Rehearing denied November 1, 2013
Defendant’s conviction for the aggravated battery of his roommate was upheld over his arguments that the evidence was insufficient to sustain his conviction and that a police officer’s negative response to the prosecutor’s question as to whether defendant made a statement that he was innocent and suggested that the victim was battered by someone else shifted the burden of proof to defendant, since a rational trier of fact could have found defendant guilty beyond a reasonable doubt and the prosecutor’s question did not imply that defendant had any obligation to present evidence in the trial.
Appeal from the Circuit Court of Macon County, No. 11-CF-1303; the Review Hon. Timothy J. Steadman, Judge, presiding.
Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield, and Alan D. Goldberg and Manuel S. Serritos, both of State Appellate Defender’s Office, of Chicago, for appellant.
Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, Robert J. Biderman, and Luke McNeill, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Presiding Justice Steigmann and Justice Turner concurred in the judgment and opinion.
¶ 1 A jury found defendant, George A. Appelt, guilty of aggravated battery (720 ILCS 5/12-3.05(d)(2) (West 2010) (added by Pub. Act 96-1551, art. 1, § 5 (eff. July 1, 2011))), and the trial court sentenced him to imprisonment for four years.
¶ 2 Defendant appeals for two reasons. First, he argues the evidence is insufficient to support his conviction. More specifically, he argues the State failed to prove he was the person who committed the aggravated battery of Teresa Jackson. He does not dispute that Jackson suffered an aggravated battery; he merely disputes that he was the one who battered her. Looking at the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could find, beyond a reasonable doubt, that defendant was the person who committed the aggravated battery.
¶ 3 Second, defendant argues the trial court abused its discretion by overruling his objection, and by denying his motion for a mistrial, on the ground that a question the prosecutor asked a police officer during direct examination shifted the burden of proof to the defense. The prosecutor asked the police officer whether, in a statement that defendant made in the squad car, he declared his own innocence and suggested that someone else had battered Jackson. (The police officer answered no.) Because this question did not imply that defendant had any obligation to present evidence in the trial itself, the question did not shift the burden of proof to the defense, and the court did not abuse its discretion by overruling the objection and denying the motion for a mistrial.
¶ 4 So, disagreeing with both of the arguments that defendant makes in this appeal, we affirm the trial court's judgment.
¶ 5 I. BACKGROUND
¶ 6 In the jury trial, which occurred in January 2012, the State called three witnesses: Teresa Jackson, Sharon Parker, and Brian Allison. The defense called one witness: Richard Lohse.
We summarize their testimony below.
¶ 7 A. Teresa Jackson
¶ 8 1. Direct Examination by the Prosecutor
¶ 9 Teresa Jackson testified through a sign language interpreter. She was 43 years old and had been deaf since the age of 10. She could hear if she wore a hearing aid, but she was not wearing one when she testified.
¶ 10 She had been dating defendant for approximately 10 1/2 years. She had lived with him off and on. On the day he was arrested, September 10, 2011, she was living with him in his residence, at 2473 East North Street, Decatur. At the time of trial, she lived elsewhere.
¶ 11 The morning of September 10, 2011, Jackson and defendant were together in his residence. The prosecutor asked Jackson:
"Q. And at some point in the morning, did a fight begin between the two of you?
A. No. Really, somehow there was no power." In other words, defendant's residence had no electricity the morning of September 10, 2011, and Jackson claimed it was too dark to see.
¶ 12 Between 5 and 6 a.m. (but she was unsure of the time, given that she had no watch and the electric clock was not working), she awakened when someone began beating her. In the darkness, she could not see who the assailant was. She had no idea whether it was a man or a woman who was pummeling her in the face and on the back.
¶ 13 The prosecutor asked Jackson:
"Q. Did George hit you at all that morning?
A. I don't know. I don't know who did it. I don't know if it was George or somebody else.
Q. So it could have been George hitting you?
A. I'm not sure. How am I going to know? I can't see."
(She meant she could not see with the electricity turned off. It does not appear from the record that she had any visual impairment.)
¶ 14 Around 11 a.m. or noon, after being beaten up, Jackson telephoned a next-door neighbor, Sharon Parker, and went over to her house. The prosecutor asked Jackson:
"Q. And why did it take you so long between when you originally were beat up until when you got to her house to have her call the police for you?
A. Well, really because I was wanting to know who did it, who did that to me.
Q. Did Sharon then call the police for you after you wrote to her what had happened?
Parker retained Jackson's handwritten note (according to Jackson).
¶ 15 Jackson testified that upon leaving Parker's house, she returned to defendant's residence, 2473 East North Street, "to check to make sure where [her] things were and make sure [her] things were okay."
¶ 16 A police officer eventually found Jackson and spoke with her. The prosecutor asked Jackson:
"Q. Do you recall a police officer writing questions to you and you writing answers?
Q. *** So you were asked–and I'm just asking for a yes-or-no answer–'What has happened today?'
Q. Did you answer, 'He be[a]t me up. No reason'?
Q. Did you answer–when he asked you with an object, did you answer, 'Fists'?
Q. Were you asked, 'How many times did he hit you?'
Q. Did you answer, 'Many'?
Q. Were you asked, 'When did this happen?'
Q. Did you answer, 'Today'?
Q. Were you asked, 'What time?'
Q. Did you answer: '5:00 a.m. and 10:00 a.m.'?
Q. Were you asked, 'What is his full name and date of birth?'
Q. Did you answer, 'George Alan Appelt. 11-02-1964'?
Q. Were you asked, 'Did he cause the bruises to your face and injury to your hand?'
Q. And did you answer, although not on paper, 'Yes'?
¶ 17 The prosecutor then showed Jackson some photographs, People's exhibits Nos. 1 through 4, which Jackson identified as photographs of the injuries she had sustained from the beatings. The photographs showed her with a black eye, from being struck in the face with a fist; a bleeding cut on the index finger of her left hand, from "trying to hold the person that was attacking [her]"; and a bruise and scratch on her back, from being held down.
¶ 18 2. Cross-Examination by Defense Counsel
¶ 19 On cross-examination, Jackson testified (in apparent contradiction with the preceding direct examination) that defendant did not stay at his residence, 2473 East North Street, the night of September 9, 2011, and that she did not see him at all on September 10, 2011, the day he was arrested.
¶ 20 She confirmed, on cross-examination, that "somebody came back twice" to beat her the morning of September 10, 2011, and that after 10 a.m., she went to Parker's house (although she could not be certain of the time, given that she "didn't have any power").
¶ 21 Defense counsel asked Jackson:
"Q. Did you go to [Powers's house] right away, or did you wait a while?
A. I waited a little bit, for a few minutes because I was very nervous and scared.
Q. You said something in your testimony earlier today about having called Sharon first. Did you call her on the phone first?
Q. Did you have a phone that worked?
A. I have no phone. I don't have a phone.
Q. Then how is it that you called Sharon before you went to her house?
A. I walked over to Sharon's house.
Q. All right. So you didn't call Sharon first?
A. No. I walked over to her house."
¶ 22 Defense counsel then asked Jackson whom she meant when she wrote, in her note to the police officer: " 'He beat me up. No reason' ":
"Q. Who's 'he'? 'He beat me up.' Who are you referring to?
A. I wrote it–really I had no idea."
¶ 23 Defense counsel asked why she wrote defendant's name in her note to the police officer. She answered:
"A. Well, I was in a hurry.
Q. Were you writing that to say that George was the one who beat you up for no reason?
Q. Why were saying it was George that beat you up ...