                          No. 3--08--1027

                  Opinion filed January 4, 2011
_________________________________________________________________

                                IN THE

                   APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                              A.D., 2011

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 12th Judicial Circuit,
                                ) Will County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 07--CM--2425
                                )
PHILLIP CONNOLLY,               ) Honorable
                                ) Bennett J. Braun,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

     JUSTICE CARTER delivered the judgment of the court, with
opinion.
     Justice Lytton concurred in the judgment and opinion.
     Justice Wright dissented, with opinion.
_________________________________________________________________

                               OPINION

     After a jury trial, the defendant, Phillip Connolly, was

convicted of domestic battery (720 ILCS 5/12--3.2(a)(2) (West

2006)) and endangering the life or health of a child (720 ILCS

5/12--21.6(a) (West 2006)).    The trial court sentenced the

defendant to 364 days' imprisonment.       The defendant appealed,

contending that his domestic battery conviction must be reversed

and his endangering the life or health of a child conviction must

be vacated because the trial court improperly admitted a hearsay

statement of Melissa Connolly.    We affirm.

                                 FACTS

     The charges against the defendant arose from an argument
between the defendant and his wife, Melissa, outside their home.

The couple's neighbor, Dina Perritano, testified that she was

sleeping on her couch after working all night when her son woke

her up because the defendant and Melissa were arguing outside.

Perritano went outside, and observed Melissa seated in the

driver's seat of her vehicle and the defendant standing in the

open doorway of the vehicle, holding their son on his hip.

Perritano testified that the defendant and Melissa were screaming

and yelling at each other, and Melissa threatened to call the

police.    Perritano returned to her home and telephoned the

police.    When she turned back toward the argument, the child was

sitting in the middle of the two-lane street and the defendant

was leaning over Melissa while screaming at her.    Perritano

estimated that the child was in the middle of the street for a

few minutes.    Perritano saw a car coming slowly down the street,

but it came to a stop and the defendant picked up the child and

left.   Melissa remained in her vehicle until the police arrived.

Perritano estimated that the police arrived a few minutes after

the defendant left with the child.    When the police officer

arrived that day, he spoke separately to Melissa and then spoke

to Perritano.

     Jon Muehlbauer, a deputy with the Will County sheriff's

department, testified he arrived at the scene within five to

seven minutes after he was dispatched.    He first spoke to

Melissa, who appeared upset, agitated, and nervous upon his

arrival.   The defense objected to allowing Muehlbauer to testify


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as to what Melissa told him, but the trial court overruled the

objection, finding an adequate foundation, and allowed Melissa's

statements to be admitted under the excited utterance exception

to hearsay.   Muehlbauer went on to testify that Melissa told him

that the defendant pulled her out of her vehicle and battered her

about the head.    Melissa also told Muehlbauer that the defendant

put the child down in the middle of the street.    The deputy did

not recall seeing injuries on Melissa.    He then spoke to

Perritano and the driver of the car that stopped.    Muehlbauer

attempted to locate the defendant, but could not find him.

Muehlbauer located the child in a residence down the street and

returned the child to his mother, Melissa.    The State rested, and

the defendant's motion for a directed verdict was denied.

     Melissa testified for the defense.    She stated that, at the

time of the incident, their child was 19 months old.    Melissa

testified that she had an argument with the defendant, but that

he did not strike her and he never set the child down.    She

testified that she was calm when she spoke to Muehlbauer about 10

minutes after the argument.

     The defendant also testified.    He denied putting the child

in the street.    He testified that he had an argument with

Melissa, but he could not recall what it was about.    He heard

Perritano say that she was calling the police, but he did not run

away with the child.    According to the defendant, he was taking

the child for a walk in his stroller.




                                  3
     The jury found the defendant guilty of both offenses, and

the defendant's motion for a new trial was denied.   At

sentencing, the trial court noted that the defendant and Melissa

were "two of the least believable witnesses [he] ever heard" in

the two decades he had been licensed to practice law and

sentenced the defendant to 364 days' imprisonment.

                             ANALYSIS

     The defendant contends that the trial court abused its

discretion by admitting Melissa's statements to the officer under

the excited utterance exception to the hearsay rule.   The

defendant also contends that the admission of Melissa's

statements violated the confrontation clause of the United States

Constitution (U.S. Const., amend VI).    The defendant argues that

if Melissa's out-of-court statements were improperly admitted by

the court as an exception to the hearsay rule, double jeopardy

bars his retrial for domestic battery.

