                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Brown, 2013 IL App (2d) 110327




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JAMES J. BROWN, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0327


Filed                      April 12, 2013


Held                       Defendant’s conviction for felony domestic battery was upheld over his
(Note: This syllabus       contentions that he did not knowingly and voluntarily waive a bench trial
constitutes no part of     and that his rights under the confrontation clause were violated by the
the opinion of the court   admission of his wife’s testimony that her son told her that defendant had
but has been prepared      pushed him, since the right to a bench trial is one defendant must assert,
by the Reporter of         and the son’s hearsay statement was not testimonial, but was intended to
Decisions for the          meet an ongoing emergency arising from defendant’s conduct.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Winnebago County, No. 10-CF-2984;
Review                     the Hon. Gary V. Pumilia, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  James K. Leven, of Chicago, for appellant.
Appeal
                            Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer
                            and Victoria E. Jozef, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       JUSTICE HUDSON delivered the judgment of the court, with opinion.
                            Justices Jorgensen and Birkett concurred in the judgment and opinion.




                                              OPINION

¶1                                       I. INTRODUCTION
¶2          Defendant, James J. Brown, was convicted of domestic battery (720 ILCS 5/12-3.2(a)(2)
        (West 2010)), a felony in this case. He now appeals, raising two issues. First, he contends
        that the record does not disclose that he knowingly, voluntarily, and intelligently waived his
        right to a bench trial. Second, he alleges a violation of the confrontation clause (U.S. Const.,
        amend. VI) in accordance with Crawford v. Washington, 541 U.S. 36 (2004), and its
        progeny. We find neither argument well taken and affirm.

¶3                                         II. BACKGROUND
¶4           The State obtained a three-count indictment against defendant, charging him with felony
        domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2010)). Count I alleged that he committed
        domestic battery by striking Kathy Brown (his wife). Count II alleged that he committed the
        offense by throwing milk in the face of Caden (Kathy’s five-year-old son). Count III alleged
        that defendant committed the offense by pushing over a chair in which Caden was sitting.
        Each count alleged that defendant had previously been convicted of domestic battery in an
        unrelated case.
¶5           Prior to the trial, the State brought a motion in limine seeking a ruling regarding the
        admissibility of testimony from Kathy that Caden told her that defendant had pushed him.
        The State argued that this statement was admissible as an excited utterance. Defendant
        responded that the statement was not an excited utterance and that, as testimonial hearsay,
        its admission would violate the dictates of Crawford, 514 U.S. 36. The trial court determined
        that the statement was not testimonial and was thus outside the scope of Crawford and
        allowed its admission as an excited utterance.
¶6           At trial, Sean Welsh, a Rockford police officer, first testified for the State. On August 22,
        2010, Welsh was dispatched to 1712 Tenth Street, along with Officer Richard Dodd. Dodd
        approached the residence and spoke with Kathy. Caden was also present. After learning what

