue of meaningful review but does not raise any specific issue the review of which would be affected by the lack of a complete record. In support of his claim of lack of meaningful review, defendant references only a piece of evidence missing from the record. Defendant neither raises nor attempts to cite an independent issue that would direct our attention, even if Foutch did not apply, to some portion of the record and some argument that might establish error. Favorable presumptions have little value when there is nothing to relate them to.

Defendant is guilty of circuitous logic resulting in “bootstrapping.” 1 He has claimed that he is entitled to a reversal. Why? Because the missing evidence was crucial. Why? Because the trial court viewed it. Why? Because it was crucial. If that is how a colorable need is established, then every time a piece of evidence is missing, there will be, ipso facto, a colorable need established. That has not been the law, under either Foutch or its exceptions as stated in Mayer and Majka. The majority is mistaken to conclude that this circuitous argument can be properly addressed by foreign jurisprudence.

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, 309 Ill. App. 3d 824, 830 (1999). The majority does not cite to authority for the proposition that we must or should address “suggestions,” especially those that the court raises sua sponte. As framed by defendant’s brief and his bootstrapping, this is not a case of first impression, and thus reference to foreign jurisprudence has little bearing upon the resolution of this alleged “suggestion.” See, e.g., Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 267 (2006) (a case involving a question of first impression, where the court examined foreign jurisprudence for enlightenment and direction and adopted the approach taken by California and New York).

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 378 Ill. App. 3d at 864. There is no need to go further. Ironically, the majority concludes its research of foreign jurisprudence with the following statement: “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 ***.” 378 Ill. App. 3d at 865. Illinois cases are controlling (see People v. Human, 331 Ill. App. 3d 809, 820 (2002)); foreign jurisprudence is not. See Giannini v. First National Bank of Des Plaines, 136 Ill. App. 3d 971, 980 (1985). To the extent that the majority’s statement equates the legal effect of foreign jurisprudence with that of Illinois case law, I disagree. I believe that the exposition on foreign jurisprudence is irrelevant, immaterial, and incompetent. There is nothing of legal significance to be gained by including the exposition in this disposition.

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.” 378 Ill. App. 3d at 865. In the conclusion, the majority reiterates the stage as establishing “that the videotape is material to his contentions on appeal.” 378 Ill. App. 3d at 870.

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, 377 Ill. App. 3d at 141-42; Majka, 365 Ill. App. 3d at 370 ; Cunningham, 309 Ill. App. 3d at 830 ; Ramos, 295 Ill. App. 3d at 526 ; Luke, 293 Ill. App. 3d at 139; In re Dawn H., 281 Ill. App. 3d 746, 753 (1996); Malley, 103 Ill. App. 3d at 536; People v. Armstrong, 43 Ill. App. 3d 586, 597 (1976); People v. Robinson, 25 Ill. App. 3d 52, 59 (1975); Seals, 14 Ill. App. 3d at 414 .

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 (378 Ill. App. 3d at 866 (eight times), 867 (one time)). The correct second stage should be, “the defendant must establish a colorable need for the item missing from the record based upon the issue(s) raised on appeal.” This phrase means issue(s) other than the sole issue raised herein, i.e., that meaningful review is impossible simply because there is something missing. There must be a context, or the defendant will merely be bootstrapping, as was done here.

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.” 378 Ill. App. 3d at 862. The majority is more emphatic wherein it relates, “Defendant also explicitly argues that the evidence was insufficient to prove his guilt of DUI beyond a reasonable doubt.” 378 Ill. App. 3d at 867.

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.” 378 Ill. App. 3d at 868. I submit that we are compelled by supreme court rule to refuse to address an issue not raised by defendant. The definition of “integral” is “essential to completeness.” Webster’s Third New International Dictionary 1173 (1993). The mention of guilt in defendant’s brief is related only to the issue of whether there is a colorable need to make further inquiry. The mention of reasonable doubt in the postjudgment motion does not qualify as an explicit statement regarding whether defendant was not guilty. Mentioning guilt without setting it forth in the statement of issues or points and authorities and without developing any argument concerning lack of guilt does not qualify as explicitly raising an issue for appellate review. Defendant does not seek a review of the determination of his guilt. If he did, then what element or elements are unproven, and where in (or out of) the record is the evidence of innocence? The issue of guilt was not properly raised as the basis for establishing a “colorable need,” nor was it presented as a separate issue that we are compelled to address. If the issue were properly raised, it might have cured defendant’s circuitous arguments. However, it was not raised. If defendant has raised the issue of guilt, he has done nothing more than dump this “integral part” of the issues on us in violation of established case law and rules of appellate procedure. Assuming, arguendo, that the issue is an “integral part” of the colorable-need test, it is waived, and we are compelled not to address it:

“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, 353 Ill. App. 3d 784, 788 (2004) (McLaren, J., specially concurring). The burden is not on the State to establish its lack of fault or to establish fault on the part of the defendant. It is the burden of the defendant to establish lack of fault on his part. This affidavit neither states nor implies that defendant is lacking in fault. The majority has submitted these non sequiturs in order to rationalize its compulsion to address the merits of this unstated, unargued, and undeveloped issue.

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, 183 Ill.2d 366, 387 (1998).

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, 351 U.S. 12, 17-19 (1956). Moreover, “[t]he State must furnish a record of sufficient completeness to permit proper consideration of [the defendant’s] claims.” People v. Luke, 323 Ill. App. 3d 136 , 139 (1st Dist. 1993) (citing Draper v. Washington, 372 U.S. 487, 499 (1963)). Accord, Mayer v. City of Chicago, 404 U.S. 189, 194 (1971); People v. Hopping, 60 Ill. 2d 246, 251-252 (1975); People v. Johnson, 327 Ill. App. 3d 252, 258 (4th Dist. 2002); People v. Malley, 103 Ill. App. 3d 534, 536 (3rd Dist. 1982).

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, 404 U.S. at 194 ; Hopping, 60 Ill. 2d at 253 ; People v. Ramos, 295 Ill. App. 3d 522, 525-526 (1st Dist. 1998); Luke, 323 Ill. App. 3d at 139. However, that will not always be the case. “[W]here the grounds on appeal... make out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript, or an ‘alternative’ will suffice for an effective appeal on those grounds.” Mayer, 404 U.S. at 194 . Accord Ramos, 295 Ill. App. 3d at 526 ; People v. Seals, 14 Ill. App. 3d 413, 414 (1st Dist. 1973); Luke, 323 Ill. App. 3d at 139; Malley, 103 Ill. App. 3d at 536 .

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, 295 Ill. App. 3d at 526 {reversed and remanded for new trial because post-trial claim of insufficiency of evidence presented colorable need for a verbatim transcript in order to afford defendant constitutional right to direct appeal)-, Seals, 14 Ill. App. 3d at 414 {reversed and remanded for new trial because record reveals colorable need for a verbatim transcript to afford the defendant effective appellate review of his claims). See also People v. Stark, 33 Ill.2d 616 (1966) {remanded for new hearing on defendant’s motion to suppress confession where defendant raised suppression issue on appeal but the transcript was unavailable through no fault of defendant). The missing video is the equivalent of a missing transcript. Meaningful review requires its inclusion in the record because the trial judge relied on it. (C26)

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.

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).