Steward v. Crissell

                                   SECOND DIVISION
                                   June 10, 1997







No. 1-96-2444

ROSIE L. STEWARD, Special Administrator )    Appeal from the
of the Estate of James Lee Steward,     )    Circuit Court of
Deceased,                               )    Cook County
                                        )
          Plaintiff-Appellant,          )
                                        )
     v.                                 )                        
                                        )
BERNARD L. CRISSELL and NORTH AMERICAN  )
VAN LINES, INC.,                        )    Honorable
                                        )    Philip Fleischman,
          Defendants-Appellees.         )    Judge Presiding


     JUSTICE MCNULTY delivered the opinion of the court:
     This case turns on the admissibility of a toxicology report. 
James Steward died when his car hit a trailer.  Rosie Steward, as
special administrator of James Steward's estate, sued the trailer's
owner and driver for negligence.  The trial court admitted into
evidence at trial the medical examiner's toxicology report, which
showed an alcohol concentration of .162 in Steward's blood. 
Plaintiff appeals from judgment entered on the jury's verdict for
defendants.  We, too, find the report admissible under section 115-
5.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-5.1
(West 1994)), and therefore we affirm.
     Defendant Bernard Crissell drove a truck and trailer for
defendant North American Van Lines on January 11, 1992.  Heading
westbound on 95th Street somewhat after 11 p.m., he saw a sign
indicating that the viaduct ahead of him had a clearance of only 12
feet 8 inches.  Because his trailer was over 13 feet tall, he
realized he needed to turn around.   He turned left onto
Dorchester, only to find a chain blocking the street.  The street
led to a business district, and authorities for that district
closed that street at 6 o'clock that night.  Crissell pulled his
truck up to the chain, stopped, and turned on his four-way
flashers.  His trailer then blocked both eastbound lanes and one of
the two westbound lanes.  He saw a security pickup truck coming
towards him from inside the business district.  A few minutes later
Crissell heard a loud crash.
     Police found Steward dead in his car.  The trailer sheared off
the top of the car as the eastbound car passed under the trailer. 
The car came to a stop 89 feet east of the trailer.  The estate
charged Crissell and North American Van Lines with negligently
blocking the eastbound lanes without placing warnings adequate to
give drivers time to react when they discovered the trailer after
passing underneath the nearby viaduct.
     Before trial plaintiff moved to bar the toxicologist's report
and testimony.  The trial court denied the motion.  Dr. Nancy Wu
Chen, chief toxicologist in the Cook County office of the medical
examiner, explained department procedures for quantifying toxin
levels in samples the department receives from the medical
examiner's pathology department.  The toxicology department
received the samples labeled "James Stewart" at 1:44 p.m. on
January 12, 1992.  The file numbers matched Steward's files, and
the subject's description also matched Steward's description.  Dr.
Wu Chen did not know when the pathology department drew the samples
because her records show only the toxicology department's work. 
The court overruled plaintiff's objection to the foundation for the
exhibit.
     On cross-examination Dr. Wu Chen admitted that alcohol
concentrations in the blood change somewhat after death, and the
readings vary somewhat depending upon the part of the body from
which blood is drawn.  She knew neither from what part of Steward's
body, nor how long after death, the pathologists drew the blood. 
She said, "that question maybe it should be directed to a
pathologist."  Defendants' exhibits listed Dr. Deborah Kay as the
pathologist who requested the toxicology report.  Neither party
subpoenaed Dr. Kay to testify.
     The parties presented testimony concerning lighting,
obstruction of the view for eastbound cars, Steward's speed, and
the length of time the trailer remained across the lanes prior to
the crash.  Plaintiff argued that Crissell could have pulled off
the roadway rather than turn left, and he could have put out the
warning triangles kept in the truck.
     The court instructed the jurors that statutory law forbids
driving with a blood-alcohol concentration in excess of .10, and if
they found a violation of that statute, they could consider that
violation in assessing negligence.  The court also told the jurors
that if Steward's contributory negligence was more than 50% of the
proximate cause of the accident, they should return a verdict for
defendants.  
     Plaintiff argues that section 115-5.1 of the Code of Criminal
Procedure does not authorize admission of the toxicology report
because the alcohol in Steward's blood was not the cause of death. 
Section 115-5.1 provides:
          "In any civil or criminal action the records of the
     coroner's medical or laboratory examiner summarizing and
     detailing the performance of his or her official duties
     in performing medical examinations upon deceased persons
     or autopsies, or both, and kept in the ordinary course of
     business ***, duly certified by the *** medical examiner,
     shall be received as competent evidence in any court of
     this State, to the extent permitted by this Section. 
