People v. Russell ( 2008 )

No. 3--06--0264
_________________________________________________________________
Filed October 2, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 9th Judicial Circuit,
) McDonough County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 04--DT--256
)
MARK D. RUSSELL, ) Honorable
) Larry W. Heiser,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________
A jury found the defendant, Mark D. Russell, guilty of
driving with a blood alcohol content of 0.08 or greater (625 ILCS
5/11--501(a)(1) (West 2004)) and driving under the influence of
alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 2004)). The trial
judge entered judgment only on the DUI count (625 ILCS 5/11--
501(a)(2) (West 2004)) and sentenced defendant to one year of
conditional discharge along with various fines and fees. On
appeal, the defendant argues that the court erred by (1) denying
his motion for expert witness fees; (2) conducting jury voir dire
off the record in violation of Illinois Supreme Court Rule
608(a)(9) (210 Ill. 2d R. 608(a)(9)); and (3) admitting hearsay
documents in evidence in violation of the confrontation clause of
the United States Constitution (U.S. Const., amend. VI), under
the holding of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d
177, 124 S. Ct. 1354 (2004). We affirm.
I. BACKGROUND
On September 12, 2004, the State charged the defendant by
traffic citations with having committed both (1) driving with a
blood alcohol content of 0.08 or greater (625 ILCS 5/11--
501(a)(1) (West 2004)); and (2) DUI (625 ILCS 5/11--501(a)(2)
(West 2004)). At the trial, which took place in 2006, Bushnell
police officer Jeffrey Borders testified that he stopped the
defendant's vehicle for speeding. According to Borders,
defendant exhibited indicia of alcohol consumption. Borders
asked defendant to perform field sobriety tests. After the
defendant failed the tests, Borders arrested him and transported
him to the police station. At the station, Borders administered
a breath test to the defendant, using the police department's
"Intoxilyzer" brand breath-testing machine. Defendant's breath
sample registered as 0.162.
A. Expert Witness Fees
Prior to trial, the defendant filed a motion for expert
witness fees, citing "725 ILCS 5/113-3" (725 ILCS 5/113--3(d)
(West 2004)). In his motion, the defendant noted that the State
intended to submit evidence concerning field sobriety tests and a
2
breath test. The defendant argued that because he was indigent,
he was entitled to $1,800 to pay an expert witness to testify
concerning the field sobriety tests and the breath test. In a
written order, the trial court denied the motion, stating that
the defendant had "not demonstrated circumstances warranting the
need *** for expert witness fees."
During the trial, the jury watched a videotape of the
defendant performing the field sobriety tests. The State
submitted both testimony and documents concerning the defendant's
breath test.
B. Voir Dire
The record shows that the court conducted the voir dire
without a court reporter present. The only reference in the
record to the voir dire appears in a parenthetical statement at
the beginning of the trial transcript, which states, "(THE VOIR
DIRE WAS NOT REPORTED BY THE REPORTER)." The record does not
indicate whether the defendant contemporaneously objected to the
voir dire being conducted without being recorded by the court
reporter. The defendant did not raise the issue in a posttrial
motion. Defendant alleges no irregularity with respect to voir
dire other than the failure to record it.
C. Hearsay Documents
Borders testified that he was certified to operate the
Intoxilyzer, but that he was not authorized to test the machine's
3
accuracy. Borders said that the Intoxilyzer was tested at least
every 62 days by an Illinois state trooper to assure its accuracy
and calibration.
The prosecutor then offered exhibit 4, which was an
affidavit from Illinois State Trooper Stephen Danay, executed on
August 31, 2004. In the affidavit, Danay stated that he was
authorized to test the Intoxilyzer. Danay said that he tested
the machine twice on August 31, using reference samples. At
9:16 a.m. on August 31, the Intoxilyzer read the sample as 0.082,
and at 9:17 a.m. the machine read the sample as 0.081. Danay,
therefore, certified the machine's accuracy and calibration as of
August 31.
