People v. Gwinn

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People v. Gwinn

State: Illinois

Court: 2nd District Appellate

Docket No: 2-04-0100 Rel

Case Date: 06/28/2006

Preview:No. 2--04--0100

filed:

6/28/06 ______________________________________________________________________ ________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________ ________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 01--CF--0268 ) ERNEST E. GWINN, ) Honorable ) John T. Phillips, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________________ _____ JUSTICE BOWMAN delivered the opinion of the court: Following a jury trial, defendant, Ernest E. Gwinn, was found guilty of home invasion (720 ILCS 5/12--11(a)(2) (West 2002)) and aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2002)). The trial court did not impose a sentence for aggravated domestic battery but sentenced defendant to 20 years' imprisonment for home invasion. On appeal, defendant argues that (1) he was not proven guilty beyond a reasonable doubt of home invasion; (2) the trial court erred by admitting evidence that defendant attempted to tamper with witnesses; (3) the victim's out-of-court statement to police was inadmissible hearsay; (4) the trial court erred by refusing to give two jury instructions; and (5) the home invasion statute was not intended to extend to the domestic arena. We affirm. 1

I. BACKGROUND Defendant was charged with three counts of home invasion and one count of aggravated domestic battery. Count I alleged that on July 18, 2002, defendant knowingly and without authority entered the dwelling place of Tanya Allen and intentionally injured her by striking her in the face. Count II alleged that defendant committed home invasion while armed with barber clippers, a dangerous weapon, and threatened the imminent use of force by stating that he was "going to beat" Allen. Count III alleged that defendant committed home invasion while armed with barber clippers and threatened the imminent use of force by swinging the barber clippers at Allen. Count IV alleged that defendant knowingly caused great bodily harm to Allen, a member of defendant's family or household, by striking her in the face with his fist. A. Other-Crimes Evidence Trial was originally set for March 3, 2003, and a jury was selected. The parties and the court then discussed various motions, one of which was the State's motion to admit evidence of Western Union money transfers. According to the State, defendant was wiring money to Allen in order to influence her testimony. Defendant, under the assumed name "Aaron Daniels," was transferring money to a recipient named "Theresa Ausmer," who was Allen's sister. The court denied the State's motion to admit the Western Union records, finding that a "mini-trial" regarding those documents was not proper when they were not directly tied to defendant. However, the State was allowed to question Allen about receiving money from defendant. After the State filed a certificate of impairment and a notice of appeal, the trial court released the jurors, who had not been sworn.

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No. 2--04--0100 With respect to the money transfers, defendant was arraigned on multiple charges of bribery, unlawful communication with a witness, and obstruction of justice, on March 31, 2003. On May 28, 2003, the State advised the court that it had withdrawn the interlocutory appeal and that it wished to proceed with the home invasion and aggravated domestic battery charges before the witness-tampering charges. On October 21, 2003, the State again sought to admit evidence of the Western Union wire transfers. Defendant filed a motion to clarify the trial court's March 2003 ruling denying the State's motion to introduce such evidence. The State filed a response and the court heard arguments on November 11, 2003. According to the State, Allen moved to Georgia after the home invasion and aggravated domestic battery offenses, and defendant wired her various amounts of money. The State argued that it was now able to tie defendant to the wire transfers based on the testimony of Danielle Hubbard, an eyewitness, and Joy Baker, defendant's former girlfriend. Specifically, Hubbard testified before the grand jury that defendant gave her $500 to encourage her to hide and to avoid testifying at his trial. According to the State, defendant, under the assumed name of Melvin Lewis, also planned to wire transfer another $500 to Hubbard around midnight on January 10, 2003. Defendant was arrested before wiring the additional $500, although Western Union forms listing Melvin Lewis as the sender were found in his possession. In addition, Baker testified before the grand jury that defendant had a stack of blank Western Union forms listing Aaron Daniels as the sender. Approximately 12 times, defendant gave Baker cash to wire to Allen, who was in Atlanta, although Ausmer was listed as the recipient on the forms. Allen received several thousand dollars from defendant during the period that his trial was

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No. 2--04--0100 continued. Defendant continued to assert that the documents were not sufficiently tied to him. The court found that this testimony could tie defendant to the Western Union documents, rendering them admissible to show defendant's consciousness of guilt. B. Trial Testimony Trial commenced on November 17, 2003. Jose Nieves, a 911 operator, testified first on behalf of the State. On July 18, 2002, at 9:15 p.m., Nieves received a call from apartment 6 of 124 Drew Lane in Waukegan. He heard a woman screaming hysterically, but could not tell what she was saying. The jury was allowed to hear a tape recording of the conversation. Waukegan police officer John Fong testified as follows. On July 18, 2002, he was the first officer to arrive at apartment 6 of 124 Drew Lane. Officer Fong knocked on the door and stated "Waukegan Police," but no one answered. A short time later, Officers Hall and Schultes and Sergeant Mullen arrived. Officer Fong then went outside and climbed onto the rear balcony to look into the apartment. He knocked on the patio door and saw an inside light go out. Officer Schultes was on the ground level facing the balcony while the other officers remained at the apartment door. There were no officers on the east side of the apartment building. After about 15 minutes, Allen opened the patio door. Officer Fong rushed into the apartment and opened the front door for the other officers. Inside, he saw a young boy and an infant, and he noticed that Allen was "crying," "trembling," and "visibly shaken up." In addition, there was blood on the bridge of her nose, and her left eye was swollen shut. Officer Fong sat on the couch with Allen, who was "rocking a little bit" and clutching her infant. She said she had been punched. In a side-bar conference, defense counsel

