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12/12/97 N.W. v. N.W.

December 12, 1997



Released for Publication January 22, 1998.

The Honorable Justice Zwick delivered the opinion of the court.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

On August 31, 1995, respondent N.W. (then 13 years old) was adjudicated delinquent for having committed aggravated criminal sexual assault against a nine-year-old boy. Respondent was placed on probation for two years with the condition that he reside in a secure juvenile facility. On August 14, 1996, a petition for violation of probation by respondent was filed, based upon two incidents of fighting at his Wisconsin residential treatment facility. Following a hearing, respondent was found in violation of probation and committed to the Illinois Department of Corrections. On appeal, respondent contends that the trial court erred in allowing the State to introduce into evidence incident reports from the facility under the "business records" exception to the hearsay rule. He argues that no foundation was laid for these reports, and that the reports would have been inadmissible because they were prepared in anticipation of litigation or discipline and therefore did not qualify under the business records exception. He also argues that the judgment must be reversed because the reports constituted the only evidence that he violated probation.

The petition for violation of probation alleged that on July 14, 1996, respondent struck another facility resident in the face with his fist, knocking off the resident's glasses and cutting the resident's nose. The petition also alleged that on August 5, 1996, respondent initiated a fight with another facility resident.

Prior to the start of the hearing, the State represented that it would be proceeding with the introduction of the facility's documents under the business records exception to the hearsay rule. Respondent's counsel objected, stating that the source of these statements was not identified. He also contended that the relationship of the persons making the reports describing the incidents to the source of the statements was not indicated. The trial court overruled the objection and concluded that it had been "the court's practice basically over the last 11 years that the reports from probation officers are business records received in the ordinary course of their duty."

Cook County probation officer Mark Dean-Myrda testified that he was the supervising probation officer in charge of respondent. He stated that because respondent's original probation officer was no longer in the office and respondent was in placement, it was routine practice for a supervisor to oversee his case. During the course of this supervision, he received numerous reports from the facility detailing respondent's progress, and he spoke with various members of the facility's staff regarding respondent's progress. The written reports included routine treatment and progress reports, as well as unusual incident reports which detail a major rule violation.

In early August 1996, Dean-Myrda received by mail in the normal course of business, an "unusual incident report" pertaining to respondent (State's Exhibit No. 1) from Phyllis Nettlesheim at the facility. This three-page report, dated July 14, 1996, was authored by Jean Nicholas Glaser. The report detailed a fight involving respondent. Dean-Myrna was familiar with Phyllis Nettlesheim, the current primary therapist for R.W., as well as his previous primary care therapist. When respondent's counsel objected that no foundation had been laid for the admission of the record, the trial court held:

"I believe that the recipient of a record in the normal course of business who maintains that in the normal course of business provides to serve a foundation to enter that record. I think the fact that the probation officer has testified that that's part of his job to receive these reports and maintains them when he has on his caseload a minor who is on probation. And that he has familiarity with the facility himself and at least a couple of their staff. This comes in as an exception to the hearsay rule because with business records there is a belief to be sufficient of right.

I do not believe that there is much doubt that this is a record that came from [the facility]. I don't believe it's forged. And based on that, I am going to admit it. The weight that I give it is a different matter, but I do think it's admissible and I will admit it."

The assistant State's Attorney then offered a second incident report (State's Exhibit No. 2) from the facility concerning respondent. The August 5, 1996, report was prepared by staff member Brian Binder. This report was received by Dean-Myrna in the same manner as the previous report. Over the same defense objection, the report was admitted into evidence.

The State also introduced a physical intervention report (State's Exhibit No. 3) dated August 6, 1996 received from Bradley R. Block, a case worker at the facility. Dean-Myrna received this report in a similar manner in which he received the other reports. Again, over defense objection, the report was admitted into evidence. None of these exhibits are included in the record on appeal.

On cross-examination, Dean-Myrda stated that none of the documents from the facility were prepared by anyone in the probation department who had personal knowledge or actually saw the events reflected in these reports. Dean-Myrda admitted that he did not have personal knowledge of who wrote these reports or of the events contained in the reports. Additionally, ...

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