People v. Menssen

• Decision Date: 02 August 1994
• Docket Number: No. 4-93-0900,4-93-0900
• Citation: 263 Ill.App.3d 946,636 N.E.2d 1101,201 Ill.Dec. 669
• Parties: , 201 Ill.Dec. 669 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David Eric MENSSEN a/k/a Eric D. Menssen, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1101

636 N.E.2d 1101

263 Ill.App.3d 946, 201 Ill.Dec. 669

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David Eric MENSSEN a/k/a Eric D. Menssen, Defendant-Appellant.

No. 4-93-0900.

Appellate Court of Illinois Fourth District.

Argued May 17, 1994.

Decided June 27, 1994.

Rehearing Denied Aug. 2, 1994.

Paul R. Welch (argued), Costigan & Wollrab, P.C., Bloomington, for appellant.

John B. Huschen, State's Atty., Eureka, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director and Linda Susan McClain, Staff Atty. (argued), for appellee.

Presiding Justice McCULLOUGH delivered the opinion of the court:

Following a jury trial conducted in the circuit court of Woodford County, defendant David Eric Menssen, a/k/a Eric D. Menssen, was found guilty of driving while under the influence of alcohol (DUI) (Woodford County case No. 92-TR-2426). (Ill.Rev.Stat.1991, ch. 95 1/2, par. 11-501(a)(1).) In a consolidated case, the defendant was tried on a charge of assault and his motion for directed verdict at the close of the evidence was granted (Woodford County case No. 92- CM-186). (Ill.Rev.Stat.1991 ch. 38, par. 12-1(a).) Defendant was sentenced on the DUI to 24 months' probation and ordered to pay a $750 fine, perform 75 hours of public service work, attend a victim-impact panel, complete an alcohol evaluation, and complete any recommended treatment.

On review, the issues raised are (1) whether the trial court should have granted defendant a mistrial because of the State's failure to produce medical records in compliance with an agreement for voluntary disclosure, and (2) whether the trial court erred by admitting into evidence serum-alcohol test results. We affirm.

On August 25, 1992, the circuit court entered an order setting trial for September 14, 1992. That order also required that all discovery be completed at least seven days before the final pretrial conference, scheduled for September 8, 1992. After a continuance, a similar order was entered on December 22, 1992, setting January 19, 1993, as the trial date and January 5, 1993, as the final pretrial conference.

At trial, Dr. Richard Miller, who treated defendant at St. Francis Medical Center on May 28, 1992, testified for the State. During defense counsel's cross-examination, Miller was asked about any information he had regarding defendant's imbibing alcoholic beverages in relation to his injury at the time he was driving. Miller referred to a nursing record, which had not been submitted as an exhibit, and read from it as follows:

"This is a 51-year-old white male presented to St. Francis emergency room per ambulance after an altercation. Patient states has been drinking since 1600--that is 4:00 p.m.--beer. Was tailgating a car when the car stopped and driver confronted him, hit him times one in the head."

Miller added that this was a nursing record which was part of the medical records which were routinely consulted in evaluating a patient. At the time, defendant did not object to the testimony or move to strike it.

During further cross-examination, Miller was asked about signs of alcohol imbibing, and he again referred to the nursing record. At that point, defense counsel stated the defense did not have nursing records from the hospital and asked that the testimony about them be stricken. The trial court did not make a ruling, but informed the jurors that the rules of discovery in felony cases are not available in a misdemeanor case such as this. Because the trial judge did not know what had been previously requested, he directed the parties to proceed with the trial.

After Miller finished testifying, the defense counsel made a more specific objection outside the presence of the jury. Defense counsel stated he was provided medical records which were provided to the State as a result of a grand jury subpoena of hospital records. The subpoena referred to all medical records. Defense counsel assumed the nursing records were not provided to the State, and objected to Miller referring to those notes, because the content and the identity of the author had not previously been disclosed. The State argued that Miller was merely refreshing his recollection and there was no need to provide in discovery documents which a witness would use to refresh his recollection. However, defense counsel pointed out that Miller read from the nursing record and was not refreshing his recollection. No ruling was made by the trial court at that time.

Prior to the resumption of trial the next day, defendant presented a written motion for mistrial based on Miller having testified about the undisclosed nursing record. It was still defense counsel's understanding that the nursing record had not been provided to the State pursuant to the subpoena. In argument, defense counsel also noted that there had been a pretrial suppression hearing relating to admissions and statements allegedly made by defendant and that there was a continuing objection to the introduction of such evidence. Defense counsel stated he had not envisioned "some nurse" taking a statement from defendant. Defense counsel further noted that, although the supreme court rules regarding discovery in criminal cases do not apply to misdemeanor trials (134 Ill.2d Rules 411 through 415), a motion for discovery was filed and the State complied by voluntarily exchanging information with the defense.

