Business Litigation I JUNE 2, 2015

Court Addresses 911 Call and DNA Evidence

Bradley Schlott faced charges for one count of attempted first degree murder and one count of aggravated domestic battery. The indictment alleged Schlott struck or slashed Kimberly Hurschik about the neck with a knife on that date. The case took nearly four years to go to trial. The prosecution neglected to test the knife for DNA evidence until a few weeks before trial.
The trial court granted Schlott’s pretrial motion in limine seeking to exclude portions of Schlott’s responses to questions posed by a 911 operator. In addition, the court granted Schlott’s request to exclude the State’s DNA evidence, which the State submitted for analysis by the crime lab years after the crime, but within weeks before the scheduled jury trial, and promptly disclosed to the defense as ongoing discovery.
A hearing on the motion in limine concerning Schlott’s 911 calls took place on September 10, 2013, in anticipation of the scheduled jury trial date of September 19, 2013.
The court ordered that the jury would not be allowed to consider certain portions of the 911 recording, reasoning that the 911 operator’s questions went beyond the emergency purpose:
DISPATCH: It is important, Sir! We’re going to be sending police and fire out there. You need to tell me what happened.
(Male) CALLER: We had a fight.
DISPATCH: Okay, and what happened that she’s cut between her arm and her chest now?
(Male) CALLER: She got cut.
DISPATCH: Did you cut her?
(Male) CALLER: I need help!
DISPATCH: What’s your name?
(Male) CALLER: (Hangs up — dial tone heard)” (Emphasis added.)
The State filed a motion requesting the trial court to reconsider the ruling regarding the 911 call. On that same day, Schlott filed a motion to bar the State from introducing evidence concerning the DNA results from the knife as a discovery sanction. The defense asserted that production of discovery 10 days prior to the start of trial was unreasonable and constituted a discovery violation.
The court granted Schlott’s motion for a discovery sanction and barred the State from introducing the DNA test results into evidence. In addition, on the same date, the court denied the State’s request to reconsider the court’s ruling striking Schlott’s responses to the 911 operator.
The Court of Appeals reversed both evidentiary rulings on an appeal filed by the State. The record lacked a formal order dictating deadlines for the initial production of discovery or the ongoing production of additional material and information gathered by the parties during the years the matter was pending trial.
Illinois Supreme Court Rule 415(b) provides; “If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, he shall promptly notify the other party or his counsel of the existence of such additional material ***.”
As noted, on August 30, 2013, Schlott filed his motion in limine seeking to exclude portions of the 911 tape. On that date, the prosecutor assigned to the case discovered that a previously assigned prosecutor had not made sure the knife was submitted to the crime lab for DNA analysis. On September 3 or 4, a prosecutor personally advised defense counsel that further discovery would be forthcoming and provided defense counsel with the name of the crime lab technician conducting the expedited lab analysis on the knife. On September 5 or 6, the State tendered the completed crime lab report to the defense.
The Court of Appeals concluded the State’s ongoing disclosure of additional newly discovered information was timely and did not constitute a discovery violation of Rule 415. Therefore, the trial court abused its discretion by excluding the test results.
Case law provides that the sanction of excluding certain testimony or evidence is disfavored because it does not contribute to the goal of truth-seeking and is appropriate in only the most extreme situations. In his motion, Schlott did not claim unfair prejudice or claim that undue prejudice could only be remedied by exclusion.
The State also contended the trial court improperly allowed Schlott’s motion in limine based on Crawford v. Washington, 541 U.S. 36 (2004).
In Crawford, the Supreme Court held that out-of-court statements of a testimonial nature are barred under the confrontation clause unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. While the Crawford court discussed the differences between testimonial hearsay and nontestimonial hearsay, it was at all times concerned with hearsay.
According to the appeals court, however, admissible nonhearsay does not implicate the confrontation clause.
Under the Illinois Rules of Evidence, a statement is not hearsay if “[t]he statement is offered against a party and is *** the party’s own statement, in either an individual or a representative capacity.” 111. R. Evid. 801(d)(l)(B)(2).
The statements made by Schlott and recorded on the 911 tape were admissions, and thus were plainly nonhearsay under Illinois law. As such, Schlott’s statements did not implicate the confrontation clause or Crawford. The trial court’s ruling that the portions of the 911 tape in question should be redacted pursuant to Crawford was error.