Appeal from the Circuit Court OF of the 12th Judicial Circuit, Will County, Illinois,HonorableBennett J. BraunJudge, Presiding.
JUSTICE CARTER delivered the judgment of the court, with opinion.
Justice Lytton concurred in the judgment and opinion. Justice Wright dissented, with 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.
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 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.
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.
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 ...