People v. Smith

• Decision Date: 29 July 1993
• Docket Number: No. 2-91-1461,2-91-1461
• Parties: , 187 Ill.Dec. 380 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Walter H. SMITH, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 837

617 N.E.2d 837

248 Ill.App.3d 351, 187 Ill.Dec. 380

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Walter H. SMITH, Defendant-Appellee.

No. 2-91-1461.

Appellate Court of Illinois,

Second District.

July 29, 1993.

Daniel A. Fish, Lee County State's Atty., Dixon, William L. Browers, Deputy Director, Lawrence M. Bauer, State's Attys. Appellate Prosecutors, Elgin, for the People.

Al Henry Williams, Dixon, for Walter H. Smith.

Justice BOWMAN delivered the opinion of the court:

Defendant, Walter H. Smith, was indicted for aggravated driving under the influence of alcohol (DUI) and driving with a blood-alcohol concentration (BAC) of 0.10 or more, which acts resulted in great bodily harm to another (counts I, II) (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501(d)(3) (now 625 ILCS 5/11-501(d)(3) (West 1992)); he was also indicted for DUI and driving with a BAC of 0.10 or more (counts III, IV) (Ill.Rev.Stat.1989, ch. 95 1/5, pars. 11-501(a)(1), (a)(2) (now 625 ILCS 5/11-501(a)(1), (a)(2) (West 1992))). The offenses were alleged to have taken place on December 19, 1989.

Following the denial of its motion to reconsider and pursuant to Supreme Court Rule 604(a)(1) (134 Ill.2d R. 604(a)(1)), the State takes an interlocutory appeal of the circuit court's order of October 15, 1991, granting defendant's motion to suppress the evidence of certain blood-alcohol tests allegedly taken on December 19, 1989, in the course of emergency medical treatment (see Ill.Rev.Stat.1989, ch. 95 1/2, par. 11.501.4 (now 625 ILCS 5/11-501.4 (West 1992))). The State filed its certificate of impairment. Defendant has not filed an appellee's brief, and we will therefore consider the appeal under the guidelines established in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

On appeal, the State argues that the trial court erred in granting defendant's motion to suppress because defendant failed to make a prima facie case and the court abused its discretion in denying the State's oral motion for a continuance to obtain the presence of Dr. Strom, a hospital physician whom the State characterized as a material witness.

We affirm.

Defendant's motion to suppress the results of the BAC test stated that he did not consent to the blood test and that the test was not taken in accordance with the statutory requirements of section 11-501.4 of the Illinois Vehicle Code (Code). In DUI and reckless homicide cases, that section permits, as a business record exception to the hearsay rule, the admission into evidence of written blood-alcohol test results when the test is conducted in the regular course of providing emergency medical treatment if each of the following criteria is met:

"(1) the blood alcohol tests were ordered by a physician on duty at the hospital emergency room and were performed in the regular course of providing emergency medical treatment in order to assist the physician in diagnosis or treatment;

(2) the blood alcohol tests were performed by the hospital's own laboratory; and

(3) the written results of the blood alcohol tests were received and considered by the physician on duty at the hospital emergency room to assist that physician in diagnosis or treatment." Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-501.4 (now 625 ILCS 5/11-501.4 (West 1992)).

At the outset of the hearing on defendant's motion on September 13, 1991, the court noted that defense counsel presented a letter from Dr. Strom stating that the doctor could not be there. Defense counsel stated that defendant was ready to proceed without him and noted that defendant would be moving to dismiss the cause for lack of a speedy trial. The State indicated it might wish to move for a continuance to obtain the testimony of Dr. Strom if necessary. The court replied, "Well, let's cross that bridge when we get to it."

Defendant testified that he was at KSB Hospital in Dixon, Illinois, on December 19, 1989, and he did not give anyone consent to take his blood that evening.

Beatrice Letcher testified that she was employed as a laboratory technician at the KSB Hospital on the night shift of December 19, 1989. When asked whether she was ordered to do certain laboratory work regarding defendant, she replied, "Looks like it." She said she saw a "CBC," or "complete blood count, set of electrolytes, glucose." She performs laboratory work when she is called to the emergency room. She said there is a written order, usually written by a doctor. She could not remember which doctor was on duty that evening, but thought Dr. Yunez was the treating physician. When asked if she recalled if on the order sheet he ordered her to do any blood test for ethanol, she replied, "I didn't see it." She said she had made a cursory review of the progress notes of the patient's condition. When asked again if she was able to determine whether any blood work for alcohol was requested by the treating physician, she stated, "I didn't see any order."

