Opposition Brief — Young v. Illinois

FILED

(3) JAN 26 1985

No. 84-1022 ALEXANDER L. STEVAS,

ices

In THe

Supreme Court of the Anited States

Ocroser Term, 1984

JOHN W. YOUNG,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari To The

Appellate Court Of Illinois, Third District

RESPONDENT'S BRIEF IN OPPOSITION

New F. Hartican

Attorney General of Illinois

Jus Wrye-Banks

Solicitor General of [linois

Marx L. Rorert *

Assistant Attorney General

188 West Randolph Street, Suite 2200

Chicago, Illinois 60601

(312) 793-2570

Attorneys for Respondent

Euvitzen M. Fravm

Assistant Attorney General

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 32141—50—1-24-85)

i

QUESTIONS PRESENTED FOR REVIEW

Whether this Court is without jurisdiction as the fed-

eral question presented was not raised or decided in the

state court below.

Whether the petitioner has presented a substantial fed-

eral question regarding the admission of business records.

ii

TABLE OF CONTENTS

PaGE(s)

QUESTIONS PRESENTED FOR REVIEW .. i

TABLE OF AUTHORITIES ................. iii

CUTMION SLOT oo nies eee es 1

FUMMIOOTION ono ancccccccssdcccveverclaces 2

STATEMENT OF FACTS ...... POP RAS tna 2

REASONS FOR DENYING THE WRIT:

I

THIS’COURT IS WITHOUT JURISDICTION

AS THE FEDERAL QUESTION PRESENTED

WAS NOT RAISED OR DECIDED IN THE

STATE COURS GRO icocccadussseeenes 3

II.

PETITIONER HAS NOT PRESENTED A

SUBSTANTIAL FEDERAL QUESTION RE-

GARDING THE ADMISSION OF BUSINESS

IMAI csccccovusctevcrvcissusvninsens 5

CUDA ciccdevsssscesveeusereaaenien 9

ili

TABLE OF AUTHORITIES

CASES: PAGE(S)

California v. Green, 399 U.S. 149 (1970) ......

Cardinale v. Louisiana, 394 U.S. 487 (1969) ...

Nussbaum Trucking v. Illinois Commerce Comm.,

99 Ill. App. 3d 741, 425 N.E.2d 1229 (1981) .

Ohio v. Roberts, 448 U.S. 56 (1980) ...........

People v. Bovio, 118 Ill. App. 3d 836, 455 N.E.2d

I ooh va ndavsnedanss

EE na baccosedsasdcacdasenseceesaces

Street v. New York, 394 U.S. 576 (1969) ......

United States v. Ullrich, 580 F.2d 765 (5th Cir.

ERP TT Torr TTT TTT eee

MISCELLANEOUS:

Fed. R. Evid. 803, Notes of Advisory Committee

on Proposed Rules .......ccccccccccccccess

Ill. Rev. Stat. 1981, ch. 38, par. 115-5 ........

6

3

7

No. 84-1022

In THE

Supreme Court of the Anited States

Octoser Term, 1984

JOHN W. YOUNG,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition For A Writ Of Certiorari To The

Appellate Court Of Illinois, Third District

RESPONDENT'S BRIEF IN OPPOSITION

OPINION BELOW

The Appellate Court of Illinois, Third District, affirmed

the revocation of petitioner’s probation in an unpublished

order, No. 3-83-0311, dated February 10, 1984. The text

of that order is set out in the petition for a writ of cer-

tiorari as Appendix A. A petition for rehearing was denied

by the court on March 29, 1984, and a petition for leave

to appeal to the Illinois Supreme Court was denied on

October 2, 1984.

=

JURISDICTION

The jurisdiction of this Court is invoked by petitioner

under 28 U.S.C. §1257(8). As treated more fully below,

however, the respondent submits that this jurisdiction is

not properly invoked. Alternatively, respondent maintains

the petitioner has not shown any good reason for this

Court to exercise its sound judicial discretion and grant

the petition for a writ of certiorari.

STATEMENT OF THE CASE

Respondent adopts the statement of facts contained in

the Illinois Appellate Court order (Appendix A of Peti-

tion) and incorporates those facts by reference.

-

REASONS FOR DENYING THE WRIT

I.

THIS COURT IS WITHOUT JURISDICTION AS THE

FEDERAL QUESTION PRESENTED WAS NOT RAISED

OR DECIDED IN THE STATE COURT BELOW.

