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People v. Fiddler

NOVEMBER 19, 1968.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MORRIS FIDDLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. RICHARD J. FITZGERALD, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

Rehearing denied December 16, 1968.

Defendant was charged under a two-count indictment with the strangulation murder of Jayne Levin. He was found guilty by a jury and sentenced to a term of twenty to thirty years in the penitentiary. He appeals.

On the date of her death, Jayne Levin was sixteen years of age and attended high school in Chicago. She and defendant, aged seventeen, had "gone steady" for several years.

Raymond Cunningham, the owner and operator of a garage located in the 4500 block of North Elston Avenue in Chicago, testified that about 5:30 p.m. on June 3, 1966, he was in the office of the garage when defendant entered the garage from the alley entrance and requested permission to use one of the washrooms. Cunningham stated that defendant was holding his stomach and complaining that he was sick. Defendant spent three minutes inside the washroom, during which time he made sounds as if ill. Defendant thereafter left the building by way of the same alley exit, but returned several minutes later in an agitated, excited state. He requested Cunningham to accompany him to the alley because he thought "someone has murdered my girl friend, she is turning blue." Cunningham testified that he told defendant he was unable to leave the office, but that he would notify the police. Defendant again left the building by the alley exit, and a customer entered the garage office and engaged Cunningham in conversation. Defendant returned a third time, five or six minutes later, and requested Cunningham to go into the alley and check his girl friend's pulse. At this time the police and fire ambulance were summoned.

Approximately 5:45 p.m. on the date in question Chicago Firemen Foley and Thomas, assigned to a fire department ambulance, received a call to proceed to the vicinity of Elston and Kennicott Avenues in the city. Upon their arrival at the scene, they observed defendant at the mouth of an alley 100 feet from the intersection of Elston and Kennicott Avenues. Defendant appeared to be "highly agitated" and stated to the firemen that his girl friend was "sick" in his parked automobile several hundred feet into the alley. Fireman Thomas testified that defendant ran in front of the ambulance as it proceeded into the alley toward the parked automobile, shouting "come on, hurry up, hurry up, down by the parked car." Police Officer Liszkowski, one of the police officers summoned to the scene, testified that defendant was running back and forth between the ambulance and the squad car which had entered the alley behind the ambulance, shouting "something happened to his girl friend in the car, that he thought she was dead." Officer Wirkus' testimony was much the same as that of his partner, Officer Liszkowski, except that Officer Wirkus did not testify that he heard defendant shout that he thought Miss Levin was dead. Defendant's emotional state at this time was described by the witnesses as "hysterical," "agitated," "highly nervous," and the like.

The firemen and the policemen testified they looked into the parked automobile and observed Miss Levin's body in the front of the automobile on the passenger's side. The body was in a kneeling position on the floor, with the head face downward on the seat. As the body was being removed from the automobile onto a stretcher, Officer Wirkus noticed a handkerchief stuffed into its mouth. Fireman Thomas testified that he removed the handkerchief and that he asked defendant, "Who did this?" to which defendant replied, "I did." While Officer Wirkus stated he did not overhear any conversation between defendant and the others at the scene, Fireman Foley testified that Fireman Thomas had no conversation with the defendant other than to ask him who stuffed the handkerchief into the deceased's mouth, to which defendant replied, "I did."

Miss Levin's body was removed to Forkosh Hospital where a staff physician made an examination. An attempt was made to resuscitate Miss Levin for thirty minutes, but to no avail. The doctor testified that he was unable to say exactly when death occurred. He stated that he observed linear marks or abrasions moving in a circular pattern around the deceased's neck, apparently caused by some form of friction; this testimony was corroborated by a police technician and also by Fireman Foley. The physician was unable to state an opinion as to the cause of the marks and gave no opinion as to the cause of death.

Several police technicians ran various tests on the body of Miss Levin, her clothing, defendant's clothing, and the automobile from which the body was removed. Although there was no sign of sexual molestation and no apparent damage to clothing of recent origin, the deceased's knees and ankles were scraped and lacerated.

Doctor Reese Guttman, a specialist in diseases and disorders of the head area, testified that, in his opinion, ligature strangulation could not have been caused by the handkerchief found in the mouth of Miss Levin.

The only direct evidence of the cause of Miss Levin's death is a certified copy of the coroner's certificate of death issued by the county clerk. It appears from the record that the coroner's physician who performed the autopsy, Dr. Henry, was deceased at the time of trial. Over strenuous objection by the defense, the trial court allowed the certified copy into evidence on the ground that the Vital Statistics Act permits the introduction of such documents into evidence as prima facie evidence of the facts contained thereon. The document was admitted for the limited purpose of showing the cause of Miss Levin's death to be ligature strangulation.

Defendant first maintains that it was error to have admitted the certified copy of the coroner's certificate of death into evidence for the reasons that the coroner's certificate, as a statement of the cause of death, is not based upon the coroner's own medical examination and is therefore hearsay; that the county clerk's certified copy of the coroner's certificate is also hearsay as to the cause of death; and that neither document is given evidentiary status by statute.

Except as authorized by the Act, disclosure of information contained in vital statistics records by the party in custody of those records is prohibited by the Vital Statistics Act. Ill Rev Stats 1967, c 111 1/2, par 73-24. Section 25 of the Act generally designates those parties entitled to disclosure of such information. Ill Rev Stats 1967, c 111 1/2, par 73-25.

Subsections 1, 2 & 3 of section 25 set out the requirements for obtaining a certification of birth or death. The certification shall disclose only the name, sex, date and place of birth or death of the subject party, and the registration number. It is specifically provided that none of the other data appearing in the vital statistics ...


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