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People v. Axtell

Court of Appeals of Illinois, Second District

December 21, 2017

MICHAEL S. AXTELL, Defendant-Appellant.

         Appeal from the Circuit Court of Lake County. No. 12-CF-2977 Honorable Victoria A. Rossetti, Judge, Presiding.

          PRESIDING JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.



         ¶ 1 After a bench trial, defendant, Michael S. Axtell, was convicted of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2012)) and sentenced to 30 years' imprisonment. On appeal, he contends, first, that his conviction must be reduced to involuntary manslaughter (720 ILCS 5/9-3(a) (West 2012)) because the State did not prove beyond a reasonable doubt that he knew that the act that caused the victim's death created a strong probability of death or great bodily harm to her (720 ILCS 5/9-1(a)(2) (West 2012)). Second, he contends that the trial court erred in admitting a statement that the victim made shortly before the fatal incident. Third, he contends that, if his conviction is affirmed, the judgment order must be corrected. We affirm the judgment as modified.

         ¶ 2 Defendant was charged with murdering Tammy Stone on the evening of October 4, 2012. At the time, they were residing in her house in Antioch with their son, Michael, and Jordan Johnson, Stone's son by another man. Defendant and Stone had a daughter, Meghan, who lived elsewhere. The indictment charged defendant with striking Stone about the body, knowing that his acts created a strong probability of death or great bodily harm to her.

         ¶ 3 The State moved in limine to admit several statements as exceptions to the hearsay rule. Only one is at issue here. According to the State, Jordan would testify as follows. On the evening of October 4, 2012, he heard Stone and defendant yelling. He then saw Stone lying unconscious on the kitchen floor. He returned to his room. Stone regained consciousness, ran into his room, and told him, " 'We need to find the phone or [defendant] is going to kill me.' "

         ¶ 4 As pertinent here, the State argued that the statement was admissible under the exception to the hearsay rule for spontaneous declarations, because (a) there was an occurrence sufficiently startling to produce a spontaneous and unreflecting statement-i.e., defendant's attack on Stone, (b) there was insufficient time for her to fabricate the statement, and (c) the statement related to the circumstances of the occurrence. See Ill. R. Evid. 803(2) (eff. Jan. 1, 2011); People v. Williams, 193 Ill.2d 306, 352 (2000). Defendant argued that Stone's statement was not a spontaneous declaration, in part because it did not relate to a preceding occurrence. Without explanation, the court ruled that Stone's remark was admissible as a spontaneous declaration.

         ¶ 5 At trial, the State first called Meghan. She testified as follows. She was 21 years old and lived with her grandmother in Lake Villa, where she had resided on October 4, 2012. Defendant and Stone had never married; shortly after Meghan was born, defendant moved out of state. In 2011, he and Stone resumed their relationship, and he moved in with her, Michael, and Jordan.

         ¶ 6 Meghan testified that, on October 4, 2012, she, defendant, and Stone went to lunch at Chopper's Bar and Grill. After an hour, Stone and Meghan went shopping while defendant stayed at Chopper's. When they finished shopping, Stone and Meghan returned home. Defendant and Jordan were there; Michael was not. At some point, Stone asked Meghan to accompany her and defendant to Yvonne's, a restaurant in Ingleside, but she declined and went home. Later that evening, she and her friend Jenna Rice visited Joe Janusz in Round Lake Beach.

         ¶ 7 Meghan testified that, while she was with Joe and Jenna, she received a call on her cell phone from Stone. Stone was crying and said that "she got her ass beat" by defendant. Jenna drove Meghan and Joe to Stone's home. Meghan exited the car. Stone was standing outside. She had a black eye. Meghan entered the house through the garage, locked the door to the house, then passed through the laundry room and into the kitchen. She saw defendant, who was on the couch in the living room.

         ¶ 8 Meghan testified that she asked defendant why he had put his hands on Stone. Defendant said that "she grabbed his nuts." Meghan replied that he still had no right to hurt her. Meghan entered the living room. Defendant stood up and approached her. Stone, Jenna, and Joe entered, having been let in by Jordan. Defendant and Stone started arguing. Meghan told defendant to get his things and move out. Defendant pushed her; she pushed him down, pinned him to the loveseat, and struck him. Joe pulled her off. At Stone's request, Jenna called the police. Meghan, Jenna, and Joe walked to the garage area.

         ¶ 9 Meghan testified that she heard a loud thud and ran back into the house. From the kitchen area, she could see into the living room and down the hallway. Defendant was exiting Stone's bedroom, closing the door behind him. As he crossed Meghan's path, she asked what the noise had been. He responded, " 'nothing.' " Meghan opened the bedroom door. Stone was lying unconscious on the floor. Meghan shook her and spoke to her but got no response. Jordan, Joe, and Jenna soon entered. They put Stone onto the bed and turned her head to the side, because "she was kind of choking on her spit" and having trouble breathing. Her eyes were rolling back into her head. Jenna called the police, and the other three left the room.