Petitioner has claimed jurisdiction by this Court under

28 U.S.C. §1257(3) which provides in part that a decision

by the highest court of a state may be reviewed “where

any title, right, privilege or immunity is specially set up

or claimed under the Constitution ... of . . . the United

States.” However, this Court has firmly established that

it will not decide federal constitutional issues raised for

the first time on review of state court decisions under

this jurisdictional statute. Cardinale v. Louisiana, 394

U.S. 487 (1969). Respondent submits, therefore, that this

Court is without jurisdiction as petitioner did not specifi-

cally set up or claim the Sixth Amendment question now

raised in the instant petition before any state court below.

Petitioner states the issue before this Court is “whether

evidence admitted as a business record through the tes-

timony of a non-supervising custodian of the business

record who possesses no knowledge regarding the pro-

cedure used to make the record nor safeguards im-

plemented to insure its accuracy constitutes a violation

of an accused’s constitutionally protected right to confront

witnesses against him.” (Petition at p. 1) The issue as

presented to the state courts, however, was not framed

in federal constitutional terms, but rather as a question

of the admissibility of the evidence under the business

record exception to the hearsay rule.

wthice

At his probation revocation hearing, petitioner objected

to the testimony of a witness regarding the contents of

a microfilmed record which she did not prepare, but only

received for filing, storage and retrieval. The witness was

an employee of the National Automobile Theft Bureau

(N.A.T.B.). (C. 110, R. 23) That organization receives ship-

ping information containing vehicle identification numbers

and component part numbers from the manufacturers of

Harley-Davidson motorcycles. (C. 110, R. 24-25) This in-

formation is received on microfilm from the manufacturers

and the microfilm is filed and stored by the N.A.T.B. (C.

110, R. 29-30) The witness supervised the filing and keep-

ing of these microfilms. (C. 110, R. 29) At the request

of the prosecution, the witness had viewed the microfilm

records to determine the vehicle identification number

which corresponded to a component part number supplied

by the prosecution and had prepared an affidavit contain-

ing the information she obtained from the microfilm rec-

ord. (C. 110, R. 25-26)

The basis of petitioner’s objections to the testimony of

the witness was that she had no first hand knowledge

as to the accuracy or preparation of data contained in the

microfilm records. (C. 110, R. 26, 31-32, 33, 36) While ad-

mitting the witness’ testimony over objection, the trial

court excluded the affidavit. On his motion for a new trial,

petitioner again argued that the witness had no personal

knowledge as to the original entries on the microfilm rec-

ords and that her testimony was therefore inadmissible

hearsay. (C. 111, R. 3-5) In its unpublished order, the Illi-

nois Appellate Court stated, “It is the defendant’s prin-

cipal assignment of error on this appeal that the trial

court should not have admitted the testimony of [the wit-

ness] under the business record exception.” (See Appen-

dix A of Petition)

—-

Petitioner had consistently argued, therefore, that the

witness’ lack of personal knowledge of the making of the

records she stored precluded their qualification as business

records and rendered her testimony as to their contents

incompetent. There had been no express or direct conten-

tion that the admission of the records constituted a viola-

tion of petitioner’s right to confrontation. This is made

evident by the Illinois Appellate Court order which con-

tains no reference to any such federal question, but rather

cites to the Illinois statute governing the admission of

business records in concluding that the records referred

to in this case were properly considered as business rec-

ords. This Court has held that “when the highest state

court has failed to pass upon a federal question, it will

be assumed that the omission was due to want of proper

presentation in the state courts, unless the aggrieved par-

ty in this Court can affirmatively show the contrary.”

Street v. New York, 394 U.S. 576, 582 (1969). As no federal

question was either raised or passed upon in the state

court below, the instant petition for a writ of certiorari

should be denied for want of jurisdiction.

II.

PETITIONER HAS NOT PRESENTED A SUBSTANTIAL

FEDERAL QUESTION REGARDING THE ADMISSION OF

BUSINESS RECORDS.

Petitioner asserts that this Court should exercise its dis-

cretion to review tle judgment of the Illinois Appellate

Court in order to determine whether the admission of

business records based upon the testimony of a sponsor-

ing witness who has no personal knowledge of the making

of the entries in those records violates the Sixth Amend-

ment right to confrontation. Petitioner acknowledges, how-

ever, that trial judges are afforded considerable discretion

=§~

in determining whether a document qualifies for admission

as a business record and that the sponsoring witness need

not have been the person who prepared or even super-

vised the preparation of the record where the circum-

stances indicate the trustworthiness of the offered rec-

ord. (Petition at pp. 13, 15-16) Thus, the gravamen of the

issue presented by the petitioner is, in his own words,

the problem “of defining the appropriate degree of trust-

worthiness necessary in order to relieve the State of its

responsibility to bring forth as a sponsoring witness either

the person who made the entry or supervised and has

knowledge regarding the procedure used to make the en-

tries and insure reliability.” (Petition at p. 16) Respondent

submits that this does not constitute a substantial fed-

eral question, but is simply a matter of state evidentiary

law.