The State acknowledged that the document had been produced pursuant to the subpoena on December 9, 1992. Nevertheless, the State argued that mistrial was too severe a remedy, defendant was not prejudiced in light of other testimony, and Miller's reference to the notes came in response to cross-examination. The trial court denied defendant's motion for mistrial.

There are several problems with defendant's position on appeal. First, the nursing records were not something which were otherwise unavailable to defendant. They were part of defendant's own medical records and would have been supplied to him by the hospital had he asked for them. Second, there is no order directing the State to disclose all medical records in its possession. The trial court's order provided discovery was to be completed seven days before the first pretrial conference and the parties were to give the court prompt written notice of any default in discovery. The parties agree a discovery motion was filed and the State informally agreed to supply all documents which had been supplied to the State as a result of the grand jury subpoena. Third, the supreme court rules regarding discovery do not apply to misdemeanor cases. (People v. Schmidt (1974), 56 Ill.2d 572, 574-75, 309 N.E.2d 557, 558; People v. Elbus (1983), 116 Ill.App.3d 104, 107, 71 Ill.Dec. 635, 637, 451 N.E.2d 603, 605; 134 Ill.2d R. 411.) Fourth, the State did not attempt to introduce this document into evidence or ask Miller about it. Instead, Miller referred to it on cross-examination by defense counsel, who opened the door to any evidence Miller had of alcoholic consumption by defendant. Fifth, defendant did not move to strike the testimony, or even object to it initially, and did not ask for a recess or continuance in order to more fully prepare the defense because of this arguably "surprise" evidence. Sixth, defendant was allowed to present a witness, John Penn, who was previously undisclosed to the State, in order to refute the statement in the nursing record that defendant had been drinking beer since 4 p.m.

The determination of the propriety of declaring a mistrial lies within the discretion of the trial court, and a mistrial should be declared only if there is some occurrence at trial which is of such character and magnitude that the party seeking the mistrial is deprived of a fair trial. (People v. Redd (1990), 135 Ill.2d 252, 323, 142 Ill.Dec. 802, 834, 553 N.E.2d 316, 348.) On appeal, the granting or denying of a motion for mistrial is reviewed under an abuse of discretion standard. People v. Ortiz (1992), 151 Ill.2d 1, 12, 175 Ill.Dec. 695, 699, 600 N.E.2d 1153, 1157, citing People v. Laws (1963), 29 Ill.2d 221, 225, 193 N.E.2d 806, 808; People v. Marty (1993), 241 Ill.App.3d 266, 271, 181 Ill.Dec. 852, 856, 608 N.E.2d 1326, 1330; People v. Logston (1990), 196 Ill.App.3d 30, 33, 142 Ill.Dec. 525, 527, 552 N.E.2d 1266, 1268.

Discovery procedures which have developed under case law in favor of defendants in misdemeanor cases are not in conflict with the discovery provisions of the supreme court rules, including providing defendant with a list of witnesses, the results of any breathalyzer test, any inculpatory statement made by defendant, and any evidence which tends to negate defendant's guilt. (People v. Williams (1981), 87 Ill.2d 161, 164-65, 57 Ill.Dec. 589, 560, 429 N.E.2d 487, 488, citing Schmidt, 56 Ill.2d at 575, 309 N.E.2d at 558.) Although the supreme court rules do not provide the basis for sanctions in misdemeanor cases, a court has inherent power to enforce its orders. The sanctions imposed must be appropriate to the circumstances. The ultimate object is to compel discovery, not to punish the opposing party for an oversight of an attorney. Moreover, the exclusion of evidence is a harsh sanction which does not contribute to the goal of truth seeking. (People v. Petru (1977), 52 Ill.App.3d 676, 678-79, 10 Ill.Dec. 371, 372-73, 367 N.E.2d 980, 981-82.) In People v. Pondexter (1991), 214 Ill.App.3d 79, 85, 157 Ill.Dec. 921, 925, 573 N.E.2d 339, 343, a case involving sanctions under the supreme court rules, this court noted the preferred sanction for a discovery violation which was not blatant was a recess or continuance if that relief would protect the other party from surprise or prejudice. Ordering a mistrial in such a case would not be appropriate as the sanctions are designed to accomplish the purpose of discovery, not to encroach on a fair trial. In the case at bar, there was no cou...