People v. Connolly

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People v. Connolly

State: Illinois

Court: 3rd District Appellate

Docket No: 3-08-1027 Rel

Case Date: 01/04/2011

Preview: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 OF ILLINOIS, ) Appeal from the Circuit Court ) 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 The defendant appealed,

defendant to 364 days' imprisonment.

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. police. Perritano returned to her home and telephoned the 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 2

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 The deputy did

put the child down in the middle of the street. not recall seeing injuries on Melissa.

He then spoke to Muehlbauer

Perritano and the driver of the car that stopped.

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 Melissa

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

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. in the street. He denied putting the child

He testified that he had an argument with He heard

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

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.

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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

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reliability unless an exception applies. Ill. 2d 411 (2002).

People v. Tenney, 205

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 See Thompson v. Trevanion, (1693) Skin.

common law of evidence.

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

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