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Ashford v. Ziemann

OPINION FILED JANUARY 20, 1984.

BEVERLY ASHFORD, APPELLEE,

v.

WILLIAM ZIEMANN, APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Joseph P. Lavorci, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The plaintiff, Beverly Ashford, brought an action in the circuit court of Cook County pursuant to the Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) to have the defendant, William Ziemann, declared to be the father of her daughter who was born on September 5, 1978. In the circuit court, the jury returned a verdict of non-paternity. The plaintiff appealed to the appellate court raising the following four issues: (1) whether the trial court erred in refusing to admit her daughter's birth certificate into evidence; (2) whether the trial court should have excluded the testimony of one of the defense witnesses; (3) whether remarks made by defense counsel in closing argument were so prejudicial as to require reversal; and (4) whether the verdict was against the manifest weight of the evidence. The appellate court held that the "birth certificate constituted relevant and proper evidence, and that the trial court erred in refusing its admission." (110 Ill. App.3d 34, 38.) The appellate court also held that, since the defendant had "wilfully violated the supreme court rules governing discovery," the trial court had abused its discretion in refusing to bar the testimony of defense witness James Storz. (110 Ill. App.3d 34, 41.) The appellate court did not address the other two issues raised by the plaintiff because of its resolution of the first two issues, and because the court could not foresee that those two issues would arise on remand. The appellate court, with one justice dissenting, reversed the circuit court and remanded the cause for further proceedings consistent with its opinion. The defendant filed a petition for leave to appeal with this court (87 Ill.2d R. 315(a)), and we granted the petition.

The plaintiff and defendant met and began dating in 1965. During the next four years of their relationship, they dated steadily and had sexual relations frequently. During the 1970's, they began to see each other sporadically. The plaintiff testified that she had moved to California in 1969 and returned in 1970 and that when she came for visits to Chicago she would spend a day or two with the defendant before visiting with her family. Plaintiff had not seen the defendant for some time when, on December 10, 1977, she and her roommate, Linnea Desmond, happened to see the defendant while on their way to purchase a Christmas tree. As they were walking down the street, they saw the defendant in his car exiting an alley. Plaintiff knocked on the hood of defendant's car to get his attention. Plaintiff testified that defendant told them that he was on his way to work, but he offered to help them get a tree later. Defendant, a detective for the Chicago police department, drove the two women home and then went to check into work. Plaintiff testified that the defendant returned later in an unmarked police car and that she, the defendant, and her roommate went to buy the Christmas tree. After returning to the plaintiff's apartment to drop off the tree, the plaintiff and defendant went out for a drink. They then went to the defendant's apartment. Defendant left his apartment to return to work to check out while the plaintiff remained in his apartment. Plaintiff testified that when he returned, they had sexual intercourse a couple of times before going to sleep. In the morning, she testified they again had intercourse, showered together, and then went to the Wheel-A-Round restaurant for breakfast. Plaintiff returned to her apartment on the afternoon of the next day, December 11, 1977. This was confirmed by the testimony of Linnea Desmond, the plaintiff's roommate on that date. Ms. Desmond also testified that the plaintiff was wearing the same clothes she had worn the night before. Plaintiff testified that she had sexual intercourse with the defendant again on December 17, 1977, December 31, 1977, and January 20, 1978. On each occasion, they went to defendant's apartment. The plaintiff testified that it was on New Year's Eve, December 31, 1977, that she first told the defendant she thought she was pregnant. Even after the plaintiff told the defendant she thought she was pregnant, they continued to see each other. The defendant went to the plaintiff's apartment for dinner twice during the month of January. The defendant also helped the plaintiff with some car problems she was having during the month of January. He dug her car out of the snow on one occasion and followed her to his mechanic's repair shop, where she left the car to be fixed.

After the month of January 1978, the defendant and plaintiff did not communicate with each other for several months. In July of 1978, the plaintiff testified she called the defendant to discuss their responsibilities toward their unborn child. The plaintiff explained that she waited until July to call the defendant to give him time to get used to the idea of fatherhood. Defendant told plaintiff that the child was not his responsibility and that she should get a lawyer. Plaintiff testified that she had not dated anyone except the defendant since 1976.

Defendant testified at trial to the following. He dated plaintiff from 1965 until 1969. After they stopped dating, they still remained friends. In early December of 1977, he did help the plaintiff and her roommate purchase a Christmas tree. He could not remember the date on which they went to get the tree, but he stated that he used his own car and that he did not take the plaintiff to his apartment that night. Defendant also testified that he remembered the plaintiff being at his apartment on one occasion, which may have been New Year's Eve. On that occasion, he remembered he drove the plaintiff home late at night. Defendant testified that he did not have sexual intercourse with the plaintiff during December of 1977, or January of 1978. Defendant did remember helping the plaintiff with her car problems several times in January of 1978. Defendant testified that he did discuss the plaintiff's pregnancy with her and she did imply he was the father of the child. According to defendant, he had discussed the possibility of marriage with the plaintiff often in the late 1960's. Once, he testified, the plaintiff asked him if he would marry her if he was still single when he reached the age of 35.

