People v. Kinnerson

• Decision Date: 14 May 2020
• Docket Number: NO. 4-17-0650,4-17-0650
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roger L. KINNERSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (4th) 170650

170 N.E.3d 142

446 Ill.Dec. 316

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

v.Roger L. KINNERSON, Defendant-Appellant.

NO. 4-17-0650

Appellate Court of Illinois, Fourth District.

Filed May 14, 2020

James E. Chadd, John M. McCarthy, and Susan M. Wilham, of State Appellate Defender's Office, of Springfield, for appellant.

Don Knapp, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Linda S. McClain, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Following a jury trial, defendant, Roger L. Kinnerson, was found guilty of aggravated domestic battery ( 720 ILCS 5/12-3.3(a) (West 2014)) and sentenced to 25 years in prison. He appeals, arguing (1) the trial court improperly admitted statements made by the victim during a 911 call under the excited utterance exception to the hearsay rule, (2) the court erred by allowing medical personnel to testify to the victim's identification of defendant as her attacker, (3) the court violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) when questioning the jury venire, and (4) the State's evidence was insufficient to prove that the victim sustained great bodily harm. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In August 2015, defendant was indicted on one count of home invasion ( 720 ILCS 5/19-6(a)(2) (West 2014)), two counts of aggravated domestic battery (id. § 12-3.3(a), (a-5)), one count of committing a hate crime (id. § 12-7.1(a)), and one count of residential burglary (id. § 19-3(a)). The charges were based, in part, on allegations that defendant attacked his mother, Patricia Karr, in her home, strangling her and causing her great bodily harm. Ultimately, the State elected to proceed only on the two aggravated domestic battery charges. On its motion, the remaining charges were dismissed.

¶ 4 Prior to trial, the State represented to the trial court that it had been unable to locate Karr. In April 2016, it filed a motion in limine asking the court to allow it to introduce a 911 call that Karr made into evidence. It asserted the call was made shortly after the alleged incident and was admissible under the "excited utterance" exception to the hearsay rule. The State also attached a transcript of the call to its filing. The transcript showed Karr called 911 and reported that she was badly beaten. She identified herself by name and named defendant as her attacker. Defendant objected to the admission of the 911 call, and the court reserved ruling on the State's motion.

¶ 5 Also in April 2016, defendant's jury trial was conducted. During voir dire , the trial court instructed the potential jurors regarding "general propositions of law." Specifically, it stated as follows:

"First of all, the defendant in this case * * * is presumed to be innocent of each of the charges that have been brought against him. This presumption of innocence remains with the defendant throughout every stage of the trial and during the jury's deliberations on the verdict. Before any defendant can be convicted, the State must prove the defendant guilty beyond a reasonable doubt.

The State has this burden of proving the guilt beyond a reasonable doubt, and the burden remains on the State throughout the entire case. The defendant is not required to offer any evidence whatsoever during the trial or to prove his innocence.

If the defendant should choose not to testify during the trial, the defendant's choice not to testify cannot be held against him in any way in arriving at your verdict."

The court then questioned the potential jurors "row by row," in groups of six or eight, asking "do each of you * * * understand and accept these basic propositions of law." For each row, the court noted that it received "all affirmative responses and no hands raised."

¶ 6 At trial, the State presented evidence that Karr was attacked and injured in her home during the early morning hours of August 7, 2015. Jeff Ackerson testified that in August 2015, he was Karr's neighbor. The two resided in the same "rooming house," which Ackerson described as "a house of bedrooms * * * with shared common areas." As Karr's neighbor, Ackerson was familiar with some of Karr's relatives, including defendant, whom he identified as Karr's son. Ackerson asserted he had seen defendant "a dozen or so" times.

¶ 7 Ackerson testified that on the night of the incident at issue, between midnight and 1 a.m. but "closer to one," he answered a knock at the rooming house's back door. He stated defendant was at the door and expressed that he needed "to talk to [his] mom." Defendant entered the house and went to Karr's room. Ackerson testified he returned to his own room. He put on noise-cancelling headphones and played a computer game. Ackerson did not see defendant again that night and did not see Karr until "a couple of days later."