     The State contends the trial court properly admitted

Melissa’s responses to the officer's questions as an excited

utterance.   Alternatively, the State submits that even if an
error occurred there is no double jeopardy bar to a retrial on

these charges.

     We begin by considering the defendant's argument that

Melissa's statements constituted inadmissible hearsay.    Out-of-

court statements offered to prove the truth of the matter

asserted are inadmissible hearsay and considered to lack



                                 4
reliability unless an exception applies.     People v. Tenney, 205

Ill. 2d 411 (2002).

     The State offered Melissa's out-of-court statements to the

jury for the truth of the matters asserted, so her statements

were hearsay unless an exception applied.     The trial court found

that the excited utterance, or spontaneous declaration, exception

applied, and it admitted the statements.

     Our supreme court has explained that the excited utterance

exception to the hearsay rule was based on human experience.
That is, where people are under physical or mental shock, they

experience a stress of nervous excitement which produces a

statement that expresses the real belief of the speaker as to the

facts just observed.     People v. Damen, 28 Ill. 2d 464 (1963).1

It is not unusual for the State to attempt to utilize the excited

utterance exception when appropriate.     See, e.g., People v.

Gwinn, 366 Ill. App. 3d 501 (2006); People v. Robinson, 379 Ill.

App. 3d 679 (2008), appeal allowed, 228 Ill. 2d 548 (2008).



     1
         This excited utterance exception has a long history in the

common law of evidence.     See Thompson v. Trevanion, (1693) Skin.

402, 90 Eng. Rep. 179 (K.B.) (in an action for trespass of the

wife of the plaintiff, Chief Justice Holt found that what the

wife said immediately upon the hurt received, and before there

was time to contrive anything, might be given in evidence); see

generally 6 J. Wigmore, Evidence §§1747-50 (Chadbourn rev. ed.

1976).

                                   5
Given the studied psychological dynamics of domestic violence

(see generally M. Dutton, Understanding Women's Responses to

Domestic Violence: A Redefinition of Battered Woman Syndrome, 21

Hofstra L. Rev. 1191 (1993)), efforts by the State to rely on the

hearsay exception might arise from the recognition that domestic

violence is a type of crime that is very susceptible to

intimidation of the victim to ensure the victim does not testify

against the abuser.    See People v. Dabbs, No. 109698 (Nov. 18,

2010) (discussing the legitimate concern of the General Assembly

with the effective prosecution of crimes of domestic violence).

     For the excited utterance exception to the hearsay rule to

apply, "there must be an occurrence sufficiently startling to

produce a spontaneous and unreflecting statement, there must be

an absence of time for the declarant to fabricate the statement,

and the statement must relate to the circumstances of the

occurrence."     People v. Sutton, 233 Ill. 2d 89, 107 (2009).

Courts look at the totality of the circumstances to determine

whether a statement is admissible under the excited utterance

exception.     People v. Williams, 193 Ill. 2d 306 (2000).   An event

can be sufficiently startling, even in the absence of physical

injury, based on the totality of the circumstances.      Robinson,

379 Ill. App. 3d 679.

     While the amount of time necessary for fabrication may vary

greatly, the critical inquiry with regard to time is whether the

statement was made while the declarant was still affected by the

excitement of the event.     Sutton, 233 Ill. 2d 89.   The time


                                   6
factor is not viewed in isolation, but in the context of the

event.   For example, a 15 to 20 minute delay between an incident

of home invasion and aggravated domestic battery and the victim's

statement to the police concerning the events does not destroy

spontaneity under given circumstances.     Gwinn, 366 Ill. App. 3d

501 (victim was crying, trembling, and visibly shaken, as well as

injured, when she made the statement to officers).

     The fact that a statement is made in response to an inquiry

does not destroy spontaneity.   People v. Lisle, 376 Ill. App. 3d

67 (2007), appeal denied, 226 Ill. 2d 598 (2007).    In Damen, 28

Ill. 2d at 470, a forcible rape case, our supreme court noted the

fact an officer asked the complainant "what happened" was

insufficient to destroy its spontaneity.    See also Williams, 193

Ill. 2d 306.   In another case, when the statements are made in

respect to a police officer's questions more than 20 minutes

after the crime had occurred, the victim's statement was still

considered a spontaneous declaration.    Sutton, 233 Ill. 2d 89

(victim's statement made while excitement of the event

predominated).   An excited utterance can still be made even after

having spoken previously to another after the event.    See People

v. House, 141 Ill. 2d 323 (1990) (rejecting the argument that a

declarant cannot make a spontaneous declaration to a person after

having spoken previously to another).

