People v. Bauer

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People v. Bauer

State: Illinois

Court: 5th District Appellate

Docket No: 5-09-0300 Rel

Case Date: 07/09/2010

Preview:NO. 5-09-0300
N O TIC E D ecision filed 07/09/10, corrected 08/23/10. T he text of this decision

IN THE APPELLATE COURT OF ILLINOIS

m ay be changed or corrected prior to the filing of a P etition for R ehearing or the disposition of the sam e.

FIFTH DISTRICT ________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Effingham County. ) v. ) Nos. 08-CF-8 & 09-DT-36 ) CHRISTOPHER J. BAUER, ) Honorable ) James J. Eder, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________ JUSTICE WEXSTTEN delivered the opinion of the court: After he was indicted on two counts of felony aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(C) (West 2008)) in the circuit court of Effingham County, the defendant, Christopher J. Bauer, filed a motion to suppress evidence that he alleged the State had obtained by misusing the grand jury's subpoena power. Following a hearing, the circuit court denied the defendant's motion, and after a stipulated bench trial, the defendant was convicted of misdemeanor DUI (625 ILCS 5/11-501(a)(1) (West 2008)), with which he had been charged by information after the indictment had issued. We affirm. BACKGROUND On March 18, 2007, the defendant was involved in a motor vehicle collision in which he and the driver of one of the other vehicles were seriously injured and transported by helicopter to Carle Foundation Hospital (Carle) in Urbana, Illinois. In the course of his medical treatment at Carle, a specimen of the defendant's blood was drawn and tested for serum-alcohol level by hospital personnel.

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Between March 18, 2007, the date of the accident, and January 15, 2008, the date the bill of indictment was issued, the grand jury issued a subpoena duces tecum on two occasions. A transcript of the grand jury proceedings on April 17, 2007, reveals that the Effingham State's Attorney appeared before and requested the grand jury to issue the first subpoena duces tecum for the results of the defendant's blood-alcohol test performed during the treatment he received on March 18, 2007. Accordingly, on April 17, 2007, the grand jury issued a subpoena duces tecum directing Carle to produce "to the Effingham County [g]rand [j]ury" records of "any and all blood and/or urine tests done and the results pertaining to [the defendant] for treatment received on or about March 18, 2007 [in addition to] reports *** for purposes of determining blood alcohol concentration of [the defendant]." In response to the subpoena duces tecum , Carle returned to the State's Attorney a document dated May 3, 2007, that indicated, "There were labs drawn, but none of them pertaining to [b]lood [a]lcohol [c]oncentration." At the grand jury proceedings held on May 15, 2007, the State's Attorney appeared before and delivered to the grand jury the documents that had been sent to his office by Carle. The State's Attorney indicated that he had reviewed the documents that Carle had sent because when he received them in the mail, he did not recognize them to be grand jury material. The State's Attorney nevertheless asked the grand jury to release the documents to him so that he might look further into the matter with Carle, because he had a "hard time believing [Carle] did [not] somehow or other run blood alcohol on" the defendant. Accordingly, the grand jury released the documents to the State's Attorney. At the grand jury proceedings on August 16, 2007, the State's Attorney requested the grand jury to issue the second subpoena duces tecum to Carle to acquire copies of general hospital records regarding the defendant, in an attempt to acquire blood test results that were not included in the documents returned in response to the grand jury's earlier subpoena.

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During these proceedings, Ron Kilman, the State's Attorney's investigator, testified that Carle had disclosed that its emergency room might have administered on the defendant a preliminary breath test, as opposed to a blood evidence test. Accordingly, on August 16, 2007, the grand jury issued a second subpoena duces tecum requesting Carle to produce by September 13, 2007, to "the Effingham County [g]rand [j]ury" the "[g]eneral [h]ospital records pertaining to [the defendant] for treatment received on or about March 18[] and March 19, 2007." The first and the second subpoenas duces tecum were directed to Carle, the hospital where the defendant received treatment for his injuries. Both requested the production of documents to the Effingham County grand jury at its address, and both listed the State's Attorney's name and address on the lower left corner of the subpoena. The "general hospital records" produced by the hospital on August 20, 2007, in response to the second subpoena duces tecum , did not include a record of blood-alcohol testing. The State's Attorney thereafter contacted the hospital, and on October 23, 2007, the hospital personnel disclosed to the State's Attorney the "lab blood alcohol serum results," indicating the defendant's serum-alcohol-concentration test result of .104. At the grand jury proceedings held on November 15, 2007, the State's Attorney appeared before and delivered to the grand jury the Carle documents that included the defendant's serum-alcohol test results. While questioning Trooper Timothy Mehl, the State's Attorney stated, "[A]fter a lot of requests from both yourself and my office, for whatever reason, [Carle] figured out that there were *** documents under one patient number at the hospital," and "they have now sent to the grand jury a couple of more pages of documents that do include a blood alcohol level as opposed to a preliminary breath test that they had also done in the emergency room." The State's Attorney explained that Carle had again mailed the documents to his office and that he had opened them because Carle had not marked the envelope as grand jury material. The State's Attorney asked the grand jury to turn those

