People Of The State Of Ill. v. Abernathy

• Decision Date: 28 July 2010
• Docket Number: No. 4-09-0180.,4-09-0180.
• Citation: 341 Ill.Dec. 737,402 Ill.App.3d 736,931 N.E.2d 345
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jason A. ABERNATHY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 736

931 N.E.2d 345

341 Ill.Dec. 737

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Jason A. ABERNATHY, Defendant-Appellant.

No. 4-09-0180.

Appellate Court of Illinois,Fourth District.

June 28, 2010.

Rehearing Denied July 28, 2010.

Michael J. Pelletier, Gary R. Peterson, and Stuart H. Shiffman, all of State Appellate Defender's Office, of Springfield, for appellant.

C. Steve Ferguson, State's Attorney, of Charleston (Patrick Delfino, Robert J. Biderman, and Linda Susan McClain, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Justice APPLETON delivered the opinion of the court:

In October 2007, the State charged defendant, Jason A. Abernathy, with aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2006)). After a December 2008 trial, a jury found him guilty as charged. In March 2009, the trial court sentenced defendant to 20 years in prison. Defendant appeals, claiming he is entitled to a new trial because of the admission of prejudicial other-crimes evidence or, alternatively, due to the lack of a contemporaneous limiting instruction. We affirm.

I. BACKGROUND

On October 24, 2007, the State charged defendant with aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2006)), alleging he knowingly caused great bodily harm to Gina Giberson by striking her in the head and causing her to lapse into a coma. This alleged battery occurred in the early morning hours, between 4 and 5 a.m., on October 16, 2007, at their shared residence. At approximately the same time, neighbors reported smelling smoke in the area. The fire department responded to a house fire at this same residence at approximately 6 a.m. After investigating the scene, fire officials determined the cause of the fire was arson. (We note that in defendant's brief, he refers to a second fire that occurred less than 24 hours after the first fire, with the second fire reportedly destroying the home. For this fact, defendant cited to the assertions in his motion in limine discussed below. However, the evidence presented at trial made no reference to a second fire.)

Defendant filed a motion in limine to prevent at trial the admission of any evidence relating to the fire. He claimed, because he had not been charged with any criminal conduct relating to the fire, any evidence regarding the fire was irrelevant and inadmissible. Specifically, he claimed the prejudicial effect of the admission of any fire-related evidence far outweighed the probative value.

The State argued that it needed to present evidence of the fire in order to advance its theory that defendant started the fire with the intent to destroy evidence of the charged offense. Initially, the trial court denied defendant's motion but admonished the State that it should be prepared to present evidence linking defendant, or someone acting on his behalf, to setting the fires in an attempt to destroy the evidence. The State assured the court that it would indeed be able to connect defendant to the fires, “specifically with regard to timing and sequence of events.” The court directed the following comment to defendant's counsel: “If you want to bring it back up to me before that evidence is presented, or if the State doesn't bring connecting evidence that shows to me there's [a] connection between these allegations, then I'll hear that.” Later, the court changed its ruling and directed this comment to the prosecutor: “So I guess what we can do is this: Be prepared, Mr. Ferguson [State's Attorney], on the date I'm continuing these other motions, I will continue this motion further to hear what the State intends to proffer regarding the use of testimony relating to fire or fires. Be prepared to tell me that. All right?”

At the next pretrial hearing, the trial court indicated that, at the last hearing, it had already denied defendant's motion in limine relating to the admission of evidence of the fire. The court stated: “I've denied it. I'll allow you [defense attorney] to renew it if you think there's a question of relevance, and that's basically the question argued that I was saying is whether or not there is some relevance to that evidence coming in.” Neither party objected to the court's disposition.

After receiving additional discovery from the State, defendant filed a subsequent motion in limine to bar reference to the fire. During the State's argument in response to defendant's motion, the prosecutor stated: “The fact that there is-that he is not charged with arson isn't the, I guess, the lynchpin of being able to argue that evidence was destroyed, and that he had the motive, desire, the time, and the opportunity to do so.” The trial court admonished the prosecutor as follows: “If you think you can tie it up, I am not going to handcuff you and not allow you to present that evidence as part of the case that is before the [c]ourt.” The court asked the prosecutor to identify the substance of the connecting evidence. In response, the prosecutor provided the following explanation:

“Your Honor, we have-as the [c]ourt has indicated, we have the disturbance, the assault, or the self[-]defense if you want to call it, early in the morning of October 16.

