In re N.W.

12/12/97

No. 1-96-4162

IN RE N.W., a Minor ) APPEAL FROM THE
(THE PEOPLE OF THE STATE OF ILLINOIS, ) CIRCUIT COURT OF
) COOK COUNTY.
Petitioner-Appellee, )
)
v. )
)
N.W., a minor, ) HONORABLE
) JULIA DEMPSEY,
Respondent-Appellant). ) JUDGE PRESIDING.

JUSTICE ZWICK delivered the opinion of the court:
On August 31, 1995, respondent N.W. (then 13 years old) was
adjudicated delinquent for having committed aggravated criminal
sexual assault against a nine-year-old boy. Respondent was
placed on probation for two years with the condition that he
reside in a secure juvenile facility. On August 14, 1996, a
petition for violation of probation by respondent was filed,
based upon two incidents of fighting at his Wisconsin residential
treatment facility. Following a hearing, respondent was found in
violation of probation and committed to the Illinois Department
of Corrections. On appeal, respondent contends that the trial
court erred in allowing the State to introduce into evidence
incident reports from the facility under the "business records"
exception to the hearsay rule. He argues that no foundation was
laid for these reports, and that the reports would have been
inadmissible because they were prepared in anticipation of
litigation or discipline and therefore did not qualify under the
business records exception. He also argues that the judgment
must be reversed because the reports constituted the only
evidence that he violated probation.
The petition for violation of probation alleged that on July
14, 1996, respondent struck another facility resident in the face
with his fist, knocking off the resident's glasses and cutting
the resident's nose. The petition also alleged that on August 5,
1996, respondent initiated a fight with another facility
resident.
Prior to the start of the hearing, the State represented
that it would be proceeding with the introduction of the
facility's documents under the business records exception to the
hearsay rule. Respondent's counsel objected, stating that the
source of these statements was not identified. He also contended
that the relationship of the persons making the reports
describing the incidents to the source of the statements was not
indicated. The trial court overruled the objection and concluded
that it had been "[t]he court's practice basically over the last
11 years that the reports from probation officers are business
records received in the ordinary course of their duty."
Cook County probation officer Mark Dean-Myrda testified that
he was the supervising probation officer in charge of respondent.
He stated that because respondent's original probation officer
was no longer in the office and respondent was in placement, it
was routine practice for a supervisor to oversee his case.
During the course of this supervision, he received numerous
reports from the facility detailing respondent's progress, and he
spoke with various members of the facility's staff regarding
respondent's progress. The written reports included routine
treatment and progress reports, as well as unusual incident
reports which detail a major rule violation.
In early August 1996, Dean-Myrda received by mail in the
normal course of business, an "unusual incident report"
pertaining to respondent (State's Exhibit No. 1) from Phyllis
Nettlesheim at the facility. This three-page report, dated July
14, 1996, was authored by Jean Nicholas Glaser. The report
detailed a fight involving respondent. Dean-Myrna was familiar
with Phyllis Nettlesheim, the current primary therapist for R.W.,
as well as his previous primary care therapist. When
respondent's counsel objected that no foundation had been laid
for the admission of the record, the trial court held:
"I believe that the recipient of a
record in the normal course of business who
maintains that in the normal course of
business provides to serve a foundation to
enter that record. I think the fact that the
probation officer has testified that that's
part of his job to receive these reports and
maintains them when he has on his caseload a
minor who is on probation. And that he has
familiarity with the facility himself and at
least a couple of their staff. This comes in
as an exception to the hearsay rule because
with business records there is a belief to be
sufficient of right.
I do not believe that there is much
doubt that this is a record that came from
[the facility]. I don't believe it's forged.
And based on that, I am going to admit it.
The weight that I give it is a different
matter, but I do think it's admissible and I
will admit it."
The assistant State's Attorney then offered a second
incident report (State's Exhibit No. 2) from the facility
concerning respondent. The August 5, 1996, report was prepared
by staff member Brian Binder. This report was received by Dean-
Myrna in the same manner as the previous report. Over the same
defense objection, the report was admitted into evidence.
The State also introduced a physical intervention report
(State's Exhibit No. 3) dated August 6, 1996 received from
Bradley R. Block, a case worker at the facility. Dean-Myrna
received this report in a similar manner in which he received the
other reports. Again, over defense objection, the report was
admitted into evidence. None of these exhibits are included in
the record on appeal.
