Appeal from Circuit Court of Adams County No. 98CF276 Honorable John C. Wooleyhan, Judge Presiding.
The opinion of the court was delivered by: Justice Garman
An Adams County jury convicted defendant Steven R. Speed of one count of domestic battery. 720 ILCS 5/12-3.2(a)(1) (West 1996). He appeals, arguing that (1) the trial court erred in admitting into evidence the hearsay statement of the victim, D.M., where she had no recollection of the details contained in the statement; and (2) he is entitled to a $5-per-day credit against his fines for each day he spent in custody for the domestic violence offense. We affirm and remand.
Defendant was accused of causing bodily harm to D.M. by punching her in the head with his fist. At the jury trial, held on February 1, 1999, D.M. testified that on June 21, 1998, she lived at the Quincy Hotel. She and defendant had an "off and on" relationship. They had broken up prior to June 21, 1998. D.M. stated that she thinks defendant was at her apartment on that date. However, because she was intoxicated at the time, she recalls nothing about that day, except what others have told her. D.M. testified that she gave a statement to the police. She admitted writing the statement but did not recall doing so. After the prosecutor showed D.M. her written statement, she verified that the statement was in her handwriting, with her signature at the bottom, and that this was the statement she gave to police on June 21, 1998. When D.M. began to read directly from the statement, defense counsel objected. The prosecutor explained that, if D.M. was unable to refresh her memory by looking at the statement, she was entitled to read it as her past recollection recorded. The trial court overruled the objection and D.M. read the statement to the jury.
In the statement, D.M. said that she and defendant had a relationship and that he moved out of her apartment six or seven months prior to June 21, 1998. Sometime during the two weeks prior to that date, some of D.M.'s jewelry had been taken. She went with a friend to defendant's house on the night of June 20, 1998, and confronted him. Defendant said he had taken the jewelry and sold it to a man in Missouri and that he would return it to D.M. at 3 the next afternoon. She agreed. Defendant appeared the next day at her apartment and said that he did not think he could get the jewelry back, because he had sold it. D.M. said she would call the police. Defendant called her some profane names and poured a beer over her head. He then struck her in the left side of her face and shoved her backward over the corner of the bed. D.M. fell to the floor. Defendant ran out of the room, down six flights of stairs, and out the front door of the hotel to his vehicle.
The prosecutor showed D.M. a photograph that she testified depicted the left side of her face, which was swollen.
On cross-examination, D.M. testified that she had been drinking for a couple of months prior to June 21, 1998. She did not recall meeting defendant that day, making the statement to police, or having her face photographed.
Rosemary Houstead testified that she was working at the hotel on June 21, 1998. She is familiar with both defendant and D.M., as they had lived together at the hotel at one time. On the date in question, D.M. lived at the hotel; Houstead was not certain whether defendant still lived there. On that day, Houstead saw defendant rapidly run down the front steps, out the door, and down the ramp. A minute or so later, D.M. came running down the same steps. She approached Houstead's desk in the hotel lobby. She was crying, shaking, and holding her face.
On cross-examination, Houstead testified that she saw defendant enter the building approximately 30 or 40 minutes prior to the time he ran out of the hotel. D.M. used the hotel's house telephone to call the police.
Quincy police officer Troy Ruppert testified that he responded to D.M.'s call from the hotel. When he arrived at the hotel around 3:17 p.m., he went upstairs and spoke to D.M. Inside the apartment, Ruppert found a beer can and wet spots on the carpet. He detected a strong odor of beer in the apartment. D.M. was upset, her hair was in disarray, her face was red, and the left side of it was swollen. Ruppert could tell that D.M. had been crying, as her eyes were red. She seemed somewhat afraid. Ruppert testified that, at approximately 3:30 p.m., he and D.M. went to the police station. He identified D.M.'s written statement as the one she gave him that day. Ruppert also identified a photograph he took of the left side of D.M.'s face.
Ruppert testified that he did not believe D.M. was intoxicated that day. He allowed D.M. to drive to the police station, and he followed her there. At the time Ruppert spoke to D.M., she had no difficulty recalling what happened or writing her statement. Ruppert believed she was "perfectly fine"; had he believed otherwise, he would not have allowed her to drive to the police station.
Defendant testified that on June 21, 1998, he went to D.M.'s apartment to pick up his clothes. They talked for a while in a friendly manner. Defendant asked for and received a beer. D.M. is an alcoholic and was intoxicated. Suddenly, she threatened defendant with calling the police. When she gets intoxicated, she threatens him with the police and has blackouts. Defendant became angry. He splashed beer on her and left the apartment. Defendant denied striking D.M. D.M. was angry because defendant had a new girlfriend. He and D.M. are back together now.
On cross-examination, defendant admitted that D.M. accused him of taking her jewelry and this was the reason she was angry and threatened to call police. Defendant denied taking the jewelry and insisted that the theft accusation did not anger him. He ran because he had committed a battery by splashing beer on D.M. Following jury instructions and closing arguments, the jury retired to deliberate. Less than 45 minutes later, it returned a verdict of guilty, on which the trial court entered judgment.
On March 16, 1999, the trial court sentenced defendant to 364 days in jail, ordered him to pay a $1,000 fine, and granted him 56 days' sentence credit for time served.
On appeal, defendant first argues that the trial court erred in admitting D.M.'s written hearsay statement into evidence. We note that the determination of the admissibility of evidence lies within the sound discretion of the trial court and that court's decision will not be disturbed absent an abuse of ...