         ¶ 10 Jenna testified as follows. While she, Meghan, and Joe were at Joe's house, Meghan received a call and said that they needed to go to Stone's house. Jenna drove them there. As she pulled into the driveway, she saw that Stone was standing outside. Jenna, Meghan, and Joe exited the car. Meghan ran to the attached garage and inside the house. Jenna and Joe approached Stone. Stone had a bruise on her left cheek, with some swelling. Jenna eventually went to the back door of the house, where Jordan let her, Stone, and Joe in.

         ¶ 11 Jenna testified that, after going inside, she saw Meghan and defendant arguing in the living room. Stone pulled Jenna aside and showed her the swelling near her left eye and cheek. Jenna then saw defendant and Meghan fighting. Stone told Jenna to call the police. Jenna left as Meghan was pinning defendant. Outside, she called the police and remained on the line. She reentered the living room and saw that Joe had pulled Meghan off defendant. Jenna, Meghan, and Joe went to the garage. As she left, Jenna saw defendant and Stone enter the bedroom.

         ¶ 12 Jenna testified that, in the garage, she heard a loud thud. She, Meghan, and Joe ran back inside, where they saw defendant leaving the bedroom. He passed them and had a brief exchange with Meghan. Jenna and Joe entered the bedroom. Stone was lying on the floor. Meghan and Joe moved her to the bed and tried to get her to open her eyes and talk, without success. Remembering that she had left her car running, Jenna ran out and saw defendant entering it. She reached in, turned off the car, and took the keys. As she turned around, she saw defendant walking away. She reentered the bedroom. Stone was still not moving. Jenna and Joe went outside. Soon, the police arrived.

         ¶ 13 Jordan testified as follows. On October 4, 2012, at about 4 p.m., he came home from school. Defendant was on the living room couch. Stone was in her bedroom. Jordan went to his room and played a game online. Defendant and Stone left the house and returned at about 8 or 9 p.m. Jordan was in his room with the door closed and a headset on. He could hear defendant and Stone arguing in "the other end of the house." Jordan then heard a loud thud from the living room. He left his room. Stone was on the floor next to the couch, crying. Defendant was at the other end of the couch, his feet near her head. He was not helping her. Jordan asked what had happened. He got no response and returned to his room.

         ¶ 14 Jordan testified that, shortly afterward, he heard yelling, followed by a second thud. He left his room. Stone was lying on the floor between the kitchen and the living room. Her head was about two feet from defendant, who was sitting in a chair. He was looking down at Stone but not helping her. Stone did not appear conscious. Jordan dragged her to the living room. He returned to his room, closed the door, and resumed his game.

         ¶ 15 Jordan testified that, perhaps five minutes later, Stone entered his room. Over defendant's objection, Jordan testified that she told him, " 'help me find my phone. [Defendant] is going to kill me.' " He found Stone's phone, and she called Meghan. When Meghan arrived, Jordan had returned to his bedroom. Hearing Meghan yell, he left his room. He saw Meghan tackle defendant and get on top of him; Joe pulled her off. Jenna called the police. Everyone but defendant and Stone went to the garage.

         ¶ 16 Jordan testified that, while in the garage, he heard "a loud thud from across the house." He, Meghan, Jenna, and Joe reentered the house. Defendant was walking away from the bedroom. Jordan and the others entered the bedroom. Stone was unconscious on the floor and was making sounds like snoring. She was not moving or responsive. Later, the police arrived.

         ¶ 17 Joe testified as follows. On the evening of October 4, 2012, he, Stone, and Jenna drove from his house to Stone's house. As Jenna pulled into the driveway, Stone was outside nearby. She had a bruise on her face. Meghan exited the car and ran inside. The door from the garage to the house was locked, so Joe, Jenna, and Stone went around the back, where Jordan let them in. Defendant and Meghan were inside. They were yelling at each other. Defendant started arguing loudly with Stone. He and Meghan got into an altercation; Joe pulled Meghan off defendant.

         ¶ 18 Lieutenant Michael Keller of the Lake County sheriff's office testified that, shortly after midnight on October 5, 2012, he arrested defendant, who was walking on the shoulder of Route 173. Detective Craig Somerville arrived and placed defendant into his squad car. Somerville testified that, on the ride to the station, defendant appeared intoxicated and said, among other things, "[W]hat would you do if somebody grabbed your nuts like Tammy did." At the station, defendant was questioned by Sergeant Kevin Eckenstahler. The interview was recorded.