Next, the prosecutor submitted exhibit 5, which was a
similar affidavit signed by Danay on October 20, 2004. On that
date, the Intoxilyzer read the sample at 2:40 p.m. as 0.083, and
at 2:41 p.m. as 0.082. Again, Danay certified the machine's
accuracy and calibration as of October 20.
The prosecutor also offered exhibit 6, which was a page from
the police department's log book for the Intoxilyzer. The page
contained several entries showing (1) certification tests done by
Danay on various dates; and (2) breath tests that were either
given or refused by various defendants on various dates. Among
other entries, the page showed (1) the two certification tests
done by Danay on August 31, 2004; (2) the defendant's name as the
4
subject of a breath sample taken on September 13, 2004; and (3)
the two tests done by Danay on October 20, 2004. The entries
done by Danay bore his signature, and the entry concerning the
defendant's breath sample bore Borders' signature. The log book
page showed the defendant's breath sample as registering 0.162.
Additionally, the prosecutor submitted exhibit 8, which was
a printed readout from the Intoxilyzer on September 12, 2004.
The defendant's name was handwritten as the subject of the
readout. Borders acknowledged that the date of the readout
(September 12) and the handwritten date of the defendant's breath
sample in the log book (September 13) inaccurately differed by
one day. September 12 was the correct date. The readout showed
that blank air samples taken both before and after the
defendant's breath sample read 0.000. The defendant's breath
sample registered as 0.162. The readout was signed by Borders as
the operator who conducted both the defendant's breath test and
the two blank air tests.
The defendant objected to the admission of exhibits 4, 5, 6,
and 8 on the basis that the documents violated the confrontation
clause of the United States Constitution, under the holding of
Crawford. The court overruled the defendant's objection, stating
that the documents were admissible as business records.
At the conclusion of the trial, the jury found the defendant
guilty of both DUI charges. The court denied the defendant's
5
motion for a new trial, in which, among other arguments, the
defendant renewed his objections to the admission of exhibits 4,
5, 6, and 8. At the sentencing hearing, the court entered a
judgment of conviction and sentence only as to section 11--
501(a)(2). The defendant appeals.
II. ANALYSIS
A. Expert Witness Fees
The defendant contends that the court erred by denying his
motion for expert witness fees. The State submits that because
the defendant was charged with a misdemeanor, he was not eligible
to obtain expert witness fees. Alternatively, the State argues
that, even if eligible, the defendant failed to show that he was
entitled to such fees.
The statute under which the defendant requested expert
witness fees states that, "[i]n capital cases, *** if the court
determines that the defendant is indigent the court may *** order
the county *** to pay necessary expert witnesses for defendant
reasonable compensation *** not to exceed $250." 725 ILCS 5/113-
-3(d) (West 2004). In People v. Watson, 36 Ill. 2d 228, 221
N.E.2d 645 (1966), the Illinois Supreme Court extended the
applicability of section 113--3(d) to noncapital felonies. In
People v. Kinion, 97 Ill. 2d 322, 454 N.E.2d 625 (1983), the
court ruled that courts may exceed the $250 limit imposed by the
statute. We review a trial court's decision concerning whether
6
to grant expert witness fees for abuse of discretion. People v.
Wilson, 117 Ill. App. 3d 744, 453 N.E.2d 949 (1983).
Initially, the State contends that the defendant was not
entitled to expert witness fees because he was charged with a
misdemeanor. The State notes that while the Watson court
extended the applicability of such fees to felonies, the
defendant has cited no case where a court stated that such fees
were applicable to misdemeanors. There exists no authority for
the expert witness fees in this case. The trial judge did not
abuse his discretion in denying them. Defendant asks this court
to expand the law to allow expert witness fees for a misdemeanor
defense. We believe that it is the province of the legislature
or the Illinois Supreme Court to make the drastic change in the
law urged by defendant. We will not do so. The decision to deny
expert witness fees is affirmed.
B. Voir Dire
The defendant submits that he is entitled to a new trial
because the trial court failed to have the court reporter record
the jury voir dire proceedings. The State contends that the
defendant has forfeited this issue on appeal because the record
does not show that he both contemporaneously objected and renewed
his objection in a posttrial motion.
