People v. Connolly ( 2011 )

No. 3--08--1027
Opinion filed January 4, 2011
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2011
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 07--CM--2425
)
PHILLIP CONNOLLY, ) Honorable
) Bennett J. Braun,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE CARTER delivered the judgment of the court, with
opinion.
Justice Lytton concurred in the judgment and opinion.
Justice Wright dissented, with opinion.
_________________________________________________________________
OPINION
After a jury trial, the defendant, Phillip Connolly, was
convicted of domestic battery (720 ILCS 5/12--3.2(a)(2) (West
2006)) and endangering the life or health of a child (720 ILCS
5/12--21.6(a) (West 2006)). The trial court sentenced the
defendant to 364 days' imprisonment. The defendant appealed,
contending that his domestic battery conviction must be reversed
and his endangering the life or health of a child conviction must
be vacated because the trial court improperly admitted a hearsay
statement of Melissa Connolly. We affirm.
FACTS
The charges against the defendant arose from an argument
between the defendant and his wife, Melissa, outside their home.
The couple's neighbor, Dina Perritano, testified that she was
sleeping on her couch after working all night when her son woke
her up because the defendant and Melissa were arguing outside.
Perritano went outside, and observed Melissa seated in the
driver's seat of her vehicle and the defendant standing in the
open doorway of the vehicle, holding their son on his hip.
Perritano testified that the defendant and Melissa were screaming
and yelling at each other, and Melissa threatened to call the
police. Perritano returned to her home and telephoned the
police. When she turned back toward the argument, the child was
sitting in the middle of the two-lane street and the defendant
was leaning over Melissa while screaming at her. Perritano
estimated that the child was in the middle of the street for a
few minutes. Perritano saw a car coming slowly down the street,
but it came to a stop and the defendant picked up the child and
left. Melissa remained in her vehicle until the police arrived.
Perritano estimated that the police arrived a few minutes after
the defendant left with the child. When the police officer
arrived that day, he spoke separately to Melissa and then spoke
to Perritano.
Jon Muehlbauer, a deputy with the Will County sheriff's
department, testified he arrived at the scene within five to
seven minutes after he was dispatched. He first spoke to
Melissa, who appeared upset, agitated, and nervous upon his
arrival. The defense objected to allowing Muehlbauer to testify
2
as to what Melissa told him, but the trial court overruled the
objection, finding an adequate foundation, and allowed Melissa's
statements to be admitted under the excited utterance exception
to hearsay. Muehlbauer went on to testify that Melissa told him
that the defendant pulled her out of her vehicle and battered her
about the head. Melissa also told Muehlbauer that the defendant
put the child down in the middle of the street. The deputy did
not recall seeing injuries on Melissa. He then spoke to
Perritano and the driver of the car that stopped. Muehlbauer
attempted to locate the defendant, but could not find him.
Muehlbauer located the child in a residence down the street and
returned the child to his mother, Melissa. The State rested, and
the defendant's motion for a directed verdict was denied.
Melissa testified for the defense. She stated that, at the
time of the incident, their child was 19 months old. Melissa
testified that she had an argument with the defendant, but that
he did not strike her and he never set the child down. She
testified that she was calm when she spoke to Muehlbauer about 10
minutes after the argument.
The defendant also testified. He denied putting the child
in the street. He testified that he had an argument with
Melissa, but he could not recall what it was about. He heard
Perritano say that she was calling the police, but he did not run
away with the child. According to the defendant, he was taking
the child for a walk in his stroller.
3
The jury found the defendant guilty of both offenses, and
the defendant's motion for a new trial was denied. At
sentencing, the trial court noted that the defendant and Melissa
were "two of the least believable witnesses [he] ever heard" in
the two decades he had been licensed to practice law and
sentenced the defendant to 364 days' imprisonment.
ANALYSIS
The defendant contends that the trial court abused its
discretion by admitting Melissa's statements to the officer under
the excited utterance exception to the hearsay rule. The
defendant also contends that the admission of Melissa's
statements violated the confrontation clause of the United States
Constitution (U.S. Const., amend VI). The defendant argues that
if Melissa's out-of-court statements were improperly admitted by
the court as an exception to the hearsay rule, double jeopardy
bars his retrial for domestic battery.
The State contends the trial court properly admitted
Melissa’s responses to the officer's questions as an excited
utterance. Alternatively, the State submits that even if an
error occurred there is no double jeopardy bar to a retrial on
these charges.