     The trial court in the instant case determined that

Melissa's statements were admissible as excited utterances, so

our review is limited to whether that determination was an abuse


                                 7
of discretion.    People v. Cookson, 215 Ill. 2d 194 (2005).

Evidentiary rulings are within the sound discretion of the trial

court, and we review those rulings with deference to the trial

court.   People v. Caffey, 205 Ill. 2d 52 (2001).    This court will

find an abuse of discretion only where the trial court's ruling

is arbitrary, fanciful, unreasonable, or where no reasonable

person could take the view adopted by the trial court.      Caffey,

205 Ill. 2d 52.   Inasmuch as the application of the excited

utterance exception always depends on the circumstances of the

particular case, it has been suggested that the trial court

should be clothed with a reasonable degree of latitude.     Peterson

v. Cochran & McCluer Co., 308 Ill. App. 348 (1941); see 6 J.

Wigmore, Evidence §1750 (Chadbourn rev. ed. 1976).

     In this case, the totality of the circumstances support the

trial court's finding that Melissa's statements were excited

utterances.   Domestic violence is an intolerable offense

sufficiently startling to render inoperative the normal

reflective thought processes of the victim.   Her statements were

made within a relatively short time span following the occurrence

that allowed the emotional upset to continue.   There does not

appear to have been any time for reflection by Melissa prior to

her statements to the police officer.   Muehlbauer arrived on the

scene within minutes of the argument between Melissa and the

defendant.    Melissa was still at the scene in a nervous, upset,

and agitated condition, directly related to the event.    Her child

was absent.   The defendant was no longer at the scene, and he had


                                  8
taken the child.   Muehlbauer left Melissa at the scene to look

for the defendant and the child.       We find no abuse of discretion

in the conclusion that Melissa's responses to police questioning

on the scene were excited utterances and were admissible.

     Having determined that Melissa's statements to Muehlbauer

were admissible as exceptions to hearsay, we must address the

constitutional issue based on the confrontation clause.       Melissa

did not testify for the State, so she was not subject to cross-

examination for purposes of the sixth amendment confrontation

clause.   See Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S.

Ct. 2527 (2009) (confrontation clause imposes a burden on the

prosecution, not the defendant, to produce witnesses against the

defendant).

     The confrontation clause provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right *** to be

confronted with the witnesses against him[.]"       U.S. Const.,

amends. VI, XIV.   A testimonial out-of-court statement by a

witness who does not testify at trial is not admissible unless

the witness is unavailable to testify and the defendant had a

prior opportunity for cross-examination.        Crawford v. Washington,

541 U.S. 36 (2004); People v. Stechly, 225 Ill. 2d 246 (2007).

The confrontation clause does not apply, however, if the

statements are not testimonial.        Stechly, 225 Ill. 2d 246.

     The trial court found that Melissa's statements were not

testimonial and, thus, did not violate the confrontation clause

with their admission into evidence.       A sixth amendment


                                   9
confrontation clause violation claim is a question of law that we

review de novo.     People v. Williams, 238 Ill. 2d 125 (2010);

People v. Lovejoy, 235 Ill. 2d 97 (2009).

     A statement is testimonial if it is made in a solemn fashion

and is intended to establish a particular fact.      Stechly, 225

Ill. 2d 246.    However, just because a statement was made to a

police officer, standing alone, does not mean the statement is

prohibited.    A statement made to a law enforcement official is

not testimonial when the circumstances objectively indicate that

the primary purpose of any questioning was to address an ongoing

emergency.     Sutton, 233 Ill. 2d 89.   The Davis court applied four

factors when deciding whether interrogation was to meet an

ongoing emergency: whether the purpose was to determine a past

fact or ascertain an ongoing event; whether the situation could

be described as an emergency; whether the nature of the questions

focused on the present or on the past; and finally, the level of

formality involved.     Davis v. Washington, 547 U.S. 813 (2006).

In such circumstances, the objective intent of the questioner,

not the questioner's status, becomes the determinative question.

In re Rolandis G., 232 Ill. 2d 13 (2008).

     Muehlbauer testified that when he arrived at the scene,

Melissa was still at the scene and she appeared upset, nervous,

and agitated.    He first talked to Melissa.   She told him that the

defendant had pulled her out of her vehicle and battered her

about the head, and that the defendant had set the child in the

middle of the street.    The defendant had also taken the child.


