People v. Hood

JUSTICE COOK, dissenting:

I respectfully dissent and would affirm the decision of the trial court. I disagree with the trial court’s exclusion of Dr. Hindman’s testimony regarding blood-alcohol levels during the State’s case in chief, but I agree with the court that the testimony should at least have been admitted during rebuttal.

The evidence indicated defendant was drinking between 1:30 and 2 p.m. on the day of the accident. The accident occurred shortly before 3 p.m. Defendant’s blood-alcohol level was 0.077 at 5:40 p.m. Dr. Hind-man testified that defendant’s blood-alcohol level at the time of the accident was probably 0.114. It is common knowledge that immediately after the consumption of alcohol, the body goes through a period of absorption, or rising blood-alcohol level, and then through a process of elimination, or falling blood-alcohol level. People v. Beck, 295 Ill. App. 3d 1050, 1062 , 693 N.E.2d 897, 905 (1998) (only natural for blood-alcohol level to diminish after several hours). Experts in other cases have testified that alcohol is eliminated from the body at an average rate of 0.015 to 0.02 per hour in 85% of males. See People v. Latto, 304 Ill. App. 3d 791, 797 , 710 N.E.2d 72, 77 (1999). Defendant’s blood-alcohol level at 5:40 p.m. was only 0.003 less than 0.08.

The basic rule of discovery in criminal cases is that the State, upon written motion, is required to disclose the names and addresses of witnesses. 188 Ill. 2d R. 412(a)(i). The State is not required to set out what the witnesses will testify to, although the State is required to disclose any written or recorded statements, or “substantially verbatim reports” of oral statements, which of course may be used for impeachment. 188 Ill. 2d R. 412(a)(i); cf. 188 Ill. 2d R. 412(a)(ii) (where the statement is made by the accused, the prosecution must disclose “the substance of any oral statement”). Absent a showing of an intentional tactic to prevent disclosure, there is no requirement that oral statements in the State’s possession or control be reduced to writing. People v. Lasley, 158 Ill. App. 3d 614, 634 , 511 N.E.2d 661, 676 (1987); People v. Williams, 262 Ill. App. 3d 808, 823-24 , 635 N.E.2d 653, 664 (1994). The question before the court is whether the existing notes in the State’s file constitute “substantially verbatim reports,” not whether defense counsel would be surprised or whether it would be a good idea for the State to prepare a more thorough report. 188 Ill. 2d R. 412(a)(i). Defense counsel may avoid surprise by interviewing the witnesses who have been disclosed. Lasley, 158 Ill. App. 3d at 634-35 , 511 N.E.2d at 675-76 .

Rule 412 requires little more in the case of experts, only the disclosure of their “reports or statements,” including results of examinations or tests, and disclosure of the expert’s qualifications. 188 Ill. 2d R. 412(a)(iv). “Statements” apparently means formal statements similar to reports, or examination and test results, and not everything that is said by an expert prior to his testifying. “Rule 412 does not require that every conversation with witnesses during the course of investigation be reduced to writing.” People v. Davis, 105 Ill. App. 3d 129, 132 , 434 N.E.2d 13, 15 (1982) (doctor and nurse allowed to testify in reckless homicide case despite argument that listing of names was insufficient to put defendant on notice they would be asked their opinion on issue of intoxication).

The majority argues that the prosecution confused the defense when it attached Dr. Hindman’s autopsy report indicating the cause of death and did not alert defense counsel to Dr. Hindman’s expertise in reverse extrapolation. “Had defense counsel been aware of such testimony, he could have attempted to call his own experts to refute Dr. Hindman’s conclusions.” 343 Ill. App. 3d at 1253. Really? Defense counsel could not anticipate the argument that a blood-alcohol level of 0.077 at 5:40 p.m. might indicate a blood-alcohol level of more than 0.08 three hours earlier? In the unlikely event any expert would ever dispute that defendant earlier had a blood-alcohol level greater than 0.077, defense counsel surely would have called him, whether Dr. Hindman testified or not.

As the majority points out, civil discovery rules require the parties to identify the subject on which the expert witness will testify and the opinions the expert will offer. 177 Ill. 2d R. 213(g). It is a mistake to introduce the complexities of civil discovery rules into criminal cases. See Weber, 264 Ill. App. 3d at 316, 636 N.E.2d at 906 (“defendant’s reliance on Supreme Court Rule 220 is misplaced”). The majority’s argument that the doctor’s testimony, the doctor’s calculations, should have been disclosed “under the spirit of the rule” (343 Ill. App. 3d at 1253) is not persuasive. The best indicator of what was intended by Rule 412 is its language, and that language does not require disclosure of the substance of an expert’s testimony.

The fact that the State was aware of what Hindman would testify to before questions were posed to him is irrelevant. Even with respect to exculpatory or mitigating information (where the State has a special obligation), the duty to disclose “must be viewed in light of the information available to the State when the material is disclosed.” (Emphasis added.) 188 Ill. 2d R. 412, Committee Comments, at lxviii. The duty to disclose is not “subject to continuous updating.” 188 Ill. 2d R. 412, Committee Comments, at lxviii.

As the majority points out, because the State may not know if a witness will be called in rebuttal until the defense testimony is heard, the State need not inform the defense of its intention to call a rebuttal witness until that intention is formed. 343 Ill. App. 3d at 1254. That is true even if the State knows who the potential rebuttal witness is and even if the witness has given a written statement. The State need only disclose “persons whom the State intends to call as witnesses.” 188 Ill. 2d R. 412(a)(i). The State may have been satisfied with its case in chief, including Officer Tandy’s testimony that defendant at the scene had said he had only two beers, until defendant took the stand and repeated that testimony under oath. At that point the State could properly have concluded that defendant was lying, and it needed something more to refute that lie. The State was not required to anticipate that defendant would perjure himself. I also reject the majority’s argument that Dr. Hindman’s testimony did not rebut defendant’s testimony that he had consumed fewer than three beers. Finally; I suggest that IPI Criminal 4th No. 23.30 could have been given even without Dr. Hindman’s testimony. A reasonable jury could conclude that a defendant who has a blood-alcohol level of 0.077 at 5:40 p.m. had a blood-alcohol level greater than 0.08 before 3 p.m. A jury may rely on its common experiences in life, including the fact that the effects of alcohol consumption diminish over a period of hours.