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People v. Powell

December 04, 1998


Appeal from Circuit Court of Piatt County No. 97CM150

The opinion of the court was delivered by: Steigmann, Justice


Honorable John P. Shonkwiler, Judge Presiding.

In January 1998, a jury convicted defendant, Terry D. Powell, of two counts of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 1996)), and the trial court later sentenced him to probation subject to various conditions, including that he serve 120 days in jail. Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the court made certain evidentiary rulings that deprived him of a fair trial, including admitting testimony that defendant refused to answer questions he was asked by a deputy sheriff; and (3) the court abused its discretion by imposing an improper condition of probation. We agree that the court erred by admitting evidence of defendant's refusal to answer the deputy, and accordingly we reverse and remand for a new trial.


Because we are reversing and remanding for a new trial, we discuss the evidence presented at defendant's trial only to the extent necessary to put the trial court's evidentiary ruling at issue in context.

The events at issue occurred on the evening of November 11, 1997, at defendant's residence, where he lived with his wife, Sandra, and their 13-year-old daughter, Vanessa. As defendant and Sandra prepared dinner, they started to argue. Their argument became heated, and defendant either intentionally or inadvertently spit on Sandra and then grabbed her by the neck and choked her. Vanessa, who had been using a cordless telephone in another room, heard the argument and came into the kitchen, still carrying the telephone. Vanessa become upset upon seeing defendant choke Sandra, and she started hitting defendant with the telephone. Defendant then threw or pushed Vanessa down, and she became more upset and ran out of the house. When defendant realized Vanessa had fled the residence with the cordless phone, he pulled the phone stand off the wall. Vanessa ran to a nearby residence occupied by her older sister and her sister's roommate, Roberta Morris. When Vanessa arrived, Morris noticed that Vanessa was shaking and had tears on her cheeks, so Morris comforted her. Vanessa also had no shoes on and her socks were muddy and wet. Morris called the police, and two deputy sheriffs arrived a few minutes later at defendant's residence.

Meanwhile, Sandra had left that residence to drive around looking for Vanessa. Sandra searched unsuccessfully for Vanessa for 15 to 20 minutes and then returned to the residence. The deputies were already there and had been for several minutes. They had been knocking on the door, but defendant, who was inside, had not responded. Sandra let the deputies in the residence, and they asked to speak to defendant. They went to defendant's bedroom, where he was in bed. Sandra originally told the officers that she and defendant had been arguing but nothing had happened. When the officers first spoke with defendant in the bedroom, they asked him what had happened, and he also responded that nothing had happened. After speaking with defendant, one of the deputies left to speak with Vanessa, who was still at Morgan's residence. Vanessa provided a different version of events, which the deputy related to Sandra upon his return to her residence. Sandra then admitted that defendant had spit on her and choked her. Deputy Todd McCabe's testimony provided much of the previous information. At this point in his direct examination, the prosecutor questioned McCabe about what happened next, and he testified as follows:

Q. "After you spoke with Sandra the second time, Deputy McCabe, you then went back and spoke with the defendant ***?" A. "Yes I did." Q. "Did you ask him if Sandra hit him?" A. "Yes I did." Q. "And what was his response?" A. "He said she did not." Q. "Did you ask him if he grabbed his wife and daughter around the neck?" A. "Yes I asked him that." Q. "And that was your next question?" A. "Yes." Q. "What was his response?" A. "He wouldn't answer."

Immediately prior to the above testimony, defense counsel objected when the prosecutor asked McCabe if he spoke with defendant after speaking for a second time with Sandra. Out of the presence of the jury, defense counsel argued that eliciting testimony from McCabe that defendant refused to answer his questions was tantamount to telling the jury that defendant exercised his right to remain silent and was thus inappropriate. The State responded that because McCabe's questioning of defendant did not constitute a custodial interrogation, but was merely a preliminary examination at the scene, constitutional ramifications did not arise. The trial court overruled defense counsel's objection and stated that it agreed with the State's analysis.

On this evidence, the jury convicted defendant of two counts of domestic battery, and this appeal followed.


Defendant argues that the trial court erred by permitting the State to question McCabe about defendant's refusal to answer McCabe's questions. Defendant points out that when this occurred, defendant had not yet testified; therefore, nothing about defendant's refusal to answer questions was then admissible to discredit any exculpatory testimony defendant had given. Defendant contends that McCabe's testimony about defendant's ...

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