         ¶ 19 Eckenstahler testified that he asked defendant what had happened. Defendant responded that, when he and Stone returned from Yvonne's, Stone started "talking shit." During a break, Somerville took several photographs of defendant. Eckenstahler and Somerville gave defendant a change of clothes and left the room. While alone, defendant continued to talk, calling Stone names and saying, " 'I need to figure this out, self-defense.' " Eckenstahler returned, told him that Stone had died, then left. Defendant expressed disbelief, cried, and said that he had done nothing. Eckenstahler returned and resumed the interview. Defendant said that Stone bruised the area of her left eye when she fell off a kitchen chair and landed on her face. The DVD of the interview was played in court.

         ¶ 20 Brian Dekind testified that, on the evening of October 4, 2012, he was a volunteer paramedic and was dispatched to Stone's home. As he entered, he saw a sheriff's deputy performing CPR on Stone, who was lying face-up on the bed. The deputy and Dekind moved her onto the floor and continued CPR. An ambulance arrived and took Stone to a hospital.

         ¶ 21 The State called Dr. Nancy Jones, whom the court qualified as an expert in forensic pathology. On direct examination, she testified as follows. On the morning of October 5, 2012, she performed the autopsy on Stone. Afterward, she learned that Stone had lost consciousness at least once before the incident in the bedroom. A concussion could have caused the loss of consciousness, had it been sufficiently severe. A concussion is "a brain injury without physical evidence of an injury." It does not produce contusions or bleeding but disrupts the nerve impulses between the brain and the rest of the body. A person who sustains a concussion is more susceptible to another concussion, which can be more severe even with less of an impact.

         ¶ 22 Jones testified that the autopsy began with an external examination, which showed several blunt-trauma injuries. Stone had a fresh bruise with swelling around the area of the left eye and cheek, some abrasions on her left arm, bruising on her right shoulder, and minor impact injuries on her extremities. The bruising to her left cheek was not consistent with a fall.

         ¶ 23 Jones testified next about the internal examination. She found a "subgaleal hemorrhage, " i.e., bleeding on the left parietal region of the top of the scalp. Otherwise, the skull appeared normal; there were no fractures. Next, Jones removed the skull cap. She immediately noticed a "subarachnoid hemorrhage, " i.e., bleeding on the surface of the brain itself. The bleeding "feathered up along the side over the top of the brain, " and the brain was swollen. She had the area photographed, then removed the brain. There was considerable bleeding on the interior surface of the brain, concentrated around the brain stem.

         ¶ 24 Jones testified that, to locate the source of the bleeding, she removed the brain completely and washed away the blood to expose the vessels at the base of the brain, known as the circle of Willis. The circle of Willis supplies blood to the brain. Two vertebral arteries that run up the spinal column meet at the brain stem to form the basal artery; this artery continues forward, with "different branches coming off the cerebral arteries, posterior cerebral arteries." The overall pattern is a rough circle with vessels going to the right and left sides of the brain. Jones discovered a laceration, specifically a longitudinal tear, in the right posterior cerebral artery. She had it photographed, then removed the circle of Willis so as to preserve it in formalin.

         ¶ 25 Jones identified and described six photographs taken during the internal examination. The photographs were admitted into evidence. Jones testified that one photograph (People's exhibit No. 59) showed the vicinity of the tear, which she had marked with scissors. She noted that the artery was intact at the point of the scissors and slightly onward but that the photograph showed the ragged and irregular portion of the artery where it was split. Jones testified that another photograph (People's exhibit No. 60) showed "the bony ridges that are present over the base of the skull which can cause lacerations or tears of the blood vessels at the base of the brain if the brain moves inside the skull."

         ¶ 26 Jones testified that a subarachnoid hemorrhage can be caused by the rupture of an aneurysm. An aneurysm is a weakening of the blood vessel wall, causing it to expand, and can result from turbulent blood flow, hardening of the arteries, or repetitive impact to the blood vessel. The first two kinds are the most common. The first normally occurs at branch points in blood vessels; the laceration to Stone's artery did not occur at a branch point. Jones examined the circle of Willis for an aneurysm but found none. She did not notice any congenital defects in the vessels or anything unusual for a woman of Stone's age (40).

         ¶ 27 Jones testified that, once a person suffers the type of arterial laceration that Stone received, death is very rapid, especially with the great bleeding present in her case. Although Stone was intoxicated when she died, that played no role in her injury.

         ¶ 28 Jones testified that, to a reasonable degree of scientific certainty, Stone's death was caused by "a subarachnoid hemorrhage due to a lacerated cerebral artery due to blunt head trauma due to assault." She explained that, to bring about such a chain of events, the assault's impact must cause the head to hyperextend and rotate. With the head extending backward, the blood vessels stretch; with the rotation, the brain moves across the base of the skull and exposes blood vessels to the danger of running across the bony ridges at the base of the skull. A blood vessel can tear because it is stretched too far or because it makes contact with a bony ridge. It is quite possible for all of this to occur without leaving any external sign of ...

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