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People v. Moffett

Court of Appeals of Illinois, Second District

December 18, 2019

The PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Yolanda MOFFETT, Defendant-Appellee.

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         Appeal from the Circuit Court of Kane County, No. 18-CF-1382; the Hon. John A. Barsanti, Judge, presiding.

          Joseph McMahon, State's Attorney, of St. Charles ( Patrick Delfino, David J. Robinson, and Luke McNeill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          James E. Chadd, Thomas A. Lilien, and Sade V. Edwards, of State Appellate Defender's Office, of Elgin, for appellee.

          Panel BIRKETT PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

         OPINION

         BIRKETT, PRESIDING JUSTICE

         ¶ 1 In this prosecution of defendant, Yolanda Moffett, for aggravated battery of a correctional institution employee, the State appeals two orders of the circuit court of Kane County. The first is an order dismissing, on speedy-trial grounds, count II of the State's August 22, 2018, indictment. The second is an order granting in part defendant's motion in limine to exclude video evidence of the alleged battery. For the following reasons, we reverse both the dismissal of count II and the partial grant of defendant's motion in limine.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. Speedy Trial

         ¶ 4 For purposes of the speedy-trial issue, we note that defendant was in custody continuously from July 7, 2018 — when the complaint was filed — to November 6, 2019 — when defendant filed her successful motion to dismiss on speedy-trial grounds.

         ¶ 5 On July 7, 2018, defendant was charged by complaint with one count of aggravated battery of Officer Davis, a correctional institution employee. See 720 ILCS 5/12-3(a)(1), 12-3.05(d)(4) (West 2018). The complaint alleged that, on or about July 5, 2018, defendant "knowingly caused bodily harm to [Davis] * * * in that she bit [Davis's] fingers on her right hand, knowing said victim to be a correctional officer, while performing her official duties."

         ¶ 6 During defendant's first appearance on the charge, on July 13, 2018, she stated that she wished to hire an attorney and needed immediate assistance in reading documents. The trial court appointed the public defender for the limited purpose of helping defendant understand her legal situation. The court continued the matter to July 20 for the setting of a preliminary hearing. The court's order of July 13 states that the continuance was by agreement of the defense.

         ¶ 7 Meanwhile, on July 19, 2018, defendant — by the public defender— filed a demand for a speedy trial. At the status hearing on July 20, the court appointed the public defender in full. Defense counsel asked that the court "continue the matter by agreement" for counsel to review additional discovery provided by the State. The court continued the matter to August 8 for the setting of a preliminary hearing. The court's order of July 20 states that the continuance was by agreement of the defense.

         ¶ 8 At the August 8, 2018, status hearing, defendant stated that she was asserting her speedy-trial rights and wanted the case set for trial. The court set the matter for a pretrial conference on September 13 and for trial on September 17. The court then continued the matter to August 24 for a preliminary hearing. The court's order of August 8 states that "[d]efendant demands a speedy trial and objects to further continuances."

         ¶ 9 On August 22, 2018, the State filed an indictment setting forth two counts of

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aggravated battery that allegedly occurred on or about July 5. Count I alleged that defendant "knowingly caused bodily harm to Officer Davis, in that said defendant bit Officer Davis on or about the body and/or hands, knowing said victim to be a correctional officer performing her official duties." See id. § § 12-3(a)(1), 12-3.05(d)(4). Count II alleged that defendant "knowingly made physical contact of an insulting or provoking nature with Officer Davis, in that said defendant bit Officer Davis on or about the body and/or hands, knowing said victim to be a correctional officer performing her official duties." See id. § § 12-3(a)(2), 3.05(d)(4).

         ¶ 10 Defendant was arraigned on the indictment on August 24, 2018. The court remarked to defendant that count II was "exactly the same" as count I and was "just a different way of charging it." Defendant pled not guilty to both charges.

         ¶ 11 The trial court subsequently granted the State two continuances of the trial date. The first was from September 17 to October 22, and the second was from October 22 to November 13. Defendant objected to both continuances.

         ¶ 12 On November 6, 2018, defendant filed a motion to dismiss count II of the indictment, because she had not been tried on that charge within the statutory 120-day period for defendants in custody. See 725 ILCS 5/103-5(a) (West 2018) ("Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he or she was taken into custody unless delay is occasioned by the defendant * * *."). Defendant asserted in her motion that, because count II was a "new and additional charge" ( People v. Staake, 2017 IL 121755, ¶ 37, 421 Ill.Dec. 936, 102 N.E.3d 217), delays occasioned by defendant on the initial charge (filed in the complaint, on July 7, 2018) were not attributable to her on count II. According to defendant, when those delays were excluded, November 6 became day 121 of the statutory period, and therefore her speedy-trial rights were violated with respect to count II.

