30 June 2000

JUSTICE GARMAN delivered the opinion of the court:

An Adams County jury convicted defendant Steven R.Speed of one count of domestic battery. 720 ILCS 5/12-3.2(a)(1)(West 1996). He appeals, arguing that (1) the trial court erredin admitting into evidence the hearsay statement of the victim,D.M., where she had no recollection of the details contained inthe statement; and (2) he is entitled to a $5-per-day creditagainst his fines for each day he spent in custody for thedomestic violence offense. We affirm and remand.

Defendant was accused of causing bodily harm to D.M. bypunching her in the head with his fist. At the jury trial, heldon February 1, 1999, D.M. testified that on June 21, 1998, shelived at the Quincy Hotel. She and defendant had an "off and on"relationship. They had broken up prior to June 21, 1998. D.M.stated that she thinks defendant was at her apartment on thatdate. However, because she was intoxicated at the time, sherecalls nothing about that day, except what others have told her. D.M. testified that she gave a statement to the police. Sheadmitted writing the statement but did not recall doing so. After the prosecutor showed D.M. her written statement, sheverified that the statement was in her handwriting, with hersignature at the bottom, and that this was the statement she gaveto police on June 21, 1998. When D.M. began to read directlyfrom the statement, defense counsel objected. The prosecutorexplained that, if D.M. was unable to refresh her memory bylooking at the statement, she was entitled to read it as her pastrecollection recorded. The trial court overruled the objectionand D.M. read the statement to the jury.

In the statement, D.M. said that she and defendant hada relationship and that he moved out of her apartment six orseven months prior to June 21, 1998. Sometime during the twoweeks prior to that date, some of D.M.'s jewelry had been taken. She went with a friend to defendant's house on the night of June20, 1998, and confronted him. Defendant said he had taken thejewelry and sold it to a man in Missouri and that he would returnit to D.M. at 3 the next afternoon. She agreed. Defendantappeared the next day at her apartment and said that he did notthink he could get the jewelry back, because he had sold it. D.M. said she would call the police. Defendant called her someprofane names and poured a beer over her head. He then struckher in the left side of her face and shoved her backward over thecorner of the bed. D.M. fell to the floor. Defendant ran out ofthe room, down six flights of stairs, and out the front door ofthe hotel to his vehicle.

The prosecutor showed D.M. a photograph that shetestified depicted the left side of her face, which was swollen.

On cross-examination, D.M. testified that she had beendrinking for a couple of months prior to June 21, 1998. She didnot recall meeting defendant that day, making the statement topolice, or having her face photographed.

Rosemary Houstead testified that she was working at thehotel on June 21, 1998. She is familiar with both defendant andD.M., as they had lived together at the hotel at one time. Onthe date in question, D.M. lived at the hotel; Houstead was notcertain whether defendant still lived there. On that day,Houstead saw defendant rapidly run down the front steps, out thedoor, and down the ramp. A minute or so later, D.M. came runningdown the same steps. She approached Houstead's desk in the hotellobby. She was crying, shaking, and holding her face.

On cross-examination, Houstead testified that she sawdefendant enter the building approximately 30 or 40 minutes priorto the time he ran out of the hotel. D.M. used the hotel's housetelephone to call the police.

Quincy police officer Troy Ruppert testified that heresponded to D.M.'s call from the hotel. When he arrived at thehotel around 3:17 p.m., he went upstairs and spoke to D.M. Inside the apartment, Ruppert found a beer can and wet spots onthe carpet. He detected a strong odor of beer in the apartment. D.M. was upset, her hair was in disarray, her face was red, andthe left side of it was swollen. Ruppert could tell that D.M.had been crying, as her eyes were red. She seemed somewhatafraid. Ruppert testified that, at approximately 3:30 p.m., heand D.M. went to the police station. He identified D.M.'swritten statement as the one she gave him that day. Ruppert alsoidentified a photograph he took of the left side of D.M.'s face.