In order to preserve an issue for appeal, a defendant must
raise it both in a contemporaneous objection and a written
7
posttrial motion. People v. Lewis, 223 Ill. 2d 393, 860 N.E.2d
299 (2006). An issue that is not so preserved is forfeited on
review. People v. Woods, 214 Ill. 2d 455, 828 N.E.2d 247 (2005).
However, we may consider a forfeited issue for plain error. 134
Ill. 2d R. 615(a). The plain error rule permits review of a
forfeited question where (1) the evidence was closely balanced;
or (2) the error was so substantial that it would affect the
fundamental fairness of the proceeding and the integrity of the
judicial process. People v. Hall, 194 Ill. 2d 305, 743 N.E.2d
521 (2000).
In this case, the defendant failed to preserve his argument
by both contemporaneously objecting and by raising it in a
posttrial motion. Therefore, the issue is forfeited on appeal.
Concerning plain error analysis, the evidence in this case was
not closely balanced. Nonetheless, we will consider the
defendant's question for plain error because it concerns the
fundamental fairness of the proceedings and the integrity of the
judicial process. See Hall, 194 Ill. 2d 305, 743 N.E.2d 521.
Illinois Supreme Court Rule 608(a)(9) states that in all
criminal cases, "court reporting personnel *** shall take the
record of the proceedings regarding the selection of the jury."
210 Ill. 2d R. 608(a)(9). In People v. Houston, 226 Ill. 2d 135,
874 N.E.2d 23 (2007), the Illinois Supreme Court considered the
effect of a trial court's failure to follow Rule 608(a)(9).
8
Although the issues raised by the defendant in Houston were
distinguishable from the issues raised by the instant defendant,
we find the court's pronouncements in Houston to be instructive
regarding the voir dire issue raised in this case.
In Houston, on appeal the defendant challenged the racial
composition of the jury under Batson v. Kentucky, 476 U.S. 79, 90
L. Ed. 2d 69, 106 S. Ct. 1712 (1986). In the trial court, the
defendant's attorney twice waived the presence of the court
reporter during jury voir dire. On review, the defendant argued
that his trial counsel provided ineffective assistance by waiving
the presence of the court reporter during voir dire. The Houston
court ruled that although the attorney's conduct fell below an
objective standard of reasonableness, the court could not
determine whether the defendant had suffered prejudice with
regard to his Batson claim. Consequently, our supreme court
remanded the matter to the trial court to reconstruct the jury
voir dire proceedings.
The Houston court noted that failure to record jury voir
dire proceedings created neither: (1) a showing of ineffective
assistance of counsel; nor (2) a presumption of prejudice. See
Houston, 226 Ill. 2d 135, 874 N.E.2d 23. The supreme court did
not rule that the defendant was entitled to a new trial because
of the trial court's failure to record the voir dire, but rather,
9
the court remanded the matter because of the defendant's alleged
Batson issue.
In the present case, the defendant has not raised an issue,
such as a Batson claim, showing that he is entitled to a remand
to reconstruct the voir dire proceedings. In fact, he alleges no
irregularity in jury selection other than the failure to have a
reporter present. Rather, his brief suggests that a review of a
transcript of voir dire might possibly reveal some error. The
trial court's failure to record the jury voir dire, by itself,
did not create a presumption of prejudice. See Houston, 226 Ill.
2d 135, 874 N.E.2d 23. Failure to record voir dire here did not
constitute plain error.
C. Hearsay Documents
The defendant contends that the trial court's admission of
exhibits 4, 5, 6, and 8 in evidence violated the confrontation
clause of the United States Constitution, under the holding of
Crawford. In essence, defendant's argument is that the admission
of exhibits 4, 5, and 6 (relating to the Intoxilyzer's accuracy),
without the opportunity to cross-examine Trooper Danay, violated
Crawford. Without the foundation provided by these exhibits, the
printed test result (exhibit 8) was inadmissible. The State
argues that under Crawford, the documents did not violate the
confrontation clause because they were not testimonial. Because
this issue concerns whether the trial court violated a
10
constitutional right, the standard of review is de novo. People
v. Burns, 209 Ill. 2d 551, 809 N.E.2d 107 (2004).