On cross-examination, Dean-Myrda stated that none of the
documents from the facility were prepared by anyone in the
probation department who had personal knowledge or actually saw
the events reflected in these reports. Dean-Myrda admitted that
he did not have personal knowledge of who wrote these reports or
of the events contained in the reports. Additionally, Dean-Myrna
had no personal knowledge of the manner in which the facility
kept their records.
After a motion for a directed finding was denied, respondent
testified that following a baseball game on July 14, 1996, a
person named Andrew kicked him and respondent then hit Andrew in
the face. Respondent testified that as they were packing up
their baseball equipment, Andrew became upset and kicked him, so
he struck Andrew. Respondent further stated that he struck
Andrew, the facility resident because:
"at the time *** he caught me off guard
because when I was going to put my glove
down, he kicked me."
Respondent testified that he could not remember anything unusual
happening on August 5, 1996, when he was in the cafeteria for
dinner.
After hearing the evidence, the trial court reviewed the
State's exhibits admitted into evidence. State's Exhibit No. 1,
indicated that on July 14, 1996, respondent struck a person in
the face and also slammed another resident into a wall. After
facility staff witnessed the punch, respondent was immediately
removed from the scene. The trial court found this evidence
sufficient to support the first allegation that respondent did
not comply with the facility's rules, because he initiated a
fight with another resident.
The court next found that State's Exhibit No. 2 indicated
that on August 5, 1996, respondent started a fight in the
lunchroom. The court found this evidence sufficient to support
the second allegation that respondent failed to comply with the
facility's rules by engaging in physical fights which are clearly
not part of the facility's program.
At the dispositional hearing, the probation officer
indicated that respondent, who was 15 years old, was recently
expelled from the facility and transferred to the Department of
Corrections because of his violent behavior toward others in the
program. The trial court committed respondent to the Department
of Corrections with the recommendation that he be referred to a
new sex offender treatment program.
On appeal, respondent contends that the trial court erred in
allowing the State to introduce into evidence the facility's
incident reports under the "business records" exception to the
hearsay rule. He argues that no foundation was laid for these
reports, and that even if a foundation had been properly laid,
they would have been inadmissible because they were prepared in
anticipation of litigation and/or discipline and therefore did
not qualify under the business records exception.
Initially, we note that these reports are not included in
the record on appeal. It is the duty of the appellant to provide
all documentation pertinent to issues raised on appeal supporting
the claim of error and in the absence of such record, it is
presumed that the trial court's judgment conformed to the law and
had a sufficient factual basis. Bank of Illinois v. Thweatt, 258
Ill. App. 3d 349, 360, 630 N.E.2d 121 (1994). Without these
reports, it is difficult to determine exactly what the trial
court relied upon in making its determination, and we may presume
that the trial court's ruling was correct. Foutch v. O'Bryant,
99 Ill. 2d 389, 393-94, 459 N.E.2d 958 (1984). However, we
choose to address the merits of this issue and find reversible
error.
Like other evidentiary rulings, the decision of whether to
admit business records is within the sound discretion of the
trial court, and such determination will not be reversed absent
an abuse of that discretion. People v. Morrow, 256 Ill. App. 3d
392, 396, 628 N.E.2d 550 (1993). For example, in People v.
Turner, 233 Ill. App. 3d 449, 455, 599 N.E.2d 104 (1992), a
computer printout of periodic imprisonment records was held to be
admissible during the defendant's probation revocation hearing
both as an official record and as a business record. In People
v. Walsh, 273 Ill. App. 3d 453, 652 N.E.2d 1102 (1995), a
probation officer was allowed to testify at a probation
revocation hearing based on the restitution ledger maintained by
the probation department.
In a criminal proceeding, the foundation requirements for
admission of a writing or record under the business records
exception are that: (1) the writing or record was made as a
memorandum or record of the act, transaction, occurrence or
event; (2) it was made in regular course of business; and, (3) it
was the regular course of the business to make such record at the
time of such transaction or within a reasonable time thereafter.
In contrast, records are inadmissible if they were, "made by
anyone during an investigation of an alleged offense or during
any investigation relating to pending or anticipated litigation
of any kind." 25 ILCS 5/115-5(a) (West 1994); People v.
Tsombanidis, 235 Ill. App. 3d 823, 835, 601 N.E.2d 1124 (1992);
725 ILCS 5/115-5(c)(2) (West 1992). The credibility of a
business record depends upon the regular, prompt, and systematic
nature of the entry and the fact that it is relied on in the
operation of the business. People v. Tsombanidis, 235 Ill. App.