Ruppert testified that he did not believe D.M. wasintoxicated that day. He allowed D.M. to drive to the policestation, and he followed her there. At the time Ruppert spoke toD.M., she had no difficulty recalling what happened or writingher statement. Ruppert believed she was "perfectly fine"; had hebelieved otherwise, he would not have allowed her to drive to thepolice station.

Defendant testified that on June 21, 1998, he went toD.M.'s apartment to pick up his clothes. They talked for a whilein a friendly manner. Defendant asked for and received a beer. D.M. is an alcoholic and was intoxicated. Suddenly, she threatened defendant with calling the police. When she gets intoxicated, she threatens him with the police and has blackouts. Defendant became angry. He splashed beer on her and left theapartment. Defendant denied striking D.M. D.M. was angrybecause defendant had a new girlfriend. He and D.M. are backtogether now.

On cross-examination, defendant admitted that D.M.accused him of taking her jewelry and this was the reason she wasangry and threatened to call police. Defendant denied taking thejewelry and insisted that the theft accusation did not anger him. He ran because he had committed a battery by splashing beer onD.M. Following jury instructions and closing arguments, thejury retired to deliberate. Less than 45 minutes later, itreturned a verdict of guilty, on which the trial court enteredjudgment.

On March 16, 1999, the trial court sentenced defendantto 364 days in jail, ordered him to pay a $1,000 fine, andgranted him 56 days' sentence credit for time served.

On appeal, defendant first argues that the trial courterred in admitting D.M.'s written hearsay statement into evidence. We note that the determination of the admissibility ofevidence lies within the sound discretion of the trial court andthat court's decision will not be disturbed absent an abuse ofdiscretion. People v. Edwards, 309 Ill. App. 3d 447, 452, 722N.E.2d 258, 261 (1999).

Defendant contends that the statement was admitted intoevidence without either the prosecutor or the trial court specifying the grounds of admissibility. Thus, he complains that heis left to guess as to the grounds upon which the statement wasadmitted. This contention, however, is inaccurate. When defensecounsel objected to D.M. reading the statement to the jury, theprosecutor argued that the statement constituted D.M.'s pastrecollection recorded, and the trial court agreed.

The trial court here admitted the statement on thebasis of the past recollection recorded exception to the hearsayrule. A written statement or report may be admitted into evidence as the witness' past recollection recorded only if fourprerequisites are met: (1) the witness had firsthand knowledgeof the recorded event; (2) the written statement was made at ornear the time of the event and while the witness had a clear andaccurate memory of it; (3) the witness lacks present recollectionof the event; and (4) the witness can vouch for the accuracy ofthe written statement. Salcik v. Tassone, 236 Ill. App. 3d 548,554, 603 N.E.2d 793, 797 (1992).

The State argues that defendant has forfeited thisissue on appeal for failure to file a posttrial motion. Failureto include the issue in a posttrial motion results in forfeitureof the issue on appeal. People v. Hood, 244 Ill. App. 3d 728,737, 614 N.E.2d 335, 341 (1993). However, review of a forfeitedissue is available under the plain error doctrine, providedcertain requirements are met. The evidence must be closelybalanced or the alleged error must be so serious that it depriveddefendant of a fair trial. People v. Cloutier, 178 Ill. 2d 141,164, 687 N.E.2d 930, 940 (1997).

Defendant urges us to address this issue on the basisof plain error, arguing that, without D.M.'s written statement,the evidence was insufficient to prove him guilty of the offensebeyond a reasonable doubt. Because of the importance of D.M.'sstatement to the State's case, we will address defendant'sargument, despite forfeiture.

D.M.'s statement was not properly admitted into evidence as her past recollection recorded. D.M. did not vouch forthe accuracy of her written statement as of the time she made it. The first three requirements for admissibility as past recollection recorded were fulfilled: (1) D.M. had firsthand knowledgeof the events recorded in the statement; (2) the statement failedto refresh her recollection; and (3) the statement was writtenvery shortly after the incident occurred. However, D.M. did nottestify that the statement was accurate when written.