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       had transpired, Dodd entered the residence to look for defendant. Defendant was not present.
       Welsh and Dodd searched the area and then drove around looking for defendant. They did
       not find him. Subsequently, they returned to 1712 Tenth Street. Welsh went to the back of
       the house, and Dodd went to the front. Dodd encountered defendant and spoke with him.
       Welsh noted that defendant’s speech was slurred, his eyes were “glossy,” his gait was
       unsteady, and his breath smelled of alcohol. Defendant was arrested. During cross-
       examination, Welsh testified that he did not recall speaking to Kathy. He did, however, have
       contact with Caden. Welsh did not observe any injuries to Caden or anything unusual about
       him.
¶7         The State next called Kathy. She testified that, in August 2010, she and defendant were
       living at 1712 Tenth Street along with Kathy’s two children–Caden and 20-year-old Corey.
       Kathy testified that, though defendant was not Caden’s biological father, he had “been his
       father since he was born.” On August 22, 2010, Kathy got up and made Caden breakfast. She
       “had him sitting in the dining room eating.” She then went out on the porch to have a
       cigarette. She could “hear what was going on in the house” from the porch.
¶8         Kathy heard defendant come out of the bedroom and yell at Caden to eat his breakfast.
       She heard Caden “whining.” She then heard a “thump,” so she went back into the house. The
       chair in which Caden had been sitting had been pushed over, and Caden was “sitting on the
       chair when it fell, so he kind of went with the chair.” It was “[j]ust a few seconds” from the
       time she heard the “thump” until she observed Caden on the floor. Defendant was in the
       dining room. Corey was lying on the couch in the living room. Caden was crying and
       appeared upset. He got up and stood by the wall. Kathy asked him what happened and he told
       her that “Daddy pushed him.” An objection by defendant was overruled at this point.
¶9         Kathy told defendant to “get the heck out.” Defendant stated that he was not going
       anywhere. They argued; then, defendant punched Kathy in the face. Next, defendant turned
       around, picked up a glass of milk, and threw it in Caden’s face. Caden started crying again.
       Kathy stated that, though it was painful when defendant hit her, she did not sustain any
       visible injuries. Caden remained near the wall throughout this altercation. Kathy took Caden
       and cleaned him up; defendant returned to the bedroom. Initially, Kathy did not contact the
       police; however, she later called them using Corey’s cell phone, as defendant had broken the
       house phone.
¶ 10       During cross-examination, Kathy testified that it was about 9 or 9:30 a.m. when she made
       breakfast for Caden. The altercation took place between 20 and 30 minutes later. She
       acknowledged that she did not call the police until after 7 p.m. She stated that Caden was not
       physically injured.1
¶ 11       Corey next testified for the State. On the morning of August 22, 2010, Corey was lying
       on the couch in the living room. He heard a crash. He started to get up, but then Kathy came
       running by. Corey could see into the dining room. He saw Kathy and defendant argue; then,


               1
                Kathy gave considerable additional testimony on both direct and cross-examination
       regarding events that transpired over the course of the day. As this testimony does not shed any light
       on the issues presented in this appeal, we will not recount it here.

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       defendant punched Kathy and threw milk in Caden’s face. Caden was upset and crying.
       Defendant and Kathy argued periodically throughout the day. Eventually, the police were
       called. On cross-examination, Corey stated that he did not speak with the police when they
       arrived. He agreed that, while he did see Caden on the floor, he did not see how Caden got
       there. He “just heard the noise.” Corey acknowledged that his relationship with defendant
       is poor.
¶ 12       Finally, the State called Dodd. At about 7:30 p.m. on August 22, 2010, he and Welsh
       were dispatched to 1712 Tenth Street. Dodd spoke with Kathy, and Welsh spoke briefly with
       Caden. They entered the house to look for defendant, but defendant was not there. They left
       to look for defendant elsewhere. Subsequently, they returned and apprehended defendant.
¶ 13       Dodd took a statement from Kathy. Kathy spoke, and Dodd wrote down what she said.
       He wrote the statement “in her first person” and read it back to her to verify that the
       information was correct. Kathy signed the statement. Dodd did not write down “every single
       detail.” During cross-examination, Dodd stated that he did not observe any injuries to Kathy
       or any signs of a struggle in the house. When Dodd first encountered defendant, defendant
       was “quiet, collected and cooperative.” Following Dodd’s testimony, the State rested and the
       defense did as well.
¶ 14       Following the trial, defendant was acquitted of the first count but convicted on the latter
       two. The trial court sentenced defendant on only the third count, finding that the facts
       underlying counts II and III were “practically simultaneous.” Defendant was sentenced to
       three years’ imprisonment and four years’ mandatory supervised release. This appeal
       followed.

¶ 15                                      III. ANALYSIS
¶ 16       On appeal, defendant raises two issues. First, he alleges error in that the record does not
       show a proper waiver of his right to a bench trial. Second, he argues that Kathy’s testimony
       that Caden told her that defendant had pushed him violated his rights under the confrontation
       clause. U.S. Const., amend. VI. We disagree with both contentions.

