People v. Thomas
| Decision Date | 13 June 2017 |
| Docket Number | No. 2-15-0186,2-15-0186 |
| Citation | 2017 IL App (2d) 150186 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD J. THOMAS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Du Page County.
Honorable Paul Marchese, Judge, Presiding.
ORDER
¶ 1 Held: The trial court erred in failing to instruct the jury on the issue of the voluntariness of defendant's actions where evidence was presented that defendant was in a state of automatism when he drove his car and collided with another vehicle; as there is no double jeopardy impediment to retrial, the trial court is reversed and the cause is remanded for a new trial.
¶ 2 Following a jury trial, defendant, Richard J. Thomas, was found guilty of one count of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2010)) and failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a) (West 2010)) and was sentenced to 60 days in jail and 24 months of probation. Defendant now appeals from his convictions, contending that: (1) the trial court erred in refusing to instruct the jury regarding "voluntary act" where evidence was presented that defendant was in a state of automatism when he drove his car; (2) the trial court erred in admitting into evidence purported hospital blood test records; (3) the trial court erred in instructing the jury regarding the hospital blood test and the ratio for converting serum blood alcohol content (BAC) to whole blood BAC; (4) his due process rights were violated where the arresting officer's trial testimony regarding field sobriety tests conflicted significantly with the officer's testimony given at a prior hearing; and (5) he was not proved guilty beyond a reasonable doubt. We reverse and remand for a new trial.
¶ 4 Defendant was involved in a collision with a parked car on May 15, 2012 and was taken to Hinsdale Hospital by ambulance. He was subsequently charged with DUI (impairment) and failure to reduce speed to avoid an accident.1
¶ 5 Defendant filed a motion to quash arrest and suppress evidence. At the hearing Deputy Northrup testified that, at the scene of the collision, he noticed that defendant had a strong odor of alcohol on his breath, glassy and bloodshot eyes, thick-tongued speech, and a lack of knowledge of his whereabouts. Defendant was taken to Hinsdale Hospital, where Northrup later placed him under arrest. Northrup also testified that he performed a horizontal gaze nystagmus (HGN) test on defendant as defendant remained seated in his car after the collision, describing in detail how he performed the test and the results. Errors and contradictions in Northrup's testimony regardingdetails such as the time he received the call regarding the collision, when he arrived, when he noticed defendant's lack of sobriety, and when he placed defendant under arrest were of such magnitude that the trial court noted that "the State's going to have significant issues at trial with this matter" and that the court was "very concerned with the cavalier attitude of the arresting officer in his memorializing the dates and times, as well as other material facts—and it is extremely disappointing." However, the trial court denied defendant's motion.
¶ 6 At trial, Northrup testified that, when he first approached defendant at the scene of the collision, he noticed that defendant had a strong odor of alcohol on his breath, bloodshot and glassy eyes, and slurred speech. When Northrup asked him how much alcohol he had consumed that night, defendant said that he had had none. Defendant also seemed confused as to what street he was on and had difficulty in removing his driver's license from his wallet. Defendant answered "no" when asked if he was taking any medications or had any medical conditions and denied taking any illegal drugs. After defendant was taken to Hinsdale Hospital, he voluntarily told Northrup that he "takes Ambien."2 Defendant did not know if he was prohibited from consuming alcohol while taking Ambien. Northrup never asked hospital staff to take a blood test from defendant. Northrup did not offer any field sobriety tests, including HGN, to defendant, and defendant refused to take any chemical tests.
¶ 7 On cross-examination, Northrup was questioned extensively regarding the contradictions contained in his testimony at the prior hearing on the motion to quash arrest and suppress evidence, his reports, and his trial testimony as to time of the accident and time of arrest. He was alsoimpeached with his prior testimony at that hearing that he had performed the HGN test on defendant at the scene of the collision.
¶ 8 Michelle Gilland testified that she was the regional manager of laboratory quality, testing, and safety for Adventist Hinsdale Hospital and had been so for 3.5 years. She was familiar with medical records kept by Hinsdale. Gilland was shown what was marked as People's Exhibit 2 for identification, and she recognized it "to be part of a medical chart," including a lab result made as a record of the collection and testing of an individual's blood. She stated that it was made in the regular course of business at Hinsdale Hospital and that an onsite lab at the hospital analyzed blood tests. When asked whether she knew whether the blood that was tested in this case had been tested at the Hinsdale Hospital Lab, she responded, "That's what the report says."
¶ 9 Defendant objected to publishing the exhibit and was allowed to cross-examine Gilland outside the presence of the jury regarding the foundation for admitting the exhibit. When asked, "Where does it say that this test here was actually performed inside the hospital's laboratory?" she replied "It does not state that." She first saw People's Exhibit 2 the day before trial, at the State's Attorney's office. The following colloquy then took place:
¶ 10 In questioning by the State, Gilland testified that the exhibit did not appear to be altered and that it indicated at the top that it was from Hinsdale Hospital. The court took judicial notice of the subpoena duces tecum requesting the emergency and treatment records of defendant from the keeper of records at Hinsdale Hospital. Under questioning from defense counsel, Gilland admitted that she did not know if the exhibit had been altered and could not say that it was authentic because she had never seen it before the day before trial. She identified the exhibit as a test result for defendant because his name was on the bottom related to a saline lock insertion; there was no patient's name at the top, where the alcohol test result was. Gilland testified as to how information was entered into a hospital chart: the physician would place an order, the blood sample would be drawn, the sample would be tested in the hospital's lab, and the result would be "automatically transmitted from the testing instrument into the medical record.
¶ 11 After some additional foundation questions, the court admitted the exhibit into evidence and allowed the State to publish the record pursuant to section 11-501.4 of the Illinois VehicleCode (625 ILCS 5/11-501.4 (West 2010)) and the business records exception to the hearsay rule. Gilland testified that the exhibit contained two "blood serum or blood plasma results": the result for May 15, 2012 at 2150 hours was 159.0 milligrams, or 0.159 grams, per deciliter. The court then, at the State's request, took judicial notice of Illinois Administrative Code Chapter 20, Section 1286.40 and instructed the jury:
The State read aloud section 1284.40 that "The blood serum or blood plasma alcohol concentration result will be divided by 1.18 to obtain a whole blood equivalent." The court also took judicial notice "that .159 divided by 1.18 is equal to .134."
¶ 12 On cross-examination, Gilland testified that People's exhibit 2 showed page 26 out of 43 pages, but she did not know where the other pages were. She had not compared the exhibit to any actual records from the hospital and could not authenticate this record. Gilland testified that the exhibit did not state the method by which the test result was obtained, whether it was whole blood, serum, or plasma.
¶ 13 Defendant called Doctor James Thomas O'Donnell, who was tendered to the jury as an expert witness in the field of pharmacology. O'Donnell testified that, based on his conversationwith defendant and his examination of the police reports, hospital records, and defendant's pharmacy records (none of which were entered into evidence), he...
To continue reading
Request your trial