The State notes that, because D.M. testified that shedid not recall the events described in her statement, she couldnot vouch for the accuracy of the statement. The State pointsout that the observations of Houstead and Ruppert support theaccuracy of the statement. However, Houstead testified that shesaw defendant enter the hotel and leave rapidly a short timelater. A few moments after observing defendant, Houstead observed D.M. come down the stairs crying and holding her face. She saw D.M. telephone the police. Ruppert testified as to thecondition of D.M. and her apartment. He testified that D.M.wrote her statement at the police station and he photographed theleft side of her face. Since he had no firsthand knowledge ofwhat took place in D.M.'s apartment, he was not in a position toverify the accuracy of the statement. Likewise, Houstead did notsee any of the events D.M. described in her statement.

We conclude, however, that D.M.'s written statement wasproperly admitted into evidence as a prior inconsistent statement. Section 115-10.1 of the Code of Criminal Procedure of1963 (Code) (725 ILCS 5/115-10.1 (West 1998)) governs admissibility of prior inconsistent statements. That section permits anexception to the hearsay rule if (1) the statement is inconsistent with the witness' testimony at trial; and (2) the witness issubject to cross-examination concerning the statement, and thestatement (a) was made under oath at a trial, hearing, or otherproceeding, or (b) narrates, describes, or explains an event ofwhich the witness had personal knowledge, and (i) the statementis proved to have been written or signed by the witness, or (ii)the witness acknowledged under oath the making of the statementeither in her testimony at the hearing or trial at which admission of the statement is sought, or at a trial, hearing, or otherproceeding, or (iii) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or anyother similar electronic means of sound recording. 725 ILCS5/115-10.1 (West 1998).

Defense counsel cross-examined D.M. as to her statementand lack of recollection thereof. The statement describes anevent of which D.M. had personal knowledge at the time she madethe statement. The question of personal knowledge is to bedetermined from the face of the statement and not from thewitness' subsequent testimony. People v. Fauber, 266 Ill. App.3d 381, 390, 640 N.E.2d 689, 695 (1994). Here, defendant makesno claim that D.M. based her statement on hearsay. The Stateestablished that D.M. wrote the statement and signed it. Infact, D.M. acknowledged these facts in her testimony. The onlyquestion remaining is whether D.M.'s testimony was inconsistentwith her prior written statement. Defendant argues that D.M.'stestimony was not inconsistent with her statement, because shedid not testify to any details that differed from those containedin her statement; rather, she testified that she had no memory ofthe event or of writing the statement.

In People v. Flores, 128 Ill. 2d 66, 538 N.E.2d 481(1989), defendant was convicted of armed robbery and murder. Awitness, Ramos, who testified against defendant had previouslytestified before the grand jury. At trial, Ramos testified thathe could not recall having a conversation with defendant concerning the death of the victim. He recalled testifying before thegrand jury, but stated that he could not recall the substance ofhis testimony. When shown a transcript of his grand jury testimony, Ramos acknowledged that it contained an accurate description of his testimony. In further questioning, Ramos acknowledged that hetestified before the grand jury that defendant told him thatdefendant had shot the victim. Flores, 128 Ill. 2d at 78-79, 538N.E.2d at 484-85. The grand jury testimony was admitted intoevidence as a prior inconsistent statement. Defendant wassentenced to death. Flores, 128 Ill. 2d at 79-80, 538 N.E.2d at484-85. On appeal to the Supreme Court of Illinois, defendantargued that Ramos' testimony at trial was not inconsistent withhis grand jury testimony, because he simply stated he could notrecall the substance of his grand jury testimony. The courtrejected this argument, stating that a witness' prior testimonydoes not have to directly contradict testimony given at trial tobe considered "inconsistent" within the meaning of that term insection 115-10.1 of the Code. "'[W]here a witness now claims tobe unable to recollect a matter, a former affirmation of itshould be admitted [into evidence] ***.'" Flores, 128 Ill. 2d at87, 538 N.E.2d at 488, quoting 3A J. Wigmore, Evidence