Initially, we note that the trial court correctly determined
the exhibits at issue to be admissible as business records under
section 5(a), which provides that in criminal trials in Illinois,
"[a]ny writing or record, whether in the form of an entry in a
book or otherwise, made as a memorandum or record of any act,
transaction, occurrence, or event, shall be admissible as
evidence of such act, transaction, occurrence, or event, if made
in regular course of any business, and if it was the regular
course of such business to make such memorandum or record at the
time of such act, transaction, occurrence, or event or within a
reasonable time thereafter." 725 ILCS 5/115--5(a) (West 2006)
In the present case, the evidence established that all of
the disputed exhibits were admissible as business records; they
were made in the regular course of business and it was the
regular course of the police department to make such records at
the time of the events in question. 725 ILCS 5/115--5(a) (West
2006); People v. White, 167 Ill. App. 3d 439, 521 N.E.2d 563,
appeal denied, 122 Ill. 2d 591, 531 N.E.2d 261 (1988). Having
decided that the records are otherwise admissible as business
records, we must address whether the documents are admissible in
light of the Supreme Court's decision in Crawford v. Washington,
541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).
11
The confrontation clause of the United States Constitution
provides that "[i]n all criminal prosecutions, the accused shall
enjoy the right *** to be confronted with the witnesses against
him." U.S. Const., amend. VI. In Crawford, 541 U.S. 36, 158 L.
Ed. 2d 177, 124 S. Ct. 1354, the United States Supreme Court held
that a testimonial hearsay statement is inadmissible, as
violative of the confrontation clause, unless (1) the declarant
is unavailable; and (2) the defendant had a prior opportunity to
cross-examine the declarant concerning the statement.
In People v. So Young Kim, 368 Ill. App. 3d 717, 859 N.E.2d
92 (2006), the court ruled that an affidavit certifying the
accuracy of a Breathalyzer did not violate the confrontation
clause under Crawford. Justice Hutchinson, writing for the
Second District of the Appellate Court, succinctly and correctly
analyzed the issue before us. Clearly, the documents are
hearsay. Under Crawford, the question is whether they are
"testimonial" hearsay. Kim points out that Crawford specifically
deemed that statements admissible under traditional hearsay
exceptions to be nontestimonial and that Breathalyzer
certifications fall within these exceptions. Kim, 368 Ill. App.
3d at 717, 859 N.E.2d at 92. Furthermore, "its public nature
aside, a Breathalyzer test certification is simply not
'testimonial' as the term is used in Crawford." Kim, 368 Ill.
App. 3d at 719-20, 859 N.E.2d at 94. We adopt the reasoning of
12
Kim and hold that admission of affidavits and the log book
entries certifying the accuracy of police breath alcohol testing
machines (exhibits 4, 5 and 6) does not violate defendant
Crawford's right to confront witnesses against him. The
admission of exhibits 4, 5 and 6 provided adequate foundation for
the admission of the test results (exhibit 8).
In summary, we find no error in the admission of exhibits 4,
5, 6 and 8.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
McDonough County circuit court.
Affirmed.
LYTTON, J., concurs.
PRESIDING JUSTICE McDADE, dissenting:
The majority has affirmed the circuit court of McDonough
County, holding that the court did not err (1) in denying
defendant’s motion for expert witness fees, (2) in conducting
jury voir dire off the record in violation of Illinois Supreme
Court Rule 608 (a) (9) (210 Ill. 2d R. 608 (a) (9)), or (3) in
admitting hearsay documents in evidence in violation of the
confrontation clause of the United States Constitution (U.S.
Const., amend. VI), and the holding of Crawford v. Washington,
541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). I concur
with the decision that there was no error in denying expert
13
witness fees. I disagree with the other two holdings and,
therefore, respectfully dissent.
Admission of exhibits 4, 5, 6, and 8
The confrontation clause of the United States Constitution
says that "[i]n all criminal prosecutions, the accused shall
enjoy the right *** to be confronted with the witnesses against
him." U.S. Const., amend. VI. In Crawford, 541 U.S. 36, 158 L.