     These reports, specifically including but not limited to
     the pathologist's protocol, autopsy reports and
     toxicological reports, shall be public documents and
     thereby may be admissible as prima facie evidence of the
     facts, findings, opinions, diagnoses and conditions
     stated therein.
          A duly certified coroner's protocol or autopsy
     report, or both, complying with the requirements of this
     Section may be duly admitted into evidence as an
     exception to the hearsay rule as prima facie proof of the
     cause of death of the person to whom it relates.  The
     records referred to in this Section shall be limited to
     the records of the results of post-mortem examinations of
     the findings of autopsy and toxicological laboratory
     examinations.
          Persons who prepare reports or records offered in
     evidence hereunder may be subpoenaed as witnesses in
     civil or criminal cases upon the request of either party
     to the cause."  725 ILCS 5/115-5.1 (West 1994).
The argument in this case centers on the legislature's intention in
restricting admissibility to "the extent permitted by this
Section."  725 ILCS 5/115-5.1 (West 1994).
     As the statute itself indicates, the medical examiner's
records are "public documents" "kept in the ordinary course of
business."  725 ILCS 5/115-5.1 (West 1994).  As such they appear to
be generally admissible under common law hearsay exceptions for
public documents and business records, in the absence of the
statute.  See In re Estate of Ersch, 29 Ill. 2d 572, 578, 195 N.E.2d 149 (1963).  Public documents are generally admissible
because of "the inconvenience to the public official in requiring
him to testify, the trustworthiness of one charged with a public
duty, and the fact that there is no motive for falsifying or
misrepresenting."  People v. Fair, 61 Ill. App. 2d 360, 366, 210 N.E.2d 593 (1965).  The advisory committee commenting on the public
documents exception embodied in Federal Rule of Evidence 803(8)
also noted that the documents reflecting regularly conducted
governmental activities are made reliable "by systematic checking,
by regularity and continuity which produce habits of precision, by
actual experience of business in relying upon them, or by a duty to
make an accurate record."  Fed. R. Evid. 803, Advisory Committee's
Note.
     Accordingly, public documents produced by coroners and county
medical examiners were generally admissible in evidence until our
supreme court decided Spiegel's House Furnishing Co. v. Industrial
Comm'n, 288 Ill. 422, 123 N.E. 606 (1919).  In that case the
plaintiff sought to recover worker's compensation from her dead
husband's employer.  The trial court admitted into evidence the
verdict of the coroner's jury, which found that the decedent
received the fatal wound while working on his employer's property. 
Our supreme court noted that the coroner's jury based its verdict
solely on hearsay testimony concerning statements the decedent made
about the injury, and the employer had no right to appear or
present evidence to the coroner's jury.  Spiegel's, 288 Ill.  at
425-26.  Even a judicial finding against an unrepresented party
would not have preclusive effect in a subsequent trial; the court
reasoned that the quasi-judicial findings of a coroner's jury
should have less effect.  Spiegel's, 288 Ill.  at 432.  The court
held:
     "[I]t should be no longer *** that a coroner's verdict or
     inquest should be admissible as evidence in civil suits
     for the purpose of establishing personal liability
     against any individual in cases where the death of any
     person is charged or to establish a defense to such a
     suit, or for the purpose of establishing other issues
     between private litigants."  Spiegel's, 288 Ill.  at
     430. 
     The committee on the federal rules noted problems similar to
those that led to the holding in Spiegel's.  When a public record
includes an evaluative report, which may rely on inadmissible
hearsay, like the coroner's verdict on cause of death, its
admissibility is problematic.  Fed. R. Evid. 803, Advisory
Committee's Note.  Police reports are generally inadmissible in
part because they largely summarize hearsay from persons not under
oath telling the police what they saw.  Annotation, Admissibility
of Report of Police or Other Public Officer or Employee, or
Portions of Report, as to Cause of or Responsibility for Accident,
Injury to Person, or Damage to Property, 69 A.L.R.2d 1148, 1151
(1960).  Some reports include the officer's nonexpert opinion on
such matters as the cause of an accident.  69 A.L.R.2d at 1151-52.
     However, police reports may also include statements of facts
the officer observed.
     "An example is such a statement as that the skidmarks at
     the scene of the accident were 75 feet in length.  Such
     an item *** should, so far as the hearsay rule is
     concerned, be admissible in evidence ***.
          ***
          In other words, those portions of a public officer's
     report relating to the cause of or responsibility for an
     accident, injury, or damage may constitute statements of
     fact or they may represent a mere opinion or conclusion,
     and it would seem that a statement appearing in such a
     report relating to the cause of or responsibility for an
     accident or injury would properly be admitted in evidence
     if (1) it constituted a statement of fact, as
     distinguished from an opinion or conclusion, and (2) it
     represented the personal observations of the reporter,
     not a relaying of what someone else had told him."  69
     A.L.R.2d at 1151-52.