In addition to her previous testimony, the plaintiff's roommate, Linnea Desmond, also testified that the defendant took her and the plaintiff to purchase a Christmas tree on December 10, 1977. She remembered the exact date because she had planned a large company party that had been held at the Chicago Yacht Club the night before. She testified that the plaintiff and she had seen the defendant on Barry and Broadway in the afternoon on December 10, 1977. Defendant told them he was on his way to work. Traffic began coming on Broadway, so plaintiff and Ms. Desmond got in the car. Defendant drove them home to their apartment and told them he would return that evening to take them to buy a Christmas tree. Ms. Desmond testified that, when they saw the defendant in the afternoon, he was in a small car, a car which looked like a Chevette. Later when he returned that evening to take them shopping, he was in a different car — "an older model, large car with four doors, very plain — plain looking, not luxurious at all, very used looking, stripped down looking." Ms. Desmond testified that they drove in this larger car to a Christmas-tree lot at Clark and Wrightwood. After choosing the tree they wanted, they placed the tree in the trunk of the car the defendant was driving. After placing the tree in its stand at the plaintiff's apartment, Ms. Desmond testified, the defendant suggested that she and the plaintiff owed him a drink. Since Ms. Desmond did not feel like going out for cocktails, she testified that the plaintiff and defendant went out without her. She stayed home and began decorating the tree. Ms. Desmond next saw the plaintiff about 1 or 2 o'clock in the afternoon on the 11th of December, at which time the plaintiff made a comment to Ms. Desmond regarding how she had put the tree up and done so much. Ms. Desmond testified that on December 18, 1977, the defendant came to pick up the plaintiff at 8 o'clock. Again, Ms. Desmond testified, the plaintiff did not return until the next day in the afternoon. On New Year's Eve, Ms. Desmond testified, the defendant again came to pick up the plaintiff at 8 o'clock. She remembered that the defendant said he was not feeling very well. The plaintiff and defendant were about to leave when the plaintiff went back to her bedroom and came out with a long red robe. Ms. Desmond testified that plaintiff remarked, "I'd better take this along because it was cold there the last time." The witness testified that she stayed in on New Year's Eve. The next time Ms. Desmond saw the plaintiff was on January 1, 1978, at about 2 o'clock in the afternoon. Ms. Desmond also recalled seeing the defendant twice during the month of January when he had dinner at the plaintiff's apartment. She never saw any other gentlemen come to visit the plaintiff or take her out on a date during the months of November and December.

Officer Edward L. Shipley of the Chicago police department, personnel division, also testified at trial. He testified that he maintained the personnel files on the defendant, William Ziemann, for the months of November and December of 1977, and January of 1978. Officer Shipley testified that the defendant did work on December 10, 1977, the third watch, which would mean from 4 p.m. until midnight. He also testified that the defendant worked the third watch on December 17, 1977, January 8, 1978, January 15, 1978, and January 20, 1978. These five dates are the dates on which the plaintiff testified the defendant was working.

James Storz was the only witness that testified for the defense besides the defendant. His testimony is the testimony which the plaintiff asserts should have been excluded. His existence was not revealed to plaintiff's counsel until during the trial when a conference was held in the judge's chambers regarding jury instructions. The bulk of the plaintiff's case in chief had already been presented. Defense counsel stated that he had first interviewed Storz the day before he testified. Plaintiff's counsel was given the opportunity to depose Storz during the trial. Storz was made available at 2 o'clock the afternoon before he testified. Storz testified that he was a bartender who had worked in several taverns in the plaintiff's neighborhood. He allegedly first met the plaintiff in the summer of 1977. Between the time Storz met the plaintiff and November of 1977, he testified, he met her on several occasions for cocktails. He testified that the weekend before Thanksgiving 1977, he again met the plaintiff in a tavern. He alleged that they stayed for several hours and then went to his apartment, where they had intercourse. He testified that he met the plaintiff by chance on two occasions in December of 1977 and, on one of those occasions, they went back to his apartment and had intercourse. On each occasion that the plaintiff allegedly went to Storz' apartment and engaged in sexual intercourse, Storz testified, he awakened while the plaintiff was dressing and preparing to leave and that he only said goodbye. The next time, Storz testified, he saw the plaintiff was in January of 1978. Plaintiff allegedly told Storz at that time that she was pregnant. Storz never testified that the plaintiff told him he was or implied that he was the father of her child. Storz testified that he brought up the possibility of an abortion or adoption and that the plaintiff rejected both of his suggestions. The next time Storz said he saw the plaintiff was at trial. On cross-examination Storz was asked to describe the plaintiff. He described her as being five feet six inches tall, 115 pounds, with brown eyes. He testified that she had "shapely" legs with nothing unusual about them. He also testified that she had no scars or distinguishing marks on her stomach or pelvic area and that her breasts were "34C's." He testified that she usually drank scotch and water or scotch on the rocks. Storz also testified that he "picked up" four or five other women during the calendar year 1977.

