People v. Camacho

Decision Date28 September 2018
Docket NumberNo. 2-16-0350,2-16-0350
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Luis A. CAMACHO, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

2018 IL App (2d) 160350
118 N.E.3d 542
427 Ill.Dec.
341

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Luis A. CAMACHO, Defendant-Appellant.

No. 2-16-0350

Appellate Court of Illinois, Second District.

Opinion Filed September 28, 2018


James E. Chadd, Thomas A. Lilien, and James E. Leven, of State Appellate Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino, David J. Robinson, and Mary Beth Burns, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE ZENOFF delivered the judgment of the court, with opinion.

427 Ill.Dec. 345

¶ 1 Following a jury trial in the circuit court of Kane County, defendant, Luis A. Camacho, was convicted of domestic battery based on insulting or provoking physical contact ( 720 ILCS 5/12-3.2(a)(2) (West 2014) ). Defendant raises three issues in his direct appeal. The first is whether the State proved all elements of the crime beyond a reasonable doubt, when none of its witnesses were present during the alleged incident and defendant testified to an alternate version of events. The second is whether the trial court erred in admitting the recording of a 911 telephone call, when the State did not present a witness who could identify the caller's voice. Thirdly, defendant contends that comments by the prosecutor during closing argument constitute plain error that excuses defendant's forfeiture of the issue and warrants reversal. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On March 13, 2014, defendant was charged in a three-count complaint with domestic battery based on bodily harm ( 720 ILCS 5/12-3.2(a)(1) (West 2014) ), domestic battery based on insulting or provoking physical contact, and possession of a firearm without a valid FOID card ( 430 ILCS 65/2(a)(1) (West 2014) ). These charges stemmed from an Elgin police investigation in response to a 911 complaint of domestic violence. A jury found defendant not guilty of domestic battery based on bodily harm but guilty of domestic battery based on insulting or provoking physical contact. Before trial, the State nol-prossed the charge of possession of a firearm without a valid FOID card.

¶ 4 In a pretrial motion in limine , defendant sought to exclude the recording of the 911 call, arguing that none of the State's witnesses would be able to meet the foundational requirement of personally identifying the caller's voice. The State countered that it could prove the identity of the caller through circumstantial evidence. The trial court reserved ruling until trial. At trial, outside the presence of the jury, the court listened to the recording and heard the testimony of the responding officers, Bryan Powell and John Mellinger. The trial court denied defendant's motion to exclude the recording.

¶ 5 The trial took place on October 27, 2015. Mary Wanic, a 911 operator for the City of Elgin, testified that she answers 911 calls as part of her duties. On March 13, 2014, at approximately 12:39 a.m., she answered a 911 call from a person who said that her name was Mirella Camacho. Wanic identified a CD presented by the State and said that it contained a recording of the call in question. Wanic testified that she had listened to a recording of the call earlier that day and that the recording

427 Ill.Dec. 346
118 N.E.3d 547

on the CD was a fair and accurate depiction of the call. The court admitted the CD into evidence over defendant's objection for insufficient foundation. It was then played for the jury.

¶ 6 On the recording, the caller identified herself as Mirella Camacho. She said that her husband was upset and had grabbed her by her neck, and she requested police assistance. In response to questions by Wanic, the caller identified her husband as defendant, gave his date of birth, and described what he was wearing. She further stated that he had just returned home from work and that she did not think he had been using drugs or alcohol. At one point, the caller became upset. Wanic asked if the caller's husband was present, and the caller responded that he was right in front of her. She said, "He's asking to hang up the phone—that he would leave." Wanic kept the caller on the phone until the police arrived at the scene.

¶ 7 Officer Powell testified that on March 13, 2014, at approximately 12:38 a.m., he received a dispatch for a domestic-battery call. He arrived "a few minutes" later at the dispatched location, which was the residence of defendant and his wife, Mirella. An adult female, who identified herself as Mirella Camacho, let him into the apartment, where he also observed defendant, a teenage boy, and an infant child. Officer Powell described Mirella as distraught and quiet. He did not observe any injuries on Mirella.

¶ 8 Officer Powell testified that he interviewed defendant in the foyer immediately outside of the apartment. Officer Mellinger was also present during the interview. Officer Powell testified that defendant admitted that he "pulled [Mirella] up by her arm off the couch" and placed his hands around her neck in a choking fashion while pushing her against a wall. Officer Powell added that defendant held out his arm and demonstrated how he wrapped his hand around Mirella's neck. Officer Powell testified that he saw no signs of recent drug or alcohol use by defendant.