     In Carson v. Metropolitan Life Insurance Co., 156 Ohio St.
104, 100 N.E.2d 197 (1951), the trial court admitted into evidence
a coroner's report under a statute that made the coroner's records
admissible as evidence "as to the facts therein contained." 
Carson, 156 Ohio St. at 111, 100 N.E.2d  at 201.  The supreme court
of Ohio held that the trial court properly admitted the report as
evidence of such facts as the decedent's age and the description of
the fatal wound.  However, the report also reflected the coroner's
conclusion that the decedent killed himself.  The court noted that
courts of other states divided on the issue of whether coroners'
opinions as to cause of death constituted statements of fact under
similar statutes.  Carson, 156 Ohio St. at 112, 100 N.E.2d  at 202. 
The court held that the coroner's conclusion constituted an
inadmissible opinion.  Carson, 156 Ohio St. at 113, 100 N.E.2d  at
203; see People v. Fiddler, 45 Ill. 2d 181, 185, 258 N.E.2d 359
(1970).
     Illinois statutes directly address the question that the Ohio
court faced.  The General Assembly adopted the holding of Spiegel's
and the statute remains in effect.  735 ILCS 5/8-2201 (West 1994). 
Until 1982 the legislature also made the coroner's toxicology
reports inadmissible in civil trials, but the legislature then
eliminated the statute specifically restricting use of toxicology
reports and added a provision to "An Act in regard to evidence and
depositions" (Ill. Rev. Stat. 1981, ch. 51, pars. 3.01 through
3.03), explicitly making such reports admissible in civil
proceedings.  See Schantz v. Hodge-VonDeBur, 113 Ill. App. 3d 950,
951-52, 447 N.E.2d 1355 (1983).
     Section 115-5.1 recodifies sections 3.01 through 3.03 of the
Evidence Act.  Section 3.01 provided:
          "In any civil or criminal action the records of the
     coroner's medical or laboratory examiner summarizing and
     detailing the performance of his official duties in
     performing medical examinations upon deceased persons or
     autopsies, or both, and kept in the ordinary course of
     business ***, duly certified by the *** medical examiner,
     shall be received as competent evidence in any court of
     this State, to the extent permitted by Section 3.03. 
     These reports, specifically including but not limited to
     the pathologist's protocol, autopsy reports and
     toxicological reports, shall be public documents and
     thereby may be admissible as prima facie evidence of the
     facts, findings, opinions, diagnoses and conditions
     stated therein."  Ill. Rev. Stat. 1981, ch. 51, par.
     3.01.
     Section 3.02 permitted the limited use of a coroner's protocol
or autopsy report to show cause of death.  Ill. Rev. Stat. 1981,
ch. 51, par. 3.02.  Section 3.03 established that either party to
a civil case had a right to subpoena as witnesses any persons who
prepared the reports.  Thus the restriction on use "to the extent
permitted by Section 3.03" meant that none of the reports were
admissible if the preparers failed to respond to subpoena or were
otherwise unavailable for examination by any party who sought to
examine them.  See Affatato v. Jewel Cos., 259 Ill. App. 3d 787,
795-96, 632 N.E.2d 137 (1994).  The section established special
procedures for admission of reports prepared by persons since
deceased.  Ill. Rev. Stat. 1981, ch. 51, par. 3.03 (now 725 ILCS
5/115-5.1 (West 1994)).
     We find that the restriction to use "to the extent permitted
by this Section" (725 ILCS 5/115-5.1 (West 1994)) retains the
meaning it had when enacted in three separate sections.  The
statements of relevant and material fact in certified records of
the coroner or medical examiner, kept in the ordinary course of
business, are all admissible in evidence, as long as the preparers
of the reports are available for examination upon the request of
either party.  Such admissible facts include measurements of the
scene, descriptions of the wounds, and medical reports, including
toxicology reports, concerning the deceased.  Assessments of the
cause of death have more limited admissibility: the coroner's
verdict, concerning the cause and material circumstances
surrounding the death (see 55 ILCS 5/3-3025 (West 1994)), is
entirely inadmissible in all civil proceedings for damages.  735
ILCS 5/8-2201 (1994).  Only the coroner's protocol or autopsy
report is admissible as evidence of the cause of death, again
providing that the preparer is available by subpoena for
examination.  Section 115-5.1 renders the toxicology report here
admissible.
     Plaintiff claims that the court should not have admitted the
report because the pathologist drew the blood under an
unconstitutional statute, section 11-501.6 of the Illinois Vehicle
Code (625 ILCS 5/11-501.6 (West 1992)).  The pathologist drew the
blood pursuant to section 3-3013 of the Counties Code (55 ILCS 5/3-
3013 (West 1992)), which requires withdrawl of a blood specimen
from all deceased car drivers in cases of accidental death
involving motor vehicles.  Plaintiff raises no constitutional
objection to this statute.  The unconstitutionality of section 11-
501.6 of the Ilinois Vehicle Code is simply irrelevant to this
case.
