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June 27, 1994


Appeal from Circuit Court of Woodford County. Nos. 92TR2426, 92CM186. Honorable Charles E. Glennon, Judge Presiding.

As Corrected September 6, 1994. Petition for Rehearing Denied August 2, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Following a jury trial conducted in the circuit court of Woodford County, defendant David Eric Menssen, a/k/a Eric D. Menssen, was found guilty of driving while under the influence of alcohol (DUI) (Woodford County case No. 92-TR-2426). (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(a)(1).) In a consolidated case, the defendant was tried on a charge of assault and his motion for directed verdict at the close of the evidence was granted (Woodford County case No. 92-CM-186). (Ill. Rev. Stat. 1991, ch. 38, par. 12-1(a).) Defendant was sentenced on the DUI to 24 months' probation and ordered to pay a $750 fine, perform 75 hours of public service work, attend a victim-impact panel, complete an alcohol evaluation, and complete any recommended treatment.

On review, the issues raised are (1) whether the trial court should have granted defendant a mistrial because of the State's failure to produce medical records in compliance with an agreement for voluntary disclosure, and (2) whether the trial court erred by admitting into evidence serum-alcohol test results. We affirm.

On August 25, 1992, the circuit court entered an order setting trial for September 14, 1992. That order also required that all discovery be completed at least seven days before the final pretrial conference, scheduled for September 8, 1992. After a continuance, a similar order was entered on December 22, 1992, setting January 19, 1993, as the trial date and January 5, 1993, as the final pretrial conference.

At trial, Dr. Richard Miller, who treated defendant at St. Francis Medical Center on May 28, 1992, testified for the State. During defense counsel's cross-examination, Miller was asked about any information he had regarding defendant's imbibing alcoholic beverages in relation to his injury at the time he was driving. Miller referred to a nursing record, which had not been submitted as an exhibit, and read from it as follows:

"This is a 51-year-old white male presented to St. Francis emergency room per ambulance after an altercation. Patient states has been drinking since 1600--that is 4:00 p.m.--beer. Was tailgating a car when the car stopped and driver confronted him, hit him times one in the head."

Miller added that this was a nursing record which was part of the medical records which were routinely consulted in evaluating a patient. At the time, defendant did not object to the testimony or move to strike it.

During further cross-examination, Miller was asked about signs of alcohol imbibing, and he again referred to the nursing record. At that point, defense counsel stated the defense did not have nursing records from the hospital and asked that the testimony about them be stricken. The trial court did not make a ruling, but informed the jurors that the rules of discovery in felony cases are not available in a misdemeanor case such as this. Because the trial Judge did not know what had been previously requested, he directed the parties to proceed with the trial.

After Miller finished testifying, the defense counsel made a morespecific objection outside the presence of the jury. Defense counsel stated he was provided medical records which were provided to the State as a result of agrand jury subpoena of hospital records. The subpoena referred to all medical records. Defense counsel assumed the nursing records were not provided to the State, and objected to Miller referring to those notes, because the content and the identity of the author had not previously been disclosed. The State argued that Miller was merely refreshing his recollection and there was no need to provide in discovery documents which a witness would use to refresh his recollection. However, defense counsel pointed out that Miller read from the nursing record and was not refreshing his recollection. No ruling was made by the trial court at that time.

Prior to the resumption of trial the next day, defendant presented a written motion for mistrial based on Miller having testified about the undisclosed nursing record. It was still defense counsel's understanding that the nursing record had not been provided to the State pursuant to the subpoena. In argument, defense counsel also noted that there had been a pretrial suppression hearing relating to admissions and statements allegedly made by defendant and that there was a continuing objection to the introduction of such evidence. Defense counsel stated he had not envisioned "some nurse" taking a statement from defendant. Defense counsel further noted that, although the supreme court rules regarding discovery in criminal cases do not apply to misdemeanor trials (134 Ill. 2d Rules 411 through 415), a motion for discovery was filed and the State complied by voluntarily exchanging information with the defense.

The State acknowledged that the document had been produced pursuant to the subpoena on December 9, 1992. Nevertheless, the State argued that mistrial was too severe a remedy, defendant was not prejudiced in light of other testimony, and Miller's reference to the notes came in response to ...

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