People v. Oehrke

• Decision Date: 05 December 2006
• Docket Number: No. 1-05-1433.,1-05-1433.
• Citation: 860 N.E.2d 416,307 Ill.Dec. 762
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David OEHRKE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

860 N.E.2d 416

307 Ill.Dec. 762

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David OEHRKE, Defendant-Appellant.

No. 1-05-1433.

Appellate Court of Illinois, First District, Second Division.

December 5, 2006.

Michael J. Pelletier, Deputy Defender, and Peter Sgro, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (James E. Fitzgerald, Veronica Calderon Malavia, Susan R. Schierl Sullivan, Eve Reilly, of counsel), for Appellee.

Presiding Justice WOLFSON delivered the opinion of the court:

Frieda Oehrke, the defendant's 91-year-old mother, was brought to the emergency room at Resurrection Hospital, where she told a doctor and a nurse she did not know why her son kept hitting her. The issue in this case is whether Frieda's statements in the emergency room were admissible at the defendant's trial. Because we find the statements were inadmissible hearsay we reverse the defendant's aggravated battery conviction and remand this cause for a new trial.

FACTS

On June 24, 2000, Frieda was taken by paramedics to the emergency room at Resurrection Hospital. She had a one inch bleeding wound on the top of her head, old bruising on the right side of her face, and multiple areas of bruising on her body in various stages of healing. Defendant lived with Frieda and was her sole caregiver. On August 24, 2000, Frieda died of unrelated causes.

Prior to trial, the State filed a motion, pursuant to section 115-10.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.3 (West 2000)), to admit Frieda's out-of-court statements through her treating doctor and nurse, two police officers, and an elder abuse investigator. Section 115-10.3 provides for the admission of certain hearsay statements made by an elder adult in a prosecution for elder abuse if the court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. 725 ILCS 5/115-10.3 (West 2000).

Following a hearing on the motion, the trial court determined the testimony of Dr. Rachael Burke, Nurse William Babiarz, Officer Paul Zitek, and Detective Terrance Hart was trustworthy and reliable, and would be allowed as an exception to the hearsay rule under section 115-10.3. Before trial, however, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1366, 158 L.Ed.2d 177, 194-95 (2004), which held the confrontation clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination."

Because of Crawford, the State withdrew its motion to admit the evidence under section 115-10.3. Instead, it offered only the statements Frieda made to Dr. Rachel Burke, an emergency room physician, and Nurse William Babiarz, relying entirely on the common law hearsay exception that addresses statements made for the purpose of obtaining medical diagnosis or treatment. The trial court, over defense counsel's hearsay objections, admitted the statements, holding the common law hearsay exception was satisfied.

Dr. Burke and Nurse Babiarz testified they were the first hospital personnel to treat Frieda at about 10:30 p.m. on June 24. When Nurse Babiarz and Dr. Burke initially asked Frieda what happened, she did not respond and moaned in pain. Defendant was present in the treatment room. Frieda was disoriented and did not know the date. On cross-examination, Nurse Babiarz said Frieda told him "she didn't know what happened" when he first questioned her.

Frieda had a large laceration on the top of her head and a large bruise with a small laceration on her right eyebrow. Frieda also had bruises on her left upper lip, on top of both of her shoulders, and above both of her kneecaps. The numerous areas of bruising and the appearance of the lacerations led Dr. Burke and Nurse Babiarz to believe the injuries did not occur at the same time. Dr. Burke noted if a person fell to her knees, it would not cause the type of bruising Frieda had above her kneecaps. Dr. Burke also noted she would not expect a person to sustain bruises on the top of her shoulders during a fall.

After Frieda was given medication to raise her blood sugar and became more alert and cooperative, she told Nurse Babiarz "she didn't understand why she [sic] was trying to shut me up, hitting me with his hand." This happened shortly after midnight. Nurse Babiarz then notified Dr. Burke and the police. Defendant was not in the treatment room when Frieda made the statement. When Dr. Burke and Nurse Babiarz went back into the treatment room, Frieda again said she did not know why her son kept hitting her. On cross-examination, Nurse Babiarz agreed Frieda's statement that her son injured her "could have been in response to [his] question or [his] suggestion that her son did it." Frieda's statements were made 90 minutes after she was admitted into the hospital, after Dr. Burke treated Frieda's head wound.