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documents over to his office. Accordingly, on November 15, 2007, the grand jury released the materials from Carle to the Effingham County State's Attorney's office. At the grand jury proceedings held on January 15, 2008, a special prosecutor with the appellate prosecutor's office presented evidence seeking an indictment against the defendant. Trooper Timothy Mehl testified regarding the accident of March 18, 2007, and the defendant's .104-serum-alcohol-concentration results. The special prosecutor requested the grand jury to issue a bill of indictment charging the defendant with two counts of aggravated DUI. Accordingly, on January 15, 2008, the defendant was indicted on two counts of aggravated DUI (625 ILCS 5/11-501(d)(1)(C) (West 2008)). On September 16, 2008, the defendant moved to suppress the chemical-test evidence, which he alleged the State had obtained by misusing the grand jury's subpoena power. In his motion to suppress, the defendant alleged that the State had improperly acquired confidential medical information, including the result of the defendant's chemical analysis, by directing Carle to deliver the materials to the State through the use of the subpoena power of the grand jury. In its motion in opposition to exclude the chemical-test evidence, the State asserted that, although some of the materials were misdelivered to the State's Attorney and he screened them prior to presentation to the grand jury, all materials obtained were derived from subpoenas which were properly issued by and returnable to the grand jury. On November 10, 2008, after hearing evidence, the court by docket entry entered its order denying the defendant's motion to exclude the chemical-test evidence. In its order, the circuit court concluded that the defendant had failed to present sufficient evidence to establish an abuse of the grand jury subpoena power by the Effingham County State's Attorney. The court concluded that the blood-alcohol test results were obtained pursuant to a subpoena duly issued by the grand jury pursuant to its statutory powers, pursuant to a

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proper request by the State's Attorney. The circuit court concluded that the State's Attorney first requested the grand jury to issue the subpoena, made the subpoena returnable to the Effingham County grand jury, presented the documents obtained to the grand jury, and formally requested the release of the documents on each occasion. The circuit court concluded that no evidence was presented to demonstrate that the State's Attorney had acted in bad faith or had intentionally caused Carle to return the documents to the State's Attorney's office rather than to the grand jury. In its order, the circuit court further held that, unlike the grand jury subpoena challenged in People v. DeLaire , 240 Ill. App. 3d 1012 (1993), the grand jury subpoenas were issued preindictment, in an effort to determine whether there was sufficient evidence to charge the defendant with felony DUI. The circuit court also held that, unlike People v. Wilson , 164 Ill. 2d 436 (1994), and People v. Feldmeier, 286 Ill. App. 3d 602 (1997), the State's Attorney did not attempt to circumvent the Effingham County grand jury but repeatedly appeared before it to keep it informed and to seek permission to act under its authority. On February 17, 2009, the parties proceeded to a stipulated bench trial on a charge of misdemeanor DUI, with which the State, by information, had charged the defendant on February 12, 2009. At the stipulated bench trial, the State submitted that, if the case were to go to trial, it would present Trooper Mehl's testimony that the defendant's vehicle crossed the centerline of the highway and hit two vehicles and Ronald Thoele's testimony that he and the defendant were consuming alcohol on the night and early morning of March 17 and 18, 2007, and that he was driving a vehicle behind the defendant's vehicle when he saw the defendant's vehicle swerve sharply to the left and collide with the vehicles for no apparent reason. The State also would have presented the testimony of Beth Spence, a phlebotomist employed at Carle, who would have testified that she drew blood from the defendant on March 18, 2007,

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