                                  10
After questioning the two other witnesses at the scene, assessing

the ongoing situation, Muehlbauer proceeded to try to locate the

defendant and the child.                In fact, he eventually located the

child and then returned the child to his mother, Melissa.                                  We

conclude that Melissa's statements to Muehlbauer were

nontestimonial because Muehlbauer was addressing an ongoing

emergency.        As such, the confrontation clause did not bar the

admission of Melissa's statements.                      Having found Melissa's

statements were an exception to the hearsay rule that did not

violate the confrontation clause, we need not address the double

jeopardy argument.

                                           CONCLUSION

       For the foregoing reasons, the judgment of the circuit court

of Will County is affirmed.

       Affirmed.

       JUSTICE WRIGHT, dissenting:

       In this case, the couple’s neighbor, Dina Perritano,

testified that she observed defendant and Melissa screaming and

yelling at each other outside their residence while Melissa was seated

in the driver’s seat of her vehicle. Perritano observed defendant was standing in the open

doorway of the vehicle, holding their son on his hip. During this verbal argument, Perritano heard

Melissa threaten to call the police. Perritano did not observe any physical contact between the

couple but called the police on her own initiative. Perritano estimated that the police arrived a

few minutes later after defendant left with his son.



                                                 11
       Jon Muehlbauer, a deputy with the Will County sheriff's department, testified he arrived at

the scene within five to seven minutes after he was dispatched to that location. He spoke to

Melissa who told him that defendant pulled her out of her vehicle and battered her about the head.

The officer described her to be upset and nervous.

       For the excited utterance exception to the hearsay rule to apply, "there must be an

occurrence sufficiently startling to produce a spontaneous and unreflecting statement, there must

be an absence of time for the declarant to fabricate the statement, and the statement must relate to

the circumstances of the occurrence." People v. Sutton, 233 Ill. 2d 89, 107 (2009). In this case, I

conclude that the events witnessed by the neighbor do not indicate that there was a sufficiently

startling event or the required spontaneity to trigger this narrow and inflexible exception to the

hearsay rule.

        Generally, many people who speak to investigating officers are both upset and nervous.

The excited utterance requires something more, that is, a sufficiently startling event to trigger a

spontaneous declaration. Mere nervousness and anxiety is not enough.

       Here, the neighbor’s testimony established that heated verbal altercations were not

unusual for this couple and that the police officer arrived on the scene between 5 and 10 minutes

after the couple separated. This time period would allow sufficient time for Melissa’s personal

reflection, thereby negating the spontaneity of her responses to the officer's questions. Based on

the circumstances of this case, it is unclear whether Melissa was upset because her child had been

removed from the area by his father or upset by the purported altercation.

       In my view, the foundation for an excited utterance exception should not vary due to the

domestic nature of the underlying offense or based on the reality that the State cannot prove their

                                                 12
case without the statement. In this case, the State’s evidence neither satisfied the requirement that

the occurrence in this case was startling for this declarant and also failed to establish there was not

an opportunity for the declarant’s reflection. Thus, I have reached the conclusion that Melissa's

out-of-court statement to Muehlbauer constituted inadmissible hearsay and requires reversal of

defendant’s conviction.

        Next, based on my position as set forth above, I reject defendant’s contention that a

retrial for domestic battery is barred based upon double jeopardy considerations. Double

jeopardy does not prevent a retrial, when a conviction is overturned due to an error in the trial.

People v. Lopez, 229 Ill. 2d 322, 367 (2008). When deciding if the evidence was sufficient to

sustain a conviction, for double jeopardy purposes, this court may consider all of the evidence

admitted at trial, even the erroneously admitted evidence. If viewing all the evidence in the light

most favorable to the State, a rational trier of fact could have found all of the elements of the

crime beyond a reasonable doubt, there is no double jeopardy bar to retrial. People v. Lopez, 229

Ill. 2d at 367.

        In this case, Melissa told the police officer that defendant had pulled her out of the car and

battered her about the head. Moreover, upon remand, Melissa could change her mind and elect to

testify for the State in a fashion that is consistent with her out-of-court statements to the officer.

Viewing all of the evidence, including the improperly admitted evidence, I conclude that a

reasonable trier of fact could have found defendant guilty of domestic battery.

        As for defendant's conviction of endangering the life or health of a child, the State

contends that retrial is not warranted because any error was harmless. Although there was

sufficient evidence to sustain the conviction, the impact of the erroneous admission of Melissa's

                                                  13
statements to the officer cannot be considered harmless in this case. See People v. Stechly, 225

Ill. 2d 246 (2007).

       Consequently, I would find the trial court abused its discretion by admitting the out-of-

court statement as a spontaneous utterance, vacate both convictions, and remand the cause for a

new trial on both charges.

       For the foregoing reasons, I respectfully dissent.




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