Opinion
No. 2-17-0283
04-05-2019
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL T. SPRINGER, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Lake County.
No. 16-CF-2408
Honorable Mark L. Levitt, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court.
Justices Schostok and Spence concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not abuse its discretion in admitting the recording of a 911 call as an excited utterance: although partly in response to the dispatcher's question, the caller's statement promptly and spontaneously described a startling event, including the identity of her assailant.
¶ 2 Defendant, Michael T. Springer, appeals from the judgment of the circuit court of Lake County, challenging the admission of a recording of a 911 call. Because the admission of the 911 recording was proper as an excited utterance, we affirm.
¶ 3 I. BACKGROUND
¶ 4 Defendant was indicted on one count of aggravated domestic battery (great bodily harm) based on striking the victim on the head (720 ILCS 5/12-3.2, 3.3(a) (West 2016)), one count of aggravated domestic battery (strangling) (720 ILCS 5/12-3.3(a-5) (West 2016)), one count of domestic battery (bodily harm) based on striking the victim on the head (720 ILCS 5/12-3.2(a)(1) (West 2016)), one count of domestic battery (contact of insulting or provoking nature) based on striking the victim on the head (720 ILCS 5/12-3.2(a)(2) (West 2016)), and one count of domestic battery (contact of insulting or provoking nature) based on grabbing the victim's body (720 ILCS 5/12-3.2(a)(2) (West 2016)). Defendant opted for a jury trial.
¶ 5 Before trial, the State moved in limine to admit a recording of the victim's 911 call. Defendant objected, contending that the recording was testimonial, bolstered the victim's testimony, and served no purpose other than to prejudice defendant. The State responded, in part, that the recording was admissible as an excited utterance. The trial court granted the motion to admit the recording.
¶ 6 The following facts were established at the trial. According to the victim, Danielle Nelson, on September 6, 2016, she and defendant, whom she had dated off and on for 13 to 14 years, lived together. On that date, Nelson and defendant attended a cookout. At around 9 p.m., she and defendant left the cookout and returned home.
¶ 7 After arriving at home, Nelson took a shower while defendant lay on the bed. After her shower, Nelson asked defendant if he wanted something to eat. Defendant answered yes, and Nelson went to warm some food.
¶ 8 When Nelson returned and sat on the bed, she tapped defendant, who had fallen asleep. Defendant jumped up. When Nelson put out her arm, defendant began choking her. He choked
her hard enough that she had trouble breathing. While still choking her, defendant pressed Nelson against the refrigerator.
¶ 9 When defendant released his grip on her throat, Nelson tried to leave the apartment. According to Nelson, defendant said "[n]ot today, bitch," grabbed the back of her dress, and pulled her back into the apartment.
¶ 10 Nelson fell over a chair and coffee table, landing face down on the floor. Defendant got on top of Nelson and choked her. Then defendant stopped choking her and began punching her from behind. In doing so, he struck her head, cheek, jaw, and lip. Nelson's mouth began to bleed.
¶ 11 When defendant stopped the attack, Nelson ran to the bathroom. She then called 911.
¶ 12 When the State sought to play the 911 recording, defendant objected. Defendant stated that he was relying on his "previous standing objection to this in general." The trial court noted the objection, and the State played the recording.
¶ 13 On the recording, Nelson was crying, screaming, and difficult to understand. She reported to the dispatcher that her mouth was injured and she repeatedly asked for an ambulance. After the dispatcher indicated that an ambulance was en route, the call ended.
¶ 14 A few minutes later, Nelson called 911 again. When the dispatcher asked who had injured her, Nelson said defendant.
¶ 15 After the recording had been played, Nelson explained that she had had difficulty speaking to the dispatcher, because she could not close her mouth and her teeth were poking through her lip. Photographs showed the injuries to Nelson's upper lip.
¶ 16 After the ambulance arrived, Nelson was taken to Vista East Medical Center. She was treated by Kimberly Kowalczyk, a physician's assistant.
¶ 17 According to Kowalczyk, Nelson was crying, screaming, and bleeding from her face. When Kowalczyk asked Nelson what had happened, Nelson told her that she had been assaulted and choked by an "old friend." Nelson did not otherwise identify her assailant.
¶ 18 According to Kowalczyk, there were marks on Nelson's neck consistent with her having been choked. Nelson told Kowalczyk that, when Nelson refused to have sex, the assailant became angry, threw her down, and punched her several times in the face and head. He then put her face down on the floor, got on her back, and choked her from behind.
¶ 19 Kowlaczyk described a laceration on the inside of Nelson's upper lip. Nelson was in pain when she talked and did not have full range of motion in her jaw. Nelson reported her pain level as 10 out of 10. Because Nelson showed an elevated heart rate, rapid breathing, and nervous behavior, Kowalczyk prescribed an anti-anxiety medication.
¶ 20 According to Officer Keith Farrell of the North Chicago Police Department, on September 6, 2016, he was dispatched to investigate a possible battery. When he arrived, he encountered Nelson. She was hysterical, crying, and yelling. She was holding her jaw with blood in her hand. It was evident that Nelson was in a lot of pain.
¶ 21 Nelson provided Officer Farrell with a description of her assailant. Based on that description, another officer located defendant nearby. Officer Farrell arrested defendant and transported him to the police station. At the station, defendant admitted that he and Nelson had argued at the apartment. When Officer Farrell asked defendant how Nelson was injured, defendant answered that "it is what it is." When Officer Farrell again asked defendant how Nelson was injured, defendant said that he was guilty and did not want to discuss the incident further. On cross-examination, Officer Farrell testified that defendant never admitted specifically to having any physical contact with Nelson.