Ed. 2d 177, 124 S. Ct. 1354, the United States Supreme Court held
that a testimonial hearsay statement is inadmissible, as
violative of the confrontation clause, unless (1) the declarant
is unavailable; and (2) the defendant had a prior opportunity to
cross-examine the declarant concerning the statement.
The Crawford Court explained that hearsay statements are
testimonial if they are "made for the purpose of establishing or
proving some fact" at trial. Crawford, 541 U.S. at 51, 158 L.
Ed. 2d at 192, 124 S. Ct. at 1364. Testimonial statements
include those made in affidavits "that declarants would
reasonably expect to be used prosecutorially" and "statements ***
made under circumstances which would lead an objective witness
reasonably to believe that the statement[s] would be available
for use at a later trial." Crawford, 541 U.S. at 51-2, 158 L.
Ed. 2d at 193, 124 S. Ct. at 1364.
14
Thus, under Crawford, the threshold test in this case is
whether the hearsay statements in exhibits 4, 5, 6, and 8 were
testimonial. I would find that the statements in these exhibits
were testimonial because they were made (1) for the purpose of
establishing or proving the fact that the defendant's blood
alcohol content was 0.08 or greater at the time of the offense;
and (2) under circumstances that would lead an objective witness
reasonably to believe that the statements would be available for
use at a DUI trial.
Specifically, the page of the log book in exhibit 6 was
created in anticipation of criminal litigation against the
defendant and other defendants named on the page. This page
referenced the Intoxilyzer tests that were the subjects of
Danay's affidavits in exhibits 4 and 5. These three documents
taken together (exhibits 4, 5, and 6) show that they were created
in anticipation of criminal litigation against the defendant and
other defendants. Clearly, the Intoxilyzer readout in exhibit 8
was made in anticipation of DUI litigation solely against the
defendant. Therefore, the documents in exhibits 4, 5, 6, and 8
contained testimonial hearsay statements.
Having established that exhibits 4, 5, 6, and 8 were
testimonial hearsay statements, under Crawford, the next question
is whether the declarants of the statements were unavailable.
Danay was the declarant of exhibits 4 and 5. Both Danay and
15
Borders were the declarants of exhibit 6 because both of their
signatures appeared on the document next to the relevant entries.
Borders was the declarant of exhibit 8. The record does not show
that Danay was unavailable. Clearly, Borders was available
because he testified. Exhibits 4, 5, 6, and 8 fail the Crawford
test concerning the unavailability of the declarants of
testimonial hearsay statements. Because the record shows that
the declarants were not unavailable, it is unnecessary to
consider whether the defendant also had a prior opportunity to
cross-examine the declarants. See Crawford, 541 U.S. 36, 158 L.
Ed. 2d 177, 124 S. Ct. 1354. Thus, I believe exhibits 4, 5, 6,
and 8 were inadmissible under the holding of Crawford.
In this case, the trial court admitted the disputed exhibits
under the business records exception to the hearsay rule. In
criminal trials in Illinois,
"[a]ny writing or record, whether in the form of an
entry in a book or otherwise, made as a memorandum or
record of any act, transaction, occurrence, or event,
shall be admissible as evidence of such act,
transaction, occurrence, or event, if made in regular
course of any business, and if it was the regular
course of such business to make such memorandum or
record at the time of such act, transaction,
16
occurrence, or event or within a reasonable time
thereafter." 725 ILCS 5/115--5(a) (West 2006).
However, with exceptions that are not applicable to the present
case,
"[n]o writing or record made in the regular course of
any business shall become admissible as evidence by the
application of [section 115--5] if *** such writing or
record has been made by anyone during an investigation
of an alleged offense or during any investigation
relating to pending or anticipated litigation of any
kind." 725 ILCS 5/115--5(c)(2) (West 2006).
Under section 115--5(c)(2), exhibits 4, 5, 6, and 8 were not
admissible as business records. As stated above, these documents
were created during investigations relating to anticipated DUI
litigation, and therefore were inadmissible as business records.