We begin by considering the defendant's argument that
Melissa's statements constituted inadmissible hearsay. Out-of-
court statements offered to prove the truth of the matter
asserted are inadmissible hearsay and considered to lack
4
reliability unless an exception applies. People v. Tenney, 205
Ill. 2d 411 (2002).
The State offered Melissa's out-of-court statements to the
jury for the truth of the matters asserted, so her statements
were hearsay unless an exception applied. The trial court found
that the excited utterance, or spontaneous declaration, exception
applied, and it admitted the statements.
Our supreme court has explained that the excited utterance
exception to the hearsay rule was based on human experience.
That is, where people are under physical or mental shock, they
experience a stress of nervous excitement which produces a
statement that expresses the real belief of the speaker as to the
facts just observed. People v. Damen, 28 Ill. 2d 464 (1963).1
It is not unusual for the State to attempt to utilize the excited
utterance exception when appropriate. See, e.g., People v.
Gwinn, 366 Ill. App. 3d 501 (2006); People v. Robinson, 379 Ill.
App. 3d 679 (2008), appeal allowed, 228 Ill. 2d 548 (2008).
1
This excited utterance exception has a long history in the
common law of evidence. See Thompson v. Trevanion, (1693) Skin.
402, 90 Eng. Rep. 179 (K.B.) (in an action for trespass of the
wife of the plaintiff, Chief Justice Holt found that what the
wife said immediately upon the hurt received, and before there
was time to contrive anything, might be given in evidence); see
generally 6 J. Wigmore, Evidence §§1747-50 (Chadbourn rev. ed.
1976).
5
Given the studied psychological dynamics of domestic violence
(see generally M. Dutton, Understanding Women's Responses to
Domestic Violence: A Redefinition of Battered Woman Syndrome, 21
Hofstra L. Rev. 1191 (1993)), efforts by the State to rely on the
hearsay exception might arise from the recognition that domestic
violence is a type of crime that is very susceptible to
intimidation of the victim to ensure the victim does not testify
against the abuser. See People v. Dabbs, No. 109698 (Nov. 18,
2010) (discussing the legitimate concern of the General Assembly
with the effective prosecution of crimes of domestic violence).
For the excited utterance exception to the hearsay rule to
apply, "there must be an occurrence sufficiently startling to
produce a spontaneous and unreflecting statement, there must be
an absence of time for the declarant to fabricate the statement,
and the statement must relate to the circumstances of the
occurrence." People v. Sutton, 233 Ill. 2d 89, 107 (2009).
Courts look at the totality of the circumstances to determine
whether a statement is admissible under the excited utterance
exception. People v. Williams, 193 Ill. 2d 306 (2000). An event
can be sufficiently startling, even in the absence of physical
injury, based on the totality of the circumstances. Robinson,
379 Ill. App. 3d 679.
While the amount of time necessary for fabrication may vary
greatly, the critical inquiry with regard to time is whether the
statement was made while the declarant was still affected by the
excitement of the event. Sutton, 233 Ill. 2d 89. The time
6
factor is not viewed in isolation, but in the context of the
event. For example, a 15 to 20 minute delay between an incident
of home invasion and aggravated domestic battery and the victim's
statement to the police concerning the events does not destroy
spontaneity under given circumstances. Gwinn, 366 Ill. App. 3d
501 (victim was crying, trembling, and visibly shaken, as well as
injured, when she made the statement to officers).
The fact that a statement is made in response to an inquiry
does not destroy spontaneity. People v. Lisle, 376 Ill. App. 3d
67 (2007), appeal denied, 226 Ill. 2d 598 (2007). In Damen, 28
Ill. 2d at 470, a forcible rape case, our supreme court noted the
fact an officer asked the complainant "what happened" was
insufficient to destroy its spontaneity. See also Williams, 193
Ill. 2d 306. In another case, when the statements are made in
respect to a police officer's questions more than 20 minutes
after the crime had occurred, the victim's statement was still
considered a spontaneous declaration. Sutton, 233 Ill. 2d 89
(victim's statement made while excitement of the event
predominated). An excited utterance can still be made even after
having spoken previously to another after the event. See People
v. House, 141 Ill. 2d 323 (1990) (rejecting the argument that a
declarant cannot make a spontaneous declaration to a person after
having spoken previously to another).