Dr. Burke said Frieda was "somewhat unreliable and only partially oriented" during a few of the occasions when she spoke with Frieda. Dr. Burke noted, however, that Frieda did not seem unreliable when she said her son had hit her. She testified it was important for Frieda's treatment to know how she had been injured and if she had been injured at the hands of her caregiver. This information would affect Dr. Burke's "final disposition knowing whether she would be safe to go home or not or whether they—she would be cared for at home or not."

Defense counsel objected to the admission of the hearsay statements on the grounds that they did not fit within a recognized hearsay exception, arguing the statements regarding the assailant's identity had nothing to do with her injuries or treatment. The State, relying on child sexual abuse cases, argued an exception applies when the alleged attacker is a family member because it is necessary to know the identity of the abuser to prevent future abuse. The trial court agreed with the State, noting one of the pertinent factors in the child abuse cases was that the victim lived with the alleged abuser. Because defendant lived with Frieda and was responsible for her caretaking, the court found the statements relevant to her care and treatment.

Dr. Mark Dorfman, an emergency room physician at Resurrection Hospital, testified he treated Frieda on June 24, 2000. Frieda had a laceration to her scalp, a laceration over her eyebrow which looked old, swelling around her eye, a small hemorrhage in her eye, and multiple bruises on her back and extremities that appeared to be in different stages of healing. Dr. Dorfman opined the injuries were not consistent with Frieda falling out of bed twice on the same day.

Detective Terrance Hart testified he was assigned to investigate a possible aggravated battery against Frieda. Defendant told Detective Hart that Frieda was depressed after she returned home from a hospital stay and had fallen twice. After the second fall, defendant noticed her head was bleeding. Defendant called Dr. Podgers, who advised him to take his mother to the hospital. Defendant told Detective Hart that he was having difficulty taking care of her and was trying to get a homemaker to come in and help.

Defendant showed Detective Hart the bedroom where Frieda fell. Detective Hart saw a large pool of blood on a wooden floor next to the middle of Frieda's bed. A picture of the bedroom, People's Exhibit Number Nine, depicted a wooden stool at the head of the bed and blood on the wooden floor. When asked if the picture accurately depicted the bedroom, Detective Hart said he did not recall the stool being there. He did not document the stool in his report or have it checked for blood.

Defendant agreed to return to the Area 5 police station for further questioning. During questioning, defendant said his mother had fallen down twice. Defendant said Frieda's injuries were cause by the falls, not by him hitting her. After defendant was arrested and again read his Miranda rights, defendant admitted that he put his hand on his mother's mouth "to shut her up." Defendant said his mother fell and hit her head on a metal object. He did not push her the first time she fell. When Detective Hart asked defendant what he meant, defendant did not answer.

The parties stipulated to the testimony of Kathleen Minogue and Kevin O'Malley, the Chicago Fire Department paramedics called to Frieda's home. Minogue and O'Malley found Frieda face down on the floor by the bed in a pool of blood. There was no object in the area which Frieda could have struck while falling.

The defense presented evidence through a series of stipulations. Marianne Monroe, a registered nurse, treated Frieda on June 25, 2000. When Monroe asked Frieda what happened, Frieda said "I may have fallen." Amy Baldwin, a physical therapist, and Kathy Kornbluth, an occupational therapist, treated Frieda on June 28, 2000. Frieda was oriented only to herself and did not know the date or time. Both Baldwin and Kornbluth concluded Frieda was confused and memory impaired.

The trial court found defendant guilty of aggravated battery and sentenced him to three years' probation. Defendant appealed.

DECISION

I. Confrontation Clause Violations

Defendant, relying on Crawford, contends Frieda's statements to Nurse Babiarz and Dr. Burke constituted testimonial evidence. Defendant contends their admission at trial, in the absence of an opportunity to cross-examine Frieda, violated his sixth amendment constitutional right of confrontation.

We will not consider a constitutional question if the case can be decided on other grounds. People v. Mitchell, 155 Ill.2d 344, 356, 185 Ill.Dec. 528, 614 N.E.2d 1213 (1993); People v. Dixon, 28 Ill.2d 122, 125, 190 N.E.2d 793 (1963)....