On cross-examination, Letcher was asked if there was another emergency room doctor, Dr. John Strom, who came in after Dr. Yunez had seen defendant; she replied, "I don't know." She conceded that it was possible that he was there, but she did not know specifically who ordered her to perform the blood-alcohol test that night. She stated that she did the blood test because there was a requisition. When asked whether she would have taken the blood had a physician not ordered the test, she replied, "No. Somebody had to order it." When asked whether a physician had to order the test, she answered, "I assume so." She had no idea whether Dr. Yunez or Dr. Strom was involved. She testified that she performed the tests in the laboratory and recorded them on the log sheets and on the requisition. She could not recall to whom she had reported the results or whether they were reported to the doctor who attended defendant.

On re-cross-examination, Letcher stated that the records indicated that Dr. Yunez was on duty in the emergency room, but she had no idea who was on duty. She never saw a written order from a doctor.

Letcher further stated that she did not know whether Dr. Yunez or Dr. Strom ordered the blood test and had no idea who was the treating physician. When she saw the paper work on the emergency room treatment, it did not show that a blood-alcohol test was ordered.

The State argued that defendant had not met the burden of showing that the steps were not followed and that the motion be denied. Alternatively, the State sought a continuance to take Dr. Strom's testimony. The State was relying on defendant's subpoena of Dr. Strom. However, defense counsel argued that he did not have to call Dr. Strom and noted that previously the State had twice asked for continuances and had subpoenaed Dr. Strom. The trial court then took the matter under advisement.

In its detailed memorandum decision, the court reviewed the chronology of the significant events in the progress of the case. On September 17, 1990, defendant appeared for arraignment, filed a motion for discovery and made a demand for a speedy trial. The matter was scheduled for pretrial conference on October 1, 1990. On that date, the matter was continued to October 22, 1990, by agreement and then by joint motion to November 19, 1990, when a jury trial was set for January 8, 1991. No trial was held on that date. Instead, defendant filed a motion to suppress which was set for an evidentiary hearing to March 8, 1991.

The court determined that the motion was not a traditional motion to suppress, but rather was in the nature of a motion in limine. On March 8, the hearing was continued on the motion of the State to April 11, 1991. The record shows that the State caused a subpoena to be issued and served on Dr. Strom on March 1, 1991, and another issued on March 8, 1991, which was served on March 14. On April 11, 1991, the matter was continued on the motion of defendant to May 16, 1991. However, on May 14, the State again obtained a continuance to June 19, 1991. The record shows that the State caused another subpoena to be issued to Dr. Strom on May 15 which was served on May 17. No hearing was held on June 19. On July 2, 1991, the State sought another motion for a continuance to July 11 by means of a written motion. The motion stated that Dr. Strom was a "crucial" witness to the presentation of the State's case, that he was unavailable to testify, and the State would be severely prejudiced if Dr. Strom could not testify. The State's motion was granted on July 11, 1991, when the matter was set for July 19, 1991. There was no activity on July 19, 1991, and the cause lay dormant until September 4, 1991, when it was set for hearing on September 13, 1991.

The court noted that although defendant did not object to the State's requests for continuances, defendant did not consent to them and insisted that the record clearly show that the motions were being made by the State. However, the trial court denied defendant's September 13 motion to dismiss the case on speedy trial grounds.

Regarding the motion to suppress, the court observed that the State had conceded that an evidentiary hearing was appropriate prior to trial. If defendant's motion had not been filed, the State would have had the burden of meeting the statutory requirements to introduce the test results at the trial. The court concluded that the State had assumed the burden of proving the foundation for the admission of the blood test, particularly because it had filed its July 2 motion in which it noted that Dr. Strom was a crucial witness to its case and would be prejudiced by his absence. The court then pointed out that the State had again orally requested a continuance at the date of the hearing so it could produce Dr. Strom, thereby again conceding its burden of showing compliance with the statute, and no explanation had been given for it's failure to produce Dr. Strom. The court also found...