The trial court in the instant case determined that
Melissa's statements were admissible as excited utterances, so
our review is limited to whether that determination was an abuse
7
of discretion. People v. Cookson, 215 Ill. 2d 194 (2005).
Evidentiary rulings are within the sound discretion of the trial
court, and we review those rulings with deference to the trial
court. People v. Caffey, 205 Ill. 2d 52 (2001). This court will
find an abuse of discretion only where the trial court's ruling
is arbitrary, fanciful, unreasonable, or where no reasonable
person could take the view adopted by the trial court. Caffey,
205 Ill. 2d 52. Inasmuch as the application of the excited
utterance exception always depends on the circumstances of the
particular case, it has been suggested that the trial court
should be clothed with a reasonable degree of latitude. Peterson
v. Cochran & McCluer Co., 308 Ill. App. 348 (1941); see 6 J.
Wigmore, Evidence §1750 (Chadbourn rev. ed. 1976).
In this case, the totality of the circumstances support the
trial court's finding that Melissa's statements were excited
utterances. Domestic violence is an intolerable offense
sufficiently startling to render inoperative the normal
reflective thought processes of the victim. Her statements were
made within a relatively short time span following the occurrence
that allowed the emotional upset to continue. There does not
appear to have been any time for reflection by Melissa prior to
her statements to the police officer. Muehlbauer arrived on the
scene within minutes of the argument between Melissa and the
defendant. Melissa was still at the scene in a nervous, upset,
and agitated condition, directly related to the event. Her child
was absent. The defendant was no longer at the scene, and he had
8
taken the child. Muehlbauer left Melissa at the scene to look
for the defendant and the child. We find no abuse of discretion
in the conclusion that Melissa's responses to police questioning
on the scene were excited utterances and were admissible.
Having determined that Melissa's statements to Muehlbauer
were admissible as exceptions to hearsay, we must address the
constitutional issue based on the confrontation clause. Melissa
did not testify for the State, so she was not subject to cross-
examination for purposes of the sixth amendment confrontation
clause. See Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S.
Ct. 2527 (2009) (confrontation clause imposes a burden on the
prosecution, not the defendant, to produce witnesses against the
defendant).
The confrontation clause provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right *** to be
confronted with the witnesses against him[.]" U.S. Const.,
amends. VI, XIV. A testimonial out-of-court statement by a
witness who does not testify at trial is not admissible unless
the witness is unavailable to testify and the defendant had a
prior opportunity for cross-examination. Crawford v. Washington,
541 U.S. 36 (2004); People v. Stechly, 225 Ill. 2d 246 (2007).
The confrontation clause does not apply, however, if the
statements are not testimonial. Stechly, 225 Ill. 2d 246.
The trial court found that Melissa's statements were not
testimonial and, thus, did not violate the confrontation clause
with their admission into evidence. A sixth amendment
9
confrontation clause violation claim is a question of law that we
review de novo. People v. Williams, 238 Ill. 2d 125 (2010);
People v. Lovejoy, 235 Ill. 2d 97 (2009).
A statement is testimonial if it is made in a solemn fashion
and is intended to establish a particular fact. Stechly, 225
Ill. 2d 246. However, just because a statement was made to a
police officer, standing alone, does not mean the statement is
prohibited. A statement made to a law enforcement official is
not testimonial when the circumstances objectively indicate that
the primary purpose of any questioning was to address an ongoing
emergency. Sutton, 233 Ill. 2d 89. The Davis court applied four
factors when deciding whether interrogation was to meet an
ongoing emergency: whether the purpose was to determine a past
fact or ascertain an ongoing event; whether the situation could
be described as an emergency; whether the nature of the questions
focused on the present or on the past; and finally, the level of
formality involved. Davis v. Washington, 547 U.S. 813 (2006).
In such circumstances, the objective intent of the questioner,
not the questioner's status, becomes the determinative question.
In re Rolandis G., 232 Ill. 2d 13 (2008).
Muehlbauer testified that when he arrived at the scene,
Melissa was still at the scene and she appeared upset, nervous,
and agitated. He first talked to Melissa. She told him that the
defendant had pulled her out of her vehicle and battered her
about the head, and that the defendant had set the child in the
middle of the street. The defendant had also taken the child.