In California v. Green, 399 U.S. 149, 155 (1970), this

Court observed that:

While it may be readily conceded that hearsay rules

and the Confrontation Clause are generally

to protect similar values, it is quite a different

> Sans tok Gn onacleg & Gengiate sek tie te

Confrontation Clause is nothing more or less than a

codification of the rules of hearsay and their excep-

tions as they existed historically at common law.

Further, this Court has stated that it “has not sought

to ‘map out a theory of the Confrontation Clause that

would determine the validity of all hearsay exceptions.’ ”

Ohio v. Roberts, 448 U.S. 56, 64-65 (1980) (citing Califor-

nia v. Green, 399 U.S. at 162). The admission of business

records as an exception to the hearsay rule without a

showing of the unavailability of the maker is grounded

on the theory that such records have a special indicia of

reliability based in part on the regularity of their mak-

= =

ing and the reliance placed on them by business. See Fed.

R. Evid. 803, Notes of Advisory Committee on Proposed

Rules.

In Illinois the statute governing the admission of busi-

ness records in criminal trials provides that:

Any writing or record, whether in the form of an en-

try 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 to make such memorandum

or record at the time of such act, transaction, occur-

= or event or within a reasonable time there-

r.

All other cireumstances of the making of such

writing or record, including lack of personal knowl-

edge by the entrant or , may be shown to af-

fect its wei , but such circumstances shall not affect

its ity.

Ill. Rev. Stat. 1981, ch. 38, par. 115-5. The custodian or

other witness need not have personal knowledge of the

matter recorded. Nussbaum Trucking v. Illinois Com-

merce Comm., 99 Ill. App. 3d 741, 425 N.E.2d 1229 (1981).

In the instant case, the testimony established that the

manufacturer’s shipping records, identifying the vehicle

registration number and component part numbers of mo-

torcycles were routinely supplied to N.A.T.B. on micro-

film and that these microfilm records were not altered

or modified in any manner, but were merely filed and

stored for retrieval. (C. 110, R. 26, 30, 39-40) There is

nothing to indicate that such records were lacking in trust-

worthiness.

Petitioner relies, however, on what he regards as a con-

flict between various Illinois appellate court decisions on

-

the question of establishing the trustworthiness of records

through a custodian witness. An alleged conflict among

the appellate courts of a state in determining the ad-

missibility of business records under a state statute does

not constitute a substantial federal question. The Illinois

Appellate Court distinguished the case of People v. Clark,

108 Ill. App. 3d 1071, 440 N.E.2d 397 (1982) on the grounds

that the record in that case was not kept in the regular

course of business while the records in the instant case

were kept by N.A.T.B. in the regular course of their busi-

ness. (See Appendix A of Petition) People v. Bovio, 118

Ill. App. 3d 836, 455 N.E.2d 829 (1983), which petitioner

now cites, involved banking records generated by a com-

puter system which performed calculations on the data

entered. The records were held inadmissible in the

absence of testimony going to the accuracy of the system

which performed the calculations. The records in the in-

stant case, however, were microfilmed shipping records

which presumably involved no calculation of data.

The testimony adduced at trial established that the rec-

ords in the instant case, while originally prepared by the

manufacturer, were kept in the regular course of busi-

ness by N.A.T.B. and were routinely used to provide vehi-

cle identification information to law enforcement agencies.

(C. 110, R. 24) This constitutes sufficient indicia of trust-

worthiness to support their admission. See United States

v. Ullrich, 580 F.2d 765 (5th Cir. 1978).

Petitioner has not presented a substantial federal ques-

tion based on the particular facts and circumstances of the

instant case and, accordingly, the petition for a writ of

certiorari should be denied.

ap

CONCLUSION

For the foregoing reasons, the People of the State of

Illinois respectfully request that the petition for a writ

of certiorari be denied.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General of Illinois

JILL WINE-BANKS

Solicitor General of Illinois

MARK L. ROTERT *

Assistant Attorney General

188 West Randolph Street, Suite 2200

Chicago, Illinois 60601

(312) 793-2570

Counsel for Respondent

ELLEN M. FLAUM

Assistant Attorney General

Of Counsel * Counsel of Record