Moreover, these exhibits essentially were police reports, which
Illinois courts have long held to be inadmissible under the
business records exception to the hearsay rule. See People v.
Smith, 38 Ill. 2d 13, 230 N.E.2d 188 (1967); People v. Shinohara,
375 Ill. App. 3d 85, 872 N.E.2d 498 (2007).
While I acknowledge that in People v. So Young Kim, 368 Ill.
App. 3d 717, 859 N.E.2d 92 (2006), the Illinois Appellate Court,
Second District, ruled that an affidavit certifying the accuracy
of a breathalyzer did not violate the confrontation clause under
17
Crawford, I believe Kim to be factually distinguishable from the
situation we consider here. In Kim, unlike the present case, the
court did not discuss whether the affidavit was related to the
breathalyzer log book entry that concerned the defendant. In the
present case, however, Danay's affidavits, taken together with
the log book entry concerning the defendant, show how the
affidavits and the log book entry were created in anticipation of
the litigation in this case. Furthermore, the Kim court did not
consider a readout from the breathalyzer, as the court did in the
instant case. Because Kim is factually distinguishable from this
case, I would find its ruling to be inapplicable.
Additionally, the Kim court rejected the holding of a
persuasive case from another jurisdiction that was raised by the
parties in this case, which is Shiver v. State, 900 So. 2d 615
(Fla. App. 2005). I agree with the reasoning in Shiver. The
Shiver court noted that the only purpose for preparing an
affidavit concerning the accuracy and calibration of a
breathalyzer is so that the document may be used in litigation.
Indeed, the only reason for a breathalyzer's existence is for DUI
litigation. As the Shiver court pointed out, the result of a
breathalyzer test is only admissible if the machine has been
properly tested for accuracy and calibration. Thus, documentary
evidence concerning a breathalyzer's accuracy and calibration
also only exists in anticipation of DUI litigation.
18
Certainly there are other persuasive cases from foreign
jurisdictions that have disagreed with the holding of Shiver,
including a second court from the same state as Shiver. See,
e.g., Pflieger v. State, 952 So. 2d 1251 (Fla. App. 2007);
Jarrell v. State, 852 N.E.2d 1022 (Ind. App. 2006). Nonetheless,
I believe the Shiver decision to be more well-reasoned than the
cases that disagree with Shiver.
In summary, I find that exhibits 4, 5, 6, and 8 were
inadmissible in this case, as violative of the confrontation
clause of the United States Constitution, under the holding of
Crawford. I further find that these exhibits were not admissible
under the business records exception to the hearsay rule,
contrary to the trial court's ruling. Therefore, I would hold
that the trial court erred as a matter of law by admitting these
exhibits in evidence, in violation of the defendant's
constitutional right.
The exhibits in question concerned whether the defendant was
DUI because his blood alcohol content was 0.08 or greater, under
the elements of section 11--501(a)(1). Although the defendant
was not sentenced under section 11--501(a)(1), the evidence at
issue was also admissible to show that he was DUI under section
11--501(a)(2), for which he was sentenced. Thus, the defendant
is entitled to a new trial because the jury considered this
inadmissible evidence in reaching its decision, for which there
19
was a final judgment. See People v. Oehrke, 369 Ill. App. 3d 63,
860 N.E.2d 416 (2006).
Because I would reverse and remand for a new trial based on
the Crawford issue, it is unnecessary to reach the other issues
raised by the defendant. However, I think it is important to
point out that, despite its seemingly contradictory actions, the
Illinois Supreme Court clearly reiterated that Rule 608(a)(9)
(concerning the presence of a court reporter during jury voir
dire) is not a mere suggestion, but rather, has the force of law,
and is to be obeyed. See People v. Houston, 226 Ill. 2d 135, 874
N.E.2d 23 (2007).
CONCLUSION
For the foregoing reasons, I concur on the issue of the
denial of expert witness fees and respectfully dissent from the
balance of the majority’s decision. I believe this matter should
be remanded to the circuit court of McDonough County for a new
trial.
20