People v. Victors

• Decision Date: 15 November 2004
• Docket Number: No. 2-03-0486.,2-03-0486.
• Citation: 353 Ill. App.3d 801,819 N.E.2d 311,289 Ill.Dec. 154
• Parties: The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Anthony E. VICTORS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

819 N.E.2d 311

353 Ill. App.3d 801

289 Ill.Dec. 154

The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Anthony E. VICTORS, Defendant-Appellant.

No. 2-03-0486.

Appellate Court of Illinois, Second District.

November 15, 2004.

G. Joseph Weller, Deputy Defender and Thomas A. Lilien (Court-appointed), Office of the State Appellate Defender, Elgin, for Anthony E. Victors.

Joseph E. Birkett, DuPage County State's Attorney, Lisa A. Hoffman, Assistant State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice HUTCHINSON delivered the opinion of the court:

Defendant, Anthony E. Victors, was charged by complaint on July 12, 2002, with committing the offense of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2002)). The complaint alleged that on July 12, 2002, he knowingly made physical contact of a provoking nature with the victim, Veronica DelValle. Following a bench trial, defendant was found guilty and sentenced to one year of probation with conditions, including 130 days of county jail time, credit for time served, and fines totaling $110. Defendant timely appeals, contending that (1) the record fails to establish that he validly waived his right to a trial by jury; (2) the trial court erroneously admitted DelValle's hearsay statements under the "excited utterance" exception to the hearsay rule; and (3) his $100 fine for the domestic violence conviction should be held to be satisfied by $5-per-day credit for the time he spent in custody. We reverse and remand.

The trial court set the matter for trial on February 13, 2003. On February 13, 2003, the trial court continued the scheduled jury trial to February 18, 2003. On the morning of February 18, the attorneys appeared before the trial court and answered ready for trial. When the trial court inquired whether the trial would be a "jury or bench," defense counsel replied that it would be a "Jury." The trial court then told the attorneys to return at 1:30 p.m. Later that morning, however, defense counsel returned to the courtroom and stated to the trial court, "Your Honor, I had a chance to speak with my client. He'd like to go with a bench trial."

When the case was called at 1:30, the trial court conducted a bench trial. The State called as witnesses Carl Doerr and his wife, Maria. The Doerrs testified that on July 11, 2002, they were staying in room 108 of the Extended StayAmerica in Downers Grove. They knew that defendant and DelValle, along with her baby, were occupying room 106.

The Doerrs testified that at approximately 12:30 a.m., they heard a disturbance coming from room 106. The head of their bed was against the wall that separated their room from room 106. The Doerrs then heard a "slapping-type" sound, followed by several "thumping" sounds against the common wall. They also heard defendant speak in a loud, angry tone, and Carl Doerr heard defendant call DelValle a "little ignorant bitch." The Doerrs testified that they had spoken to both defendant and DelValle in the past and thus recognized their voices. Defendant also said to DelValle "just because you have a kid doesn't mean you know anything in life." The Doerrs heard DelValle reply "Please stop." Carl Doerr then called the police and spoke with the police upon their arrival. The Doerrs later saw DelValle in the hallway, whom they described as appearing disheveled. Carl Doerr testified that DelValle had a red mark on her neck.

The only other witness to testify at trial was Downers Grove police officer Robert McMahon. McMahon testified that he was on duty on July 11, 2002, at approximately 12:30 a.m., when he responded to a report of a domestic battery at the Extended StayAmerica. When McMahon arrived, he spoke with Carl Doerr for approximately three to five minutes before knocking on the door of room 106. Defendant opened the door and McMahon informed defendant that the police had received a complaint of an argument and asked what was happening. McMahon entered the room and spoke with defendant while a backup officer escorted DelValle to the hallway. As DelValle passed McMahon, he observed that she was crying.

McMahon spoke with defendant while the backup officer spoke with DelValle. McMahon testified that defendant told him that he and his girlfriend had an argument. After approximately five minutes, McMahon spoke with DelValle. He testified that her demeanor was the same as when he had first seen her; she was crying, upset, and "frightful in her face." He did not observe any bruises or injuries on her.