¶ 8 Lindsay Schumm testified she was an emergency dispatcher in Bloomington, Illinois. Her job duties included "answer[ing] incoming phone calls and nonemergency calls" and dispatching "fire, police[,] and [emergency medical services (EMS)] to the calls." On August 7, 2015, at approximately 1 a.m., she was working and received a 911 call from someone who was "distraught." The caller's "voice was shaking" and she "sounded terrified and upset." According to Schumm, the caller seemed to have "difficulty breathing and even communicating." She dispatched the police and EMS to the caller's location.

¶ 9 Schumm testified the 911 call was recorded and identified a copy of the recording. She had listened to the recording and was able to identify her own voice. She stated the recording fairly and accurately depicted her conversation with the 911 caller.

¶ 10 Bloomington police officer James Clesson testified he was dispatched to the rooming house shortly after 1 a.m. on August 7, 2015. He made contact and conversed with Karr, whom he described as approximately five feet tall and 120 to 130 pounds. Clesson observed that Karr had facial injuries and bruising on her arm. He took photographs of Karr's injuries, which were admitted into evidence. While speaking with Karr, Clesson observed that she was "[g]asping for breath, having a hard time communicating words, crying and upset, making hard swallowing noises[,] and choking as she tried to talk." He stated Karr's words were "strained" and her "voice was very raspy." She appeared to be "having some amount of pain or discomfort" when she tried to speak. Clesson further testified that he had an opportunity to listen to the recording of the 911 call. He recognized Karr's voice on the recording based on the "numerous opportunities" he had to speak with her "[d]uring [his] investigation of the call."

¶ 11 Clesson testified that Karr was taken to the hospital. He met with Karr in the emergency room and took additional photographs of her injuries and obtained an audio statement from her. The hospital photographs Clesson took were also admitted into evidence.

¶ 12 During Clesson's testimony, the State moved for admission of the recording of the 911 call, and defendant objected on the bases that it contained hearsay, the State had not laid a proper foundation, and because he had a "right to confrontation."

The trial court admitted the 911 call recording over defendant's objection, stating as follows:

"I think it is an excited utterance. I think there is some evidence of a very short time frame of all the testimony I heard. I don't think it's a confrontation clause issue because it is an ongoing emergency where she's describing the events that had just occurred to her, so I don't think it's testimonial or I don't think there is a Crawford [(see Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) )] issue. So[,] I'm going to allow it."

¶ 13 The record shows the recording of the 911 call was played for the jury. The jury was also given a transcript of the call. The recording showed Schumm answered the 911 call and asked the address of the emergency. Karr responded with her address and then immediately stated that her "son beat [her] up so bad." She identified defendant as her son and provided her own name. Karr asserted that her son weighed 300 pounds and "he just beat the f*** out of [her]." She reported that she had urinated on herself and suffered a busted lip and two black eyes. Karr also told Schumm that after her son "got done," she went and knocked on the door of her upstairs neighbor but "he wouldn't answer."

¶ 14 The State next presented the testimony of married couple Charles and Claire Casagrande. Charles worked as a firefighter paramedic, and Claire was an emergency room nurse. Both were involved in treating Karr following the August 2015 incident.

¶ 15 Charles testified that during the early morning hours of August 7, 2015, he was dispatched to the address of the rooming house. He waited for the police to secure the scene and then met with "the police officers and the patient on scene within her residence." He identified Karr as "the patient" and stated she had a "very swollen face." Karr's "right eye was completely swollen shut," and her "left eye was about three quarters of the way swollen shut." Charles noticed "some deformity, angulation sort of stuff on her nose," as well as "some blood in her mouth and areas of redness about her face."

¶ 16 Charles testified that his goal when performing his paramedic duties was "[t]o treat the patient to the best of [his] ability * * * with the information that's provided to [him]." To determine the appropriate course of treatment, he needed information from the patient regarding "what had happened * * *, basically why [paramedics] were called to the scene." Charles testified he had a conversation with Karr about why paramedics were called for her. Over defendant's objection, Charles was permitted to testify that Karr reported being injured after "an individual was on top of her, punching...