10
After questioning the two other witnesses at the scene, assessing
the ongoing situation, Muehlbauer proceeded to try to locate the
defendant and the child. In fact, he eventually located the
child and then returned the child to his mother, Melissa. We
conclude that Melissa's statements to Muehlbauer were
nontestimonial because Muehlbauer was addressing an ongoing
emergency. As such, the confrontation clause did not bar the
admission of Melissa's statements. Having found Melissa's
statements were an exception to the hearsay rule that did not
violate the confrontation clause, we need not address the double
jeopardy argument.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Will County is affirmed.
Affirmed.
JUSTICE WRIGHT, dissenting:
In this case, the couple’s neighbor, Dina Perritano,
testified that she observed defendant and Melissa screaming and
yelling at each other outside their residence while Melissa was seated
in the driver’s seat of her vehicle. Perritano observed defendant was standing in the open
doorway of the vehicle, holding their son on his hip. During this verbal argument, Perritano heard
Melissa threaten to call the police. Perritano did not observe any physical contact between the
couple but called the police on her own initiative. Perritano estimated that the police arrived a
few minutes later after defendant left with his son.
11
Jon Muehlbauer, a deputy with the Will County sheriff's department, testified he arrived at
the scene within five to seven minutes after he was dispatched to that location. He spoke to
Melissa who told him that defendant pulled her out of her vehicle and battered her about the head.
The officer described her to be upset and nervous.
For the excited utterance exception to the hearsay rule to apply, "there must be an
occurrence sufficiently startling to produce a spontaneous and unreflecting statement, there must
be an absence of time for the declarant to fabricate the statement, and the statement must relate to
the circumstances of the occurrence." People v. Sutton, 233 Ill. 2d 89, 107 (2009). In this case, I
conclude that the events witnessed by the neighbor do not indicate that there was a sufficiently
startling event or the required spontaneity to trigger this narrow and inflexible exception to the
hearsay rule.
Generally, many people who speak to investigating officers are both upset and nervous.
The excited utterance requires something more, that is, a sufficiently startling event to trigger a
spontaneous declaration. Mere nervousness and anxiety is not enough.
Here, the neighbor’s testimony established that heated verbal altercations were not
unusual for this couple and that the police officer arrived on the scene between 5 and 10 minutes
after the couple separated. This time period would allow sufficient time for Melissa’s personal
reflection, thereby negating the spontaneity of her responses to the officer's questions. Based on
the circumstances of this case, it is unclear whether Melissa was upset because her child had been
removed from the area by his father or upset by the purported altercation.
In my view, the foundation for an excited utterance exception should not vary due to the
domestic nature of the underlying offense or based on the reality that the State cannot prove their
12
case without the statement. In this case, the State’s evidence neither satisfied the requirement that
the occurrence in this case was startling for this declarant and also failed to establish there was not
an opportunity for the declarant’s reflection. Thus, I have reached the conclusion that Melissa's
out-of-court statement to Muehlbauer constituted inadmissible hearsay and requires reversal of
defendant’s conviction.
Next, based on my position as set forth above, I reject defendant’s contention that a
retrial for domestic battery is barred based upon double jeopardy considerations. Double
jeopardy does not prevent a retrial, when a conviction is overturned due to an error in the trial.
People v. Lopez, 229 Ill. 2d 322, 367 (2008). When deciding if the evidence was sufficient to
sustain a conviction, for double jeopardy purposes, this court may consider all of the evidence
admitted at trial, even the erroneously admitted evidence. If viewing all the evidence in the light
most favorable to the State, a rational trier of fact could have found all of the elements of the
crime beyond a reasonable doubt, there is no double jeopardy bar to retrial. People v. Lopez, 229
Ill. 2d at 367.
In this case, Melissa told the police officer that defendant had pulled her out of the car and
battered her about the head. Moreover, upon remand, Melissa could change her mind and elect to
testify for the State in a fashion that is consistent with her out-of-court statements to the officer.
Viewing all of the evidence, including the improperly admitted evidence, I conclude that a
reasonable trier of fact could have found defendant guilty of domestic battery.
As for defendant's conviction of endangering the life or health of a child, the State
contends that retrial is not warranted because any error was harmless. Although there was
sufficient evidence to sustain the conviction, the impact of the erroneous admission of Melissa's
13
statements to the officer cannot be considered harmless in this case. See People v. Stechly, 225
Ill. 2d 246 (2007).
Consequently, I would find the trial court abused its discretion by admitting the out-of-
court statement as a spontaneous utterance, vacate both convictions, and remand the cause for a
new trial on both charges.
For the foregoing reasons, I respectfully dissent.
14