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No. 2--04--0100 made a hearsay objection to the testimony of Officer Fong's conversation with Allen, but the trial court found her statements admissible under the excited utterance exception. Allen told Officer Fong that defendant, the father of her children, had forced his way into her apartment and punched her in the face. Officer Fong did not recall seeing anyone run from the apartment building, nor did he recall seeing any damage to Allen's apartment door or the interior of her apartment. Officer Montague Hall testified as follows. He reported to the scene of the domestic disturbance to cover other officers. For approximately 15 minutes, he and Sergeant Mullen waited outside Allen's apartment door while Officer Fong climbed onto the balcony. Officer Schultes was positioned on the ground by the balcony. None of the four officers

investigating the incident were on the east or south side of the building. When Officer Fong opened the apartment door, Officer Hall and Sergeant Mullen searched the apartment and found Allen and her two children. Allen's young boy was excited, walking back and forth from the hallway to the living room. Detective Hall noticed that the window in the master bedroom was open and had no screen. The window, which was 4 feet by 3 feet, was on the east side of the building and about 8 to 10 feet above the ground. Detective Hall did not see any signs of forced entry or damage to the apartment. Sergeant Anthony John Joseph testified as follows. He was assigned to investigate the incident that occurred on July 18, 2002. During the investigation, he learned that defendant lived at 1984 Eagle Ridge Drive in Waukegan. Defendant's residence was 18 blocks from Allen's apartment, approximately a 10-minute drive. Four days after the incident, Sergeant Joseph met with Allen and saw that her face was injured. Allen had two black eyes, her left eye was swollen shut, and she had a cut on the bridge of her nose.

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No. 2--04--0100 Sergeant Joseph attempted to find witnesses in October 2002. He located an individual named Danielle Hubbard but was unable to find Allen. Eventually, he located Allen in an Atlanta suburb in February 2003. Allen testified as follows. Allen, age 24, had two children with defendant: a boy (Taige), age four, and a girl (Tamaria), age two. In July 2002, she lived in apartment 6 at 124 Drew Lane in Waukegan. Her neighbor, Hubbard, lived in another apartment building across the street. On July 18, 2002, Hubbard was at Allen's apartment and they were all watching movies in Allen's bedroom. Allen denied that she heard the main-door buzzer ring in her apartment around 9 p.m. that night. Allen was impeached by her July 24, 2002, grand jury testimony, where she testified that the buzzer rang around 9 p.m. According to Allen's grand jury testimony, Taige went downstairs to the building entrance after hearing the buzzer and came up with defendant, whom Allen saw standing outside the apartment door. Contrary to her grand jury testimony, at trial Allen denied that Taige left the apartment or came up the stairs with defendant. A side-bar conference was held, and over defense counsel's objection, the court allowed the State to treat Allen as a hostile witness. On July 24, 2002, which was six days after the incident, Allen testified before the grand jury as follows. On July 18, defendant tried to force open the door, while she was on the other side pushing the door closed. Allen told defendant not to come in "tripping" and acting crazy. She tried to keep the door closed, but defendant kept pushing on it until it eventually opened. Defendant told her to let him in and get away from the door, so she stepped back. Allen told defendant to leave and that she had company, meaning that Hubbard was still in her bedroom. Defendant refused to leave and searched the

apartment. In the bedroom, defendant told Hubbard to leave because he was going to

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No. 2--04--0100 "beat [Allen's] ass." Defendant was angry and his voice was raised. Allen then called 911, which made defendant angry and he punched her in the face with his fist. The force of the blow knocked her to the ground. Defendant was still in her apartment when the police arrived, and he told her not to open the door. Defendant told Allen that he was sorry and that he was going "to run." Defendant jumped out the bedroom window, and then Allen let the officers in through the sliding door to the balcony. Later, an ambulance took Allen to the hospital, where she told the triage nurse that her boyfriend had hit her. At trial, Allen testified that her grand jury testimony on July 24 was incorrect. According to Allen, defendant was not at her apartment on July 18 and did not try to force his way in through the door. Although someone struck Allen and injured her face, she did not know who was responsible. Pictures of her injuries that were taken at the hospital were admitted into evidence. After the incident, Allen took her children to Georgia and stayed with her sister, Ausmer. Although Allen testified that she did not maintain contact with defendant while in Georgia, she was again impeached with her February 5, 2003, grand jury testimony. At that time, Allen testified that defendant sent her money under the "made-up" name of Aaron Daniels. Contrary to her February 5 testimony, at trial Allen claimed that Aaron Daniels was the name of Ausmer's fianc

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