3d at 835.
At the revocation hearing, respondent made no objection that
the investigative reports were prepared in anticipation of
litigation and/or discipline. Instead, respondent objected
solely on the grounds that the State failed to establish an
adequate foundation supporting the reliability of the records.
Normally objecting to the admissibility of evidence on one basis
waives consideration of its admissibility on another basis.
People v. Canaday, 49 Ill. 2d 416, 423-24, 275 N.E.2d 356 (1971).
Had respondent specifically objected that the reports were
prepared in anticipation of pending discipline, the State and the
trial court could have addressed this issue, but respondent did
not. Our review in this regard is rendered more difficult
because the exhibits are not in the record, but we shall consider
whether there was an adequate foundation to admit the incident
reports under the business records exception to the hearsay rule.
At a probation revocation hearing, the State has the burden
of going forward with the evidence and proving the violation of
probation by a preponderance of the evidence while using only
competent evidence. 730 ILCS 5/5-6-4(c) (West 1994); People v.
Bedenkop, 252 Ill. App. 3d 419, 422, 625 N.E.2d 123 (1993). A
trial court's ruling on a petition to revoke probation will not
be disturbed on appeal unless it is against the manifest weight
of the evidence. People v. Davis, 216 Ill. App. 3d 884, 888, 576 N.E.2d 510 (1991).
Hearsay evidence is not competent evidence in probation
revocation proceedings (In re McMillan, 51 Ill. App. 3d 940, 945,
367 N.E.2d 494 (1977); People v. Wilson, 44 Ill. App. 3d 15, 17,
357 N.E.2d 842 (1976)), therefore, hearsay testimony is not
competent to sustain the State's burden of proof, at least over
defendant's objection. People v. White, 33 Ill. App. 3d 523,
528, 338 N.E.2d 81 (1975); People v. Lewis, 28 Ill. App. 3d 777,
781, 329 N.E.2d 390 (1975).
On its face, the facility incident reports appear to fall
within the broad scope of the business records exception (725
ILCS 5/115-5(a) (West 1994); 134 Ill. 2d R. 236(a)), because the
department of probation is required to prepare and keep such
incident reports. However, People v. Smith, 141 Ill. 2d 40, 73,
565 N.E.2d 900 (1990), holds that prison incident reports are not
admissible under the business records exception to the hearsay
rule when offered to prove the truth of the disciplinary
infractions or confrontations between prison employees or law
enforcement personnel or prison inmates. The trial court in
People v. Smith refused to admit the contents of prison incident
reports during the guilt phase of the trial. The supreme court
held that under section 115-5 of the Code of Criminal Procedure
(725 ILCS 5/115-5(a) (West 1994)), the reports were found to be
documented generally with an eye toward some form of subsequent
discipline and created a serious concern regarding defendant's
right to confront the witnesses against him. People v. Smith,
141 Ill. 2d 72, 76-79. The supreme court held that prison
incident reports lacked "the necessary earmarks of
trustworthiness and reliability generally attendant to regularly
kept business records." People v. Smith, 141 Ill. 2d at 73. The
supreme court also found it of little consequence that the
department was required by statute to keep such reports. People
v. Smith, 141 Ill. 2d at 74.
We also acknowledge that the Illinois Supreme Court in
People v. Ward, 154 Ill. 2d 272, 329, 611 N.E.2d 590 (1992), held
that People v. Smith does not preclude the State from introducing
prison incident reports into evidence during the aggravation
stage of a sentencing hearing. See also People v. Westbrook, 262
Ill. App. 3d 836, 857-858, 635 N.E.2d 398 (1992). But the
challenged records here were used as substantive evidence to
prove the State's case. Based upon the record before us, the
probation supervisor's testimony was not sufficient under People
v. Smith to establish the necessary indication of trustworthiness
and reliability necessary to satisfy the underlying purpose of
the business records exception.
Based upon People v. Smith, we find that the incident
reports were inadmissible hearsay and improperly admitted. Since
no other competent evidence was introduced by the State to
sustain its burden of proof, the admission of the incident
reports constitutes reversible error.
Accordingly, the trial court abused its discretion in
admitting the incident reports and the cause must be remanded for
a new probation revocation hearing.
Reversed and remanded.