He takes her out to the hospital, taking hours to get there. Purportedly running out of gas and calling his brother to bring gas.

We have a fire at the house in which an accelerant is found.

I am probably leaving something out, but that is-there is that connection. It gives-there is the-from our standpoint, the time, the opportunity, and the motive to destroy that house or destroy evidence that he believes may be in that house.”

The court denied defendant's motion. Defendant announced he would be asserting self-defense as an affirmative defense.

Defendant's jury trial began on December 8, 2008, and continued for five days. Prior to the start of the trial, defendant again raised the issue of the admissibility of evidence relating to the fire, arguing it should be barred. The prosecutor stated: “I don't plan on making a big thing. Obviously, we will be bringing out that the accelerants were found.” The trial court confirmed its previous ruling and determined that it would allow the State to introduce any relevant evidence that would advance its theory of the case. Defendant indicated, for the record, he was making a continuing objection to any reference to the fire.

The trial testimony in this case was extensive. Because defendant does not challenge the sufficiency of the evidence, we will summarize only that which is relevant to the issue presented in this appeal. The victim, Gina Giberson, testified that she had no recollection of the assault. She only remembered waking in the hospital with breathing and feeding tubes and being advised by the medical personnel that she required therapy to learn to walk again. She testified to two past incidents of domestic violence between her and defendant, both occurring a few months prior to the incident at issue. In the first incident, she was seated in a chair when defendant picked up the chair and slammed her into the wall. In the second incident, she had jumped from a moving truck after defendant had threatened to kill her.

According to Giberson, immediately prior to the October 2007 incident, she had found methamphetamine in her car and assumed it was defendant's. She confronted defendant with her findings and demanded he move out of the residence. Because defendant had told investigators that Giberson was injured when she hit her head on a marble table, the prosecutor asked Giberson if she owned such tables. Giberson acknowledged that she did, but said the tables were kept either in the garage or in the basement, not in the living area of the home.

Coles County Deputy David Lewis testified that he had interviewed defendant at the hospital at approximately 7:40 a.m. on the day of the incident and defendant relayed his version of the domestic altercation. Defendant told Lewis that, as he approached the home, he saw a man running out the back door. When defendant went inside, Giberson began swinging a bat at him, hitting him in the hand. Defendant hit Giberson in the jaw, and she fell, hitting her head on a marble table. Lewis noted that defendant had cuts or marks on his left knuckle. Defendant further explained to Lewis that he had picked up Giberson and carried her to the car. However, he did not mention that he had dropped her in the process. He said he proceeded to the hospital but ran out of gasoline on the way. He called his brother, Marvin Abernathy, who delivered gasoline to him. Defendant told Lewis that Giberson's back may have been bruised during the transport, as she was wedged between the seats of the vehicle.

Jeff Craig, Giberson's neighbor and a close friend of defendant's, testified that defendant had told him the night before the incident that Giberson had asked defendant to move out and he “ ‘was tired of being kicked out.’ ” Craig also testified that his black baseball bat that was hanging near his workbench when he went to sleep on October 15, 2007, was missing the next day.

David Craig, a Charleston police officer, testified that he was dispatched to the house fire at 7 a.m. and then to the hospital to investigate the domestic-violence incident. He spoke with defendant, who told him about seeing a man leaving the home and Giberson swinging the bat at defendant when he came in. Defendant told Craig that he possibly had “hit her too hard.” He thought he had killed her. Craig also noted that defendant's hand was red and swollen.

Kris Phipps, Charleston fire chief, testified that he received the report of the fire at approximately 6 a.m. The fire was under control in less than two hours. Phipps noticed “some red flags” and, therefore, requested the assistance of the Illinois State Fire Marshal's office. By 6:30 p.m., the fire investigation was complete. The investigators had noticed that an area just inside the...