People v. Russell

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