¶ 17                     A. Waiver of Defendant’s Right to a Bench Trial
¶ 18       Defendant first argues that we should reverse and remand for a new trial because the
       record does not disclose that he made a knowing, voluntary, and intelligent waiver of his
       right to a bench trial. In Illinois, a criminal defendant has a state constitutional right to a
       bench trial. People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 222 (1988). However, we are
       aware of no case, rule, or statute that requires that the record must show that the waiver of
       this right is knowing, voluntary, and intelligent. Defendant calls our attention to no such
       authority. Instead, defendant relies on case law regarding the waiver of a defendant’s right
       to a jury trial, asserting that the right to a bench trial should be accorded equal dignity.
       Whether a defendant must make a knowing, voluntary, and intelligent on-the-record waiver
       of the right to a bench trial presents a question of law and is therefore subject to de novo
       review (In re R.A.B., 197 Ill. 2d 358, 362 (2001)).


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¶ 19        Unquestionably, the right to a trial by jury is fundamental. Blakely v. Washington, 542
       U.S. 296, 305-06 (2004) (the right to a jury trial “is no mere procedural formality, but a
       fundamental reservation of power in our constitutional structure”); People v. McGhee, 2012
       IL App (1st) 093404, ¶ 24 (“Like the right to a trial by an unbiased jury, the right to a
       unanimous verdict is among the most fundamental of rights in Illinois.”). Accordingly, any
       waiver of this right must be knowing, voluntary, and intelligent. See People v. Todd, 178 Ill.
       2d 297, 316 (1997). Moreover, “[i]t is axiomatic that the waiver of the right to a trial by jury
       cannot be presumed from a silent record.” People v. Witt, 227 Ill. App. 3d 936, 944 (1992).
       Defendant argues that in Illinois the right to a bench trial should be accorded equal dignity.
¶ 20        To this end, defendant sets forth language from Illinois cases purporting to show the
       fundamental nature of the bench-trial right. For example, in People v. Gersch, 135 Ill. 2d
       384, 392 (1990), our supreme court observed that “the constitutional right to a bench trial in
       Illinois has existed since statehood.” In Joyce, 126 Ill. 2d at 222, the court stated:
            “The dimension of our constitutionally protected right to a trial by jury under the 1870
            constitution is clear under the Fisher and Spegal analyses, and clearly encompassed the
            right of an accused to waive trial by jury. That right, as it was understood and enjoyed
            by the people of this State (‘heretofore enjoyed’), was adopted and incorporated in our
            1970 constitution. Short of a constitutional amendment to that effect, the legislature
            cannot now deprive an accused in Illinois of any part of that constitutionally protected
            right.”
       Similarly, in People v. Hoffman, 379 Ill. 318, 321 (1942), the supreme court observed that
       “[t]he right to a trial by an impartial judge where a jury is waived is equally guaranteed and
       safeguarded by the constitution.”
¶ 21        However, even if the right to a bench trial is of stature equal to the right to a jury trial,
       it does not automatically follow that the procedures used to safeguard those rights must be
       the same. In People v. Powell, 281 Ill. App. 3d 68, 73 (1996), the Fourth District of this
       appellate court explained that the onus to assert the right to a bench trial is on a criminal
       defendant:
            “[A] jury trial is the norm for a felony case and a bench trial is the exception; therefore,
            a defendant who wishes a bench trial instead of a jury trial must make his position known
            to the trial court if his trial attorney fails to do so. If a defendant fails to speak out, as
            here, to make his desire for a bench trial known when the trial court begins the process
            of selecting and impaneling a jury, we will not entertain his later, after-the-fact claim that
            he really wanted a bench trial all along.
                In support of this holding, we note that both the federal and Illinois Constitutions
            explicitly speak of a defendant’s right to a jury trial, but neither speaks of a defendant’s
            right to a bench trial. See U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. [ ]Indeed,
            we note that defendants in federal criminal proceedings have no such right; instead,
            bench trials occur only if the defendant’s request for a jury waiver has ‘the approval of
            the court and the consent of the government.’ Fed. R. Crim. P. 23(a). Further, we note
            that section 115-1 of the Code of Criminal Procedure of 1963 indicates that a jury trial
            shall be the norm and a bench trial the exception by providing as follows: ‘All


