RETAIL THEFT/BUSINESS RECORDS, ILLINOIS

RETAIL THEFT/BUSINESS RECORDS

People v. Davis No. 1-99-4385 (May 21, 2001) 1st Dist. 1st div. (MCNULTY)
Reversed and remanded. 2001 Ill. App. LEXIS 377.

State failed to lay proper foundation for admission of document as
business record that was printed at victim's store on morning of trial
to show value of rings allegedly stolen by defendant. Therefore,
conviction must be reversed. However, since court must consider
sufficiency of all evidence introduced at trial for purposes of double
jeopardy analyses, including that which is inadmissible, defendant may
be retried.

Section 115-5 of the Code of Criminal Procedure (725 ILCS 1-99-4385
5/115-5 (West 1998) governs admissibility of business records into
evidence at criminal trials. That section provides:

"Any writing or record *** made as a memorandum or record of any act,
transaction, occurrence, or event, shall be admissible as evidence of
such act, transaction, occurrence, or event, if made in regular course
of any business, and if it was the regular course of such business to
make such memorandum or record at the time of such act, transaction,
occurrence, or event or within a reasonable time thereafter.
All other circumstances of the making of such writing or record,
including lack of personal knowledge by the entrant or maker, may be
shown to affect its weight, but such circumstances shall not affect its
admissibility." 725 ILCS 5/115-5 (a) (West 1998).

Documents prepared in anticipation of litigation are not admissible as
business records. 725 ILCS 5/115-5(c) (2) (West 1998); In re N.W., 293
Ill. App. 3d 794, 799-800, 688 N.E.2d 855, 228 Ill. Dec. 157 (1997).
But, the retrieval of records in anticipation of litigation does not
disqualify the records as business records. People v. Houston, 288 Ill.
App. 3d 90, 98, 679 N.E.2d 1244, 223 Ill. Dec. 471 (1997). The requisite
foundation pertains to the time when the business made the record, not
when the business retrieved it.