         ¶ 13 At the hearing on the motion to dismiss, defendant observed that battery as charged in count II of the indictment had a different element than battery as charged in the original complaint. Specifically, the original count required proof that defendant "cause[d] bodily harm" (720 ILCS 5/12-3(a)(1) (West 2018)), while count II required proof of "physical contact of an insulting or provoking nature" ( id. § 12-3(a)(2)). The trial court agreed that this was the decisive difference that rendered count II a new and additional charge. The court recognized that the State cited cases that "discuss a notice issue." See People v. Phipps, 238 Ill.2d 54, 67, 342 Ill.Dec. 893, 933 N.E.2d 1186 (2010) (in determining whether subsequent charges are new and additional, "[t]he focus is on whether the original charging instrument gave the defendant sufficient notice of the subsequent charges to prepare adequately for trial on those charges"). The court said that it was "not following the notice cases," because "[n]othing in the statute speaks to notice, nothing in the statute refers to timing in any way." The court believed, rather, that the "actual purpose" of the speedy-trial rule was to "avoid piecemeal prosecutions," such as the State was attempting in this case. Therefore, the court dismissed count II.

         ¶ 14 The State filed a motion to reconsider. The court denied the motion, adhering to its position that count II was a new and additional charge because of "the different types of mental states and different types of activity that * * * would have to be proven."

         

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          ¶ 15 B. Motion in Limine

         ¶ 16 Defendant filed a motion in limine concerning an eight-minute video that the State intended to introduce as evidence that defendant bit Davis. Defendant sought exclusion of all statements on the video as irrelevant or as inadmissible hearsay.

         ¶ 17 At the hearing on the motion, the State played the video for the court. The video shows several correctional officers, none of whom is identified in the footage itself. However, in presenting their arguments on the motion, the parties appeared to agree on the identities of two officers, Conklin and Davis. The footage begins with Conklin entering the jail cell where defendant is seated in a restraint chair with her back to the door. Conklin states that defendant has been in "the chair" for over four hours and has refused to cooperate. Conklin then tells defendant that he and female officers will remove defendant's clothing and place her in a "suicide smock." At this point, several female officers, including Davis, enter the cell. As Conklin begins to cut away defendant's shirt, she turns her head toward his hands. The female officers react by attempting to restrain defendant's head, and in the process Davis exclaims "Ow!" and jerks her hand away from defendant's face. Conklin immediately asks, "Did she bite you?" Davis immediately answers "Yes!" (The exclamation point is appropriate because Davis answers sharply; she is obviously angry, frustrated, and/or in pain.) The officers continue to cut away defendant's clothing. When her clothing is removed, the officers place the suicide smock on defendant, remove her from the restraint chair, and lay her on the floor of the cell. The footage then stops. Throughout the video, there are other remarks by the correctional officers and by defendant herself.

         ¶ 18 Defendant argued at the motion hearing that all statements on the video were inadmissible. The State claimed in response that both Davis's exclamation, "Ow," and her subsequent answer to Conklin were excited utterances. See Ill. R. Evid. 803(2) (eff. Sept. 28, 2018). The State also proposed that Davis's answer was admissible as a statement of identification.

         ¶ 19 The trial court ruled that none of the audio from the video was admissible except for Conklin's initial remarks to defendant and Davis's exclamation, "Ow!" The court agreed with the State that "Ow!" was admissible as an excited utterance; however, her answer to Conklin fell under the general bar against prior consistent statements. See Ill. R. Evid. 613(c) (eff. Oct. 15, 2015).

         ¶ 20 The court gave additional reasons for excluding the Davis's answer to Conklin. First, the answer was not a statement of identification, as there was "really no identification issue" in the case. Second, although the answer was indeed an excited utterance, it was "more prejudicial than probative":

"I understand the law on this is that you can ask questions and it still [can] be an excited utterance. I get all that, but * * * my problem with this is there is a question asked and the question and answer put together really resolves all the factual issues. I mean, many of the factual issues in this case. It's too pointed."

The court added that the answer was also "cumulative."

         ¶ 21 The State filed a motion to reconsider, proposing the additional theory that Davis's answer to Conklin was admissible as a statement of Davis's then-existing mental, emotional, or physical condition. See Ill. R. Evid. 803(3) (eff. Sept. 28, 2018). The court reaffirmed that Davis's answer was a prior consistent statement and,

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therefore, inadmissible. The court denied the motion to reconsider.

         ¶ 22 The State filed a certificate of impairment and a notice of appeal.

         ¶ 23 II. ANALYSIS

         ¶ 24 A. Speedy Trial

         ¶ 25 The State contends that, when defendant filed her motion to dismiss count II, the speedy-trial term had not yet run on that charge, given the delay to which defendant agreed on the original count of battery. According to the State, the trial court erred by deeming count II a "new and additional charge" ( Staake, 2017 IL 121755, ¶ 37, 421 Ill.Dec. 936, 102 N.E.3d 217) and thus refusing to apply to count II the agreed delay on the original charge.[1] We agree ...


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