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           prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court
           and a jury unless the defendant waives a jury trial in writing.’ 725 ILCS 5/115-1 (West
           1992).
               Even at its most efficient, the process of selecting a jury in a criminal case takes a
           considerable amount of time–usually at least an hour or more. A defendant sitting in a
           courtroom watching this process could hardly be confused as to what is taking place.
           Thus, we have no sympathy for this defendant or any other who sits through that entire
           process and–while supposedly wishing for a bench trial–says nothing to the trial court
           even though, as defendant claims here, his trial counsel has failed to request a bench trial
           in accordance with defendant’s wishes.
               The argument defendant makes here could be made in every case in which a
           defendant is convicted by a jury and the trial court did not explicitly inquire of defendant,
           before or during the jury selection process, whether he in fact wished to have a jury trial.
           We decline to impose on the trial courts the burden of making such inquiries, both
           because those courts are already sufficiently burdened with other, important procedural
           concerns and because imposing such a burden would be unwarranted.” (Emphases in
           original.)
       We find this reasoning persuasive here.
¶ 22       Moreover, we note that, where mutually exclusive, competing rights are involved,
       requiring admonishments can present certain problems. For example, a trial court need not
       advise a defendant of his or her right to testify nor must it obtain an on-the-record waiver of
       that right. People v. Davis, 378 Ill. App. 3d 1, 11 (2007). A defendant, of course, also has a
       right to refuse to testify. People v. Vaughn, 354 Ill. App. 3d 917, 924 (2004). Whether to
       advise a defendant regarding these rights is a matter within the discretion of the trial court.
       People v. Peden, 377 Ill. App. 3d 463, 471 (2007). However, a judge choosing to admonish
       a defendant on this subject must refrain from crossing into the realm of advocacy and not
       influence the defendant’s decision regarding whether to testify. See Vaughn, 354 Ill. App.
       3d at 925-26. The trial court “must be careful to issue admonishments regarding self-
       incrimination and the right not to testify without impairing the defendant’s ability to present
       his defense.” Peden, 377 Ill. App. 3d at 471. Many of the same concerns apply here; a judge
       admonishing a defendant regarding his right to a bench trial might well influence the
       defendant’s decision regarding whether to exercise his or her right to a jury trial.
¶ 23       Indeed, our supreme court has set forth several reasons why a trial court need not
       admonish a defendant regarding his right to testify:
               “ ‘At least seven reasons have been given for this conclusion: First, the right to testify
           is seen as the kind of right that must be asserted in order to be recognized. [Citation.]
           Second, it is important that the decision to testify be made at the time of trial and that the
           failure to testify not be raised as an afterthought after conviction. [Citation.] Third, by
           advising the defendant of his right to testify, the court could influence the defendant to
           waive his right not to testify, “thus threatening the exercise of this other, converse,
           constitutionally explicit and more fragile right.” [Citation.] Fourth, a court so advising
           a defendant might improperly intrude on the attorney-client relation, protected by the


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            Sixth Amendment. [Citation.] Fifth, there is danger that the judge’s admonition would
            introduce error into the trial. [Citation.] Sixth, it is hard to say when the judge should
            appropriately advise the defendant–the judge does not know the defendant is not
            testifying until the defense rests, not an opportune moment to conduct a colloquy.
            [Citation.] Seventh, the judge should not interfere with defense strategy. [Citation.]’ ”
            (Emphases in original.) People v. Smith, 176 Ill. 2d 217, 235 (1997) (quoting United
            States v. Martinez, 883 F.2d 750, 760 (9th Cir. 1989)).
       Not all of these considerations apply here, but many do. First, as noted in Powell, this right
       likewise must be asserted. As for the second factor, we believe that a post hoc claim that a
       defendant actually wanted a bench trial would be similarly problematic. Powell, 281 Ill. App.
       3d at 73 (“If a defendant fails to speak out, as here, to make his desire for a bench trial known
       when the trial court begins the process of selecting and impaneling a jury, we will not
       entertain his later, after-the-fact claim that he really wanted a bench trial all along.”). Like
       the third factor, advising a defendant regarding a bench trial could discourage the exercise
       of the constitutionally explicit right to a jury trial. Id. (“[W]e note that both the federal and
       Illinois Constitutions explicitly speak of a defendant’s right to a jury trial, but neither speaks
       of a defendant’s right to a bench trial.” (Emphases in original.)). As discussed above, there
       is a risk that a judge could assume the role of advocate and interfere with defense counsel’s
       representation, as suggested by the fourth and seventh factors. Finally, the danger of error,
       as the fifth factor sets forth, would also seem to be present. Thus, as with whether to
       admonish a defendant regarding his or her right to testify, we hold that whether to admonish
       a defendant regarding his or her right to a bench trial is a matter within the trial court’s
       discretion. It is a right that a defendant must assert. Accordingly, there is no need to obtain
       an on-the-record waiver of this right. As such, defendant’s position in this case is untenable.