Plaintiff testified as a rebuttal witness. She testified that she had never seen Storz before in her life until he walked into the courtroom to testify. She also testified that she is five feet two inches tall, weighs about 105 pounds, has blue eyes, a scar from her naval to her pelvic bone from a myomectomy, a birthmark the size of a quarter on her hip, and that one of her legs is misshapen due to childhood polio. Her right calf never fully developed, and her right leg is shorter and thinner than the left one. Her bra size, she testified, was far from a 34C. She also stated that she drinks nothing but beer or wine spritzers, and that she does not frequent the bars where Storz claimed to have met her.

We will first address the plaintiff's contention that the trial court erred in refusing to admit her daughter's birth certificate. On September 15, 1978, the Chicago Department of Health received a certificate of live birth signifying the birth of the plaintiff's daughter. The certificate, signed by Dr. Stuart Abel, listed the child's name, date, and time of birth, sex, and place of birth. It also listed the plaintiff's name, address, age, and place of birth. The father's name was not listed on the certificate, but the age of the father, 37, and his place of birth, Illinois, were listed. Section 12(4) of the Vital Records Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 73-12(4)) does not permit an unwed mother to place the name of the alleged father on her child's certificate of birth without the written consent of the father or unless a determination of paternity has been made by a court of competent jurisdiction.

During her testimony, the plaintiff, who had signed her child's birth certificate, identified a certified copy of it. The defendant was then called as an adverse witness and asked his date and place of birth. Defendant testified that it was the same as that which appeared on the birth certificate. Plaintiff then sought admission of the birth certificate into evidence. The trial judge sustained the defendant's objection and refused its admission. The judge stated: "The law is very clear that you cannot insert the name of the alleged father without his consent. I am not going to permit by innuendo now that she put the defendant on the stand and identify him as being 37 and living in the City of Chicago."

We agree with the appellate court that the birth certificate constituted relevant and proper evidence and that the trial court erred in refusing its admission. In the plaintiff's complaint, she alleged in paragraph one that she was "on September 5, 1978, delivered of a female child in Cook County, which child is deemed out of wedlock." In his answer to paragraph one, defendant responded that he "neither admits or denies the allegations contained in paragraph 1, not having sufficient knowledge thereof, and demands strict proof thereof." As the appellate court correctly noted, an essential element of a paternity case is that a child was born and was born out of wedlock. (Ill. Rev. Stat. 1981, ch. 40, par. 1351 et seq.) As the dissenting justice in the appellate court points out, section 25 of the Vital Records Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 73-25) sets forth the permissible evidentiary uses of a birth certificate. Subsection 6 of section 25 provides that "[a]ny certification or certified copy of a certificate issued in accordance with this Section shall be considered as prima facie evidence of the facts therein stated." (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 73-25(6).) Subsection 2 of that statute provides that "[t]he certification of birth shall contain only the name, sex, date of birth, and place of birth, of the person to whom it relates." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 73-25(2).) This court has previously interpreted the meaning of these two subsections. In People ex rel. Moran v. Teolis (1960), 20 Ill.2d 95, 105, this court held that these two subsections (actually their predecessors (Ill. Rev. Stat. 1955, ch. 111 1/2, par. 55)), taken in conjunction with one another, mean that a certificate of birth is "only evidence in the trial court of the name, sex, date and place of birth of the child." We hold that the child's birth certificate in this case could be properly admitted into evidence to prove those facts which it certifies.

We also agree with plaintiff's assertion that the birth certificate in this case constituted an exception to the hearsay rule and should have been admitted.

In this case, the plaintiff, at the time of her daughter's birth, made the statement that her daughter's father was 37 years old and that he had been born in the State of Illinois. The plaintiff did testify at trial and was subject to cross-examination concerning this statement. Her statement on the birth certificate was consistent with her testimony that defendant, who was 37 at the time of her daughter's birth and had been born in Illinois, was the father of her child. The defendant in his answer to the plaintiff's complaint had challenged the plaintiff's assertion that he was the father of her child; he demanded strict proof thereof. Also, in contesting this paternity action, the defendant was making a charge against the plaintiff of recent fabrication or improper motive. In People v. Clark (1972), 52 Ill.2d 374, this court held that prior consistent statements are admissible "to rebut a charge or an inference that the witness is motivated to testify falsely or that his testimony is of recent fabrication, [and such] evidence is admissible [to show] that he told the same story before the motive came into existence or before the time of the alleged fabrication. (Lyon v. Oliver, 316 Ill. 292, 303; Cleary, Handbook of Illinois Evidence (2d ed. 1963), sec. 9.12.)" 52 Ill.2d 374, 389.

In People v. Carpenter (1963), 28 Ill.2d 116, this court dealt with the issue of the admissibility of hearsay statements when the declarant is a witness and subject to ...


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