¶ 9 Officer Mellinger testified similarly. He stated that he entered the apartment with Officer Powell and observed defendant, Mirella, and two children. He described Mirella's manner as calm. Officer Mellinger recalled that defendant stated that he became angry with Mirella and that he choked her; as he described the incident, he extended his hand and made a "gripping" motion. Officer Mellinger testified that defendant displayed no signs of drug or alcohol impairment.

¶ 10 Defendant moved for a directed verdict at the conclusion of the State's case-in-chief, which the trial court denied.

¶ 11 Defendant testified on his own behalf. On March 13, 2014, he had an argument with Mirella. The argument started while he was at work and continued when he returned home, at around 12:20 a.m. According to defendant, Mirella was on the sofa and she raised her voice at him from the moment he entered the apartment. Defendant testified that he continued walking through the apartment toward the back door, intending to leave. However, Mirella said something that caused him to turn around and walk back into the living room area. As he and Mirella continued to argue, she began to get up from the sofa. Defendant testified that he helped her up, explaining that she was still recovering from recent surgery.

¶ 12 Defendant testified that he again started toward the back door, intending to leave the apartment. Mirella followed him, still arguing. When he opened the back door, she grabbed him by his right arm. As a "quick reaction" to Mirella grabbing his arm, he turned and put his free arm on

427 Ill.Dec. 347
118 N.E.3d 548

her chest and "put her against the wall to continue to work my way out." He testified that he never intentionally put his hand around her neck, that he never squeezed her neck, and that he never tried to constrict her ability to breathe.

¶ 13 During cross-examination, defendant was asked if it was Mirella's voice on the 911 recording. Over objection, he answered that it was her voice. He admitted that he was standing near Mirella while she was on the phone with the 911 operator. He denied ever telling Mirella to hang up the phone. He stated that the police officers arrived at the apartment eight minutes after Mirella called 911. Defendant denied telling the officers that he grabbed Mirella by the arm, pulled her off the sofa, and held her against the wall with his hands on her throat. Defendant presented no other witnesses.

¶ 14 During his closing argument, the prosecutor urged the jury to consider the credibility of the witnesses. He argued that the police officers were just doing their job and had no reason to lie. As to defendant, however, the prosecutor suggested that his personal stake in the outcome of the case gave him a motive to lie.

¶ 15 The prosecutor argued that the jury did not need to hear from Mirella in person to reach a guilty verdict. He reminded the jurors that this was a domestic-violence case and that they should use their common sense as to why Mirella did not appear in court. He argued that, regardless of why she did not testify, Mirella still reached out for help, and they heard her story through the recording of the 911 call.

¶ 16 During her closing argument, defense counsel reminded the jury that defendant was the only eyewitness to testify and questioned why Mirella and the children did not appear to tell their stories. The prosecutor answered in his rebuttal closing argument that a reason the jury should care about this case was that the children were there to observe this incident. He repeated that the jury had heard what happened through the recording of the 911 call.

¶ 17 The jury found defendant guilty of domestic battery based on insulting or provoking physical contact and not guilty of domestic battery based on bodily harm....

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2 cases
  • People v. Ali
    • United States
    • United States Appellate Court of Illinois
    • 11 Marzo 2019
    ...have resulted from the error.’ (Internal quotation marks omitted.) [Citation.]" People v. Camacho , 2018 IL App (2d) 160350, ¶¶ 38-39, 427 Ill.Dec. 341, 118 N.E.3d 542. ¶ 13 We begin our plain-error review by determining whether the prosecutor's remark was reversible error. We do so with th......
  • People v. Winters
    • United States
    • United States Appellate Court of Illinois
    • 30 Septiembre 2020
    ...if there was reversible error in the first instance, as ‘[a]bsent reversible error, there can be no plain error.’ " People v. Camacho , 2018 IL App (2d) 160350, ¶ 38, 427 Ill.Dec. 341, 118 N.E.3d 542 (quoting People v. Cosby , 231 Ill. 2d 262, 273, 325 Ill.Dec. 556, 898 N.E.2d 603 (2008) ).......

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