     Plaintiff asserts that defendants here failed to present a
complete foundation for the introduction of the toxicology report,
in that defendants did not prove full compliance with all
procedures prescribed by section 3-3013, and defendants presented
no other evidence of Steward's intoxicated behavior.  As the court
pointed out in Wade v. City of Chicago Heights, 216 Ill. App. 3d
418, 431-38, 575 N.E.2d 1288 (1991), section 11-501(a)(1) of the
Vehicle Code specifically proscribes driving with a blood-alcohol
concentration in excess of .10 (625 ILCS 5/11-501(a)(1) (West
1992)), and evidence that a driver violated that statute is
admissible evidence of negligence even without evidence of
intoxication.  Defendants did not need evidence of intoxication as
a prerequisite for admission of the toxicology report.  The trial
court correctly instructed jurors to consider evidence of the
statutory violation in assessing negligence.  Wade, 216 Ill. App.
3d at 437-38.
     Defendants did not prove that the pathologist drew Steward's
blood within six hours of his death, although the Counties Code
instructs coroners to draw blood for toxicological testing within
that time.  55 ILCS 5/3-3013 (West 1992).  The sole witness from
the medical examiner's office did not know when the pathologist
drew the blood.
     Courts generally allow public records into evidence based in
part on the presumption that public officials, with no motive to
falsify records, will perform their assigned duties properly. 
Department of Conservation v. First National Bank, 36 Ill. App. 3d
495, 504, 344 N.E.2d 11 (1976); M. Graham, Cleary & Graham's
Handbook of Illinois Evidence 803.12, at 663 (5th ed. 1990).  To
overcome this presumption, the party challenging such records has
the burden of presenting evidence to show that the records are
unreliable.  People v. Graney, 234 Ill. App. 3d 497, 503, 599 N.E.2d 574 (1992); M. Graham, Cleary & Graham's Handbook of
Illinois Evidence 803.12, at 663 (5th ed. 1990).  
     Plaintiff here did not meet the burden of showing a statutory
violation that might cast doubt on the reliability of the records. 
Plaintiff did not even exercise the right to subpoena Dr. Kay, the
pathologist who requested the toxicology report, to determine
whether pathologists drew the blood within the statutorily required
six hours.  The minor discrepancy between the name on the
toxicology request, James Stewart, and the name of the deceased, is
not sufficient to cast doubt on the procedures used or the
relevance of the report, especially because James Stewart had the
same file number and description as deceased here.
     Section 115-5.1 establishes special requirements for
determining admissibility of the public documents at issue here. 
The section requires certification of the record, which the medical
examiner must keep in the ordinary course of business, and the
record's preparer must be available to either party by subpoena. 
Since defendants met the foundational requirements for this
relevant evidence, and plaintiff presented no evidence to show the
medical examiner failed to use the appropriate procedures, the
trial court correctly admitted the toxicology report into evidence.
     Finally, plaintiff complains about remarks defense counsel
made in closing argument.  Defense counsel said, "Counsel went into
this routine of --."  When plaintiff objected, defense counsel
offered to rephrase:
          "Counsel then suggested to Mr. Crissell, well you
     should have [gone] to the right ***.  You should have
     performed some type of a zigzag maneuver to get back to
     the other side.
          I put to you, ladies and gentlemen, that Counsel was
     not in the cab of the truck that night.  Mr. Crissell was
     in the cab of that truck, and he made a decision that he
     could not perform any of these alternate *** maneuvers in
     order to prevent himself from blocking that roadway.
                                   * * *
          *** Counsel mentioned that Mr. Crissell was not
     properly trained on the placement of triangles.  *** And
     then Counsel did a maneuver.  He put them together in 30
     seconds.  Putting together the triangles in 30 seconds in
     your cab doesn't do it, folks.  *** You [have] to place
     them out."
     The comments did not egregiously mischaracterize plaintiff's
arguments or amount to a personal attack on plaintiff's attorney. 
See Lewis v. Cotton Belt Route-St. Louis Southwestern Ry. Co., 217
Ill. App. 3d 94, 121, 576 N.E.2d 918 (1991).  The comments were not
so inappropriate as to fall outside the bounds of fair response to
the arguments plaintiff raised.  See Coffey v. Hancock, 122 Ill.
App. 3d 442, 451, 461 N.E.2d 64 (1984).
     For the reasons stated above, we affirm the judgment of the
trial court.
     Affirmed.
     RAKOWSKI and TULLY, JJ., concur.