¶ 24                                    B. Crawford Violation
¶ 25       Defendant next alleges a violation of the rule set forth in Crawford, 541 U.S. 36.
       Crawford forbids the admission of testimonial hearsay unless the declarant is unavailable and
       the defendant had a previous opportunity to cross-examine the declarant. People v. Ingram,
       382 Ill. App. 3d 997, 1001-02 (2008). Defendant contends that the admission of Kathy’s
       testimony that Caden told her that defendant had pushed him was error. Resolution of this
       argument turns on whether Caden’s statement was testimonial.
¶ 26       Generally speaking, a statement is testimonial if it is solemn and intended to establish
       some fact, like the testimony of a witness at a trial who is recounting past events. People v.
       Stechly, 225 Ill. 2d 246, 281-82 (2007). Statements about fault and identity are typically
       deemed testimonial. See People v. Purcell, 364 Ill. App. 3d 283, 297 (2006). However,
       statements made during the course of an ongoing emergency constitute an exception to this
       general rule. People v. Lisle, 376 Ill. App. 3d 67, 81 (2007); see also Davis v. Washington,
       547 U.S. 813, 827 (2006) (“[T]he nature of what was asked and answered in Davis, again
       viewed objectively, was such that the elicited statements were necessary to be able to resolve
       the present emergency, rather than simply to learn (as in Crawford) what had happened in
       the past. That is true even of the operator’s effort to establish the identity of the assailant, so


                                                  -7-
       that the dispatched officers might know whether they would be encountering a violent felon.”
       (Emphasis in original.)). Indeed, the Supreme Court, considering whether a statement made
       during the course of a 911 call was testimonial, observed that, while “one might call 911 to
       provide a narrative report of a crime absent any imminent danger, [the declarant’s] call was
       plainly a call for help against a bona fide physical threat.” (Emphasis in original.) Davis, 547
       U.S. at 827. The declarant was facing an ongoing emergency. Id. The primary purpose of the
       statement was to meet that emergency. Id. at 828. In other words, it was not testimonial. Id.
¶ 27        Caden’s statement was similarly intended to meet an ongoing emergency, namely, two
       incidents of domestic battery. It occurred between the points at which defendant pushed his
       chair over and defendant threw milk in his face. Specifically, according to Kathy’s testimony:
       (1) defendant yelled at Caden and Kathy heard a “thump” (presumably Caden being pushed
       to the floor); (2) Kathy entered the room and saw Caden on the floor, crying; (3) Kathy asked
       what had happened and Caden explained how he had come to be lying on the floor; (4) Kathy
       told defendant to leave; (4) defendant refused and they argued; (5) defendant threw milk in
       Caden’s face; and (6) Caden started crying again. Thus, Caden’s statement occurred during
       a fast-paced confrontation and it concerned a threat to Caden’s well being. As such, the
       statement was not testimonial. See Lisle, 376 Ill. App. 3d at 81 (“[The declarant] would,
       undoubtedly, have anticipated that identifying his assailant to his aunt would allow his aunt
       to take precautionary measures should the assailant also arrive at her residence. Therefore,
       [the declarant’s] statement *** was nontestimonial in nature.”). In sum, defendant’s rights
       under the confrontation clause (U.S. Const., amend. VI) were not violated.

¶ 28                                   IV. CONCLUSION
¶ 29       In light of the foregoing, the judgment of the circuit court of Winnebago County is
       affirmed.

¶ 30      Affirmed.




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