Defendant’s conviction for felony domestic battery was upheld over his contentions that he did not knowingly and voluntarily waive a bench trial and that his rights under the confrontation clause were violated by the admission of his wife’s testimony that her son told her that defendant had pushed him, since the right to a bench trial is one defendant must assert, and the son’s hearsay statement was not testimonial, but was intended to meet an ongoing emergency arising from defendant’s conduct.
Appeal from the Circuit Court of Winnebago County, No. 10-CF-2984; the Hon. Gary V. Pumilia, Judge, presiding.
James K. Leven, of Chicago, for appellant.
Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Victoria E. Jozef, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Justices Jorgensen and Birkett concurred in the judgment and opinion.
¶ 1 I. INTRODUCTION
¶ 2 Defendant, James J. Brown, was convicted of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2010)), a felony in this case. He now appeals, raising two issues. First, he contends that the record does not disclose that he knowingly, voluntarily, and intelligently waived his right to a bench trial. Second, he alleges a violation of the confrontation clause (U.S. Const., amend. VI) in accordance with Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. We find neither argument well taken and affirm.
¶ 3 II. BACKGROUND
¶ 4 The State obtained a three-count indictment against defendant, charging him with felony domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2010)). Count I alleged that he committed domestic battery by striking Kathy Brown (his wife). Count II alleged that he committed the offense by throwing milk in the face of Caden (Kathy's five-year-old son). Count III alleged that defendant committed the offense by pushing over a chair in which Caden was sitting. Each count alleged that defendant had previously been convicted of domestic battery in an unrelated case.
¶ 5 Prior to the trial, the State brought a motion in limine seeking a ruling regarding the admissibility of testimony from Kathy that Caden told her that defendant had pushed him. The State argued that this statement was admissible as an excited utterance. Defendant responded that the statement was not an excited utterance and that, as testimonial hearsay, its admission would violate the dictates of Crawford, 514 U.S. 36. The trial court determined that the statement was not testimonial and was thus outside the scope of Crawford and allowed its admission as an excited utterance.
¶ 6 At trial, Sean Welsh, a Rockford police officer, first testified for the State. On August 22, 2010, Welsh was dispatched to 1712 Tenth Street, along with Officer Richard Dodd. Dodd approached the residence and spoke with Kathy. Caden was also present. After learning what had transpired, Dodd entered the residence to look for defendant. Defendant was not present. Welsh and Dodd searched the area and then drove around looking for defendant. They did not find him. Subsequently, they returned to 1712 Tenth Street. Welsh went to the back of the house, and Dodd went to the front. Dodd encountered defendant and spoke with him. Welsh noted that defendant's speech was slurred, his eyes were "glossy, " his gait was unsteady, and his breath smelled of alcohol. Defendant was arrested. During cross-examination, Welsh testified that he did not recall speaking to Kathy. He did, however, have contact with Caden. Welsh did not observe any injuries to Caden or anything unusual about him.
¶ 7 The State next called Kathy. She testified that, in August 2010, she and defendant were living at 1712 Tenth Street along with Kathy's two children–Caden and 20-year-old Corey. Kathy testified that, though defendant was not Caden's biological father, he had "been his father since he was born." On August 22, 2010, Kathy got up and made Caden breakfast. She "had him sitting in the dining room eating." She then went out on the porch ...