¶ 22 According to Nelson, in April 2015, defendant had attacked her in her apartment. During that incident, defendant put his hands around her throat. She did not report that incident to the police.
¶ 23 Nelson admitted to having taken medication for anxiety and depression. According to Nelson, she had stopped taking such medication years ago. Although she still suffered from anxiety, she denied having any other issues since discontinuing her medication. The parties stipulated that Nelson had suffered from schizophrenia, including auditory hallucinations.
¶ 24 The jury found defendant guilty of two counts of domestic battery (bodily harm and contact of an insulting or provoking nature) and not guilty of two counts of aggravated domestic battery (great bodily harm and strangling). The State nol-prossed the remaining count of domestic battery (grabbing the victim's body).
¶ 25 Defendant filed a motion for a new trial, in which he contended, among other things, that the trial court erred in admitting, over his hearsay objection, the 911 recording. Following the denial of the motion for a new trial, the trial court sentenced defendant to concurrent terms of 51 months in prison. Defendant, in turn, filed a timely notice of appeal.
¶ 26 II. ANALYSIS
¶ 27 On appeal, defendant contends that, because Nelson identified defendant as her assailant in response to a question, the 911 call was not an excited utterance. He further asserts that the error in admitting it was not harmless, as the evidence was closely balanced and the identification of defendant as the assailant was highly prejudicial.
¶ 28 The State responds that any claim of error was forfeited, because defendant never raised a hearsay objection at trial but only in his posttrial motion. Alternatively, the State asserts that, because the 911 recording constituted an excited utterance, it was properly admitted.
¶ 29 We initially address the forfeiture issue. To preserve an alleged error for consideration on appeal, a defendant must object at trial to the error and raise the error in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48. Issues not raised at trial and in a posttrial motion are forfeited. Sebby, 2017 IL 119445, ¶ 48.
¶ 30 Here, defendant did not forfeit the issue. Although he never raised a specific hearsay objection in response to the State's motion in limine, or when he objected to the admission of the 911 recording during trial, the State, in support of its motion in limine, argued that the 911 recording was admissible under the excited-utterance exception to the hearsay rule. Further, defendant generally objected to that ruling at trial and specifically raised the hearsay issue in his posttrial motion. Because the hearsay issue was before the trial court, it was not forfeited. See People v. Heider, 231 Ill. 2d 1, 18 (2008) (where trial court had opportunity to rule on the issue raised on appeal there is no forfeiture).
¶ 31 A well-recognized exception to the hearsay rule is for an excited utterance or spontaneous declaration. People v. Sutton, 233 Ill. 2d 89, 107 (2009). The admissibility of such an exclamation requires that (1) there must have been an occurrence that was sufficiently startling to produce a spontaneous and unreflective statement; (2) there must have been an absence of time between the occurrence and the statement such that the declarant could not have fabricated the statement; and (3) the statement must relate to the circumstances of the occurrence. Sutton, 233 Ill. 2d at 107. The critical inquiry is whether the statement was made while the excitement of the event predominated. Sutton, 233 Ill. 2d at 107-08.
¶ 32 Whether a statement is admissible as an excited utterance or spontaneous declaration is within the trial court's discretion. People v. Gwinn, 366 Ill. App. 3d 501, 517 (2006). A trial court abuses its discretion where its decision is arbitrary, fanciful, or unreasonable or where no
reasonable person would take the trial court's view. People v. Morgan, 197 Ill. 2d 404, 455 (2001).
¶ 33 In this case, the evidence established that Nelson was viciously attacked and seriously injured. She was choked to the point that she had difficulty breathing. She was punched so hard that her tooth lacerated her upper lip and she could not move her jaw sufficiently to close her mouth. She was also in great pain. Once the attack ended, she immediately ran into the bathroom and called 911. Considering the seriousness of her injuries and pain, as well as the possibility of further attack, the situation was clearly startling enough to produce a spontaneous statement. Further, she reported the incident so promptly that there was no time to reflect or fabricate. Additionally, her 911 call related to the incident. Thus, Nelson's statement to the 911 dispatcher, including her identification of defendant as her assailant, was an excited utterance.
¶ 34 Although defendant asserts that Nelson's identification of him was not spontaneous, because it was in response to a question from the dispatcher, we disagree. Admittedly, Nelson, when asked who the assailant was, identified defendant. However, that single question and answer did not detract from the overall spontaneity of Nelson's statement during the 911 call. Indeed, being asked what happened by law enforcement does not destroy the spontaneity of a statement. See People v. Damen, 28 Ill. 2d 464, 472 (1963) (simply because a police officer asks a witness what happened does not destroy the spontaneity of the witness's statement). Thus, Nelson's statement identifying defendant as her assailant was spontaneous, notwithstanding that it was made in response to a question from the dispatcher.
¶ 35 Additionally, defendant's reliance on People v. Sommerville, 193 Ill. App. 3d 161 (1990), is misplaced. In Sommerville, because a rape victim's statements to her fiancé were made in response to a series of questions after the incident, the court rejected the State's argument that
they were spontaneous declarations. Sommerville, 193 Ill. App. 3d at 175. Here, however, Nelson did not provide information in response to a series of questions following the incident. Rather, she made the call immediately after defendant had ceased his attack and only after she had escaped to the bathroom. Thus, Nelson made the call while the excitement of the incident was ongoing. Further, she identified defendant in response to a single question. Thus, unlike in Sommerville, Nelson's statement to the dispatcher was not the product of a series of post-occurrence questions.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 38 Affirmed.