The State sought to elicit from McMahon the statements DelValle made on the scene about what had happened. Defense counsel objected, based on hearsay. The State responded that the statements were admissible under the "excited utterance" exception to the rule against hearsay. Defense counsel objected, arguing that the State had not laid the requisite foundational elements to establish the "excited utterance" exception because there was no evidence presented to establish a "triggering event" that brought about the excited utterances. The trial court allowed the testimony of McMahon, but reserved its ruling on the admissibility of the statements.

Officer McMahon testified that he advised DelValle that the police had received a report of a domestic situation, and he asked her what happened. According to McMahon, DelValle told him that she and defendant had begun arguing after defendant's former wife or girlfriend had called. DelValle stated that the argument escalated when defendant pushed her head against a door and pulled her hair. Defendant then began punching her in the lower back with his fist. When DelValle moved to the couch, defendant began choking her. Defendant then stopped and apologized. DelValle signed a complaint and McMahon placed defendant under arrest. DelValle did not testify.

Both sides rested, and the trial court granted the attorneys until the next morning to research the issue of the admissibility of the purported "excited utterances." The next morning, the trial court heard arguments on defendant's continuing objection to McMahon's testimony about DelValle's alleged statements. Defense counsel argued that the statements were not excited utterances because McMahon was the second officer with whom DelValle had spoken. The trial court ruled that the statements were admissible as excited utterances.

Following closing arguments, the trial court found defendant guilty of domestic battery. The record reflects that a signed jury waiver form was filed with the circuit clerk on the afternoon of February 19. Defendant timely appeals following the trial court's denial of his posttrial motion.

On appeal, defendant first contends that the trial court erred when it conducted a bench trial on the domestic battery complaint when the record failed to establish that he had knowingly and understandingly waived his right to a jury trial. In support of this contention, defendant argues that, when his attorney informed the trial court that defendant wished to proceed with a bench trial, it was done out of his presence and, further, it was done on the day his jury trial was scheduled to begin. Defendant also argues that he was never admonished by the trial court that he was giving up the right to a jury trial. Further, defendant argues that, although he did sign a jury waiver form, that form was not filed until after the conclusion of the bench trial and did not in and of itself constitute a knowing and understanding waiver of his right to a jury trial.

We note that defendant is raising this issue for the first time. Usually, errors not objected to during trial or raised in a posttrial motion are considered waived. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). However, under Supreme Court Rule 615(a), this court may review plain errors affecting substantial rights, even if those errors were not identified during trial or presented in a posttrial motion. 134 Ill.2d R. 615(a). The right to a trial by jury is a fundamental right. U.S. Const., amend. VII. The question of a knowing waiver of the fundamental right to a jury trial is considered under the plain error doctrine. In re R.A.B., 197 Ill.2d 358, 363, 259 Ill.Dec. 24, 757 N.E.2d 887 (2001). Whether a defendant knowingly and understandingly waived his right to a jury trial is a question of law. R.A.B., 197 Ill.2d at 362, 259 Ill.Dec. 24, 757 N.E.2d 887. Therefore, our standard of review is de novo. R.A.B., 197 Ill.2d at 362,

259 Ill.Dec. 24,

757 N.E.2d 887.

In a criminal case, a defendant is entitled to a trial by jury unless that right is "understandingly waived by defendant in open court." 725 ILCS 5/103-6 (West 2002). Further, in criminal cases, jury waivers should be in writing. 725 ILCS 5/115-1 (West 2002). However, the failure to file a written jury waiver does not require reversal so long as the defendant's waiver was made in accordance with section 103-6 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/103-6 (West 2002)). Thus, under the Code, a defendant waives his or her right to a jury trial only if the waiver is made understandingly and in open court. People v. Scott, 186 Ill.2d 283, 285, 238 Ill.Dec. 36, 710 N.E.2d 833 (1999), citing People v. Tooles, 177 Ill.2d 462, 468, 227 Ill.Dec. 125, 687 N.E.2d 48 (1997). When it comes to an oral waiver, a knowing and understanding waiver can be found only if, in the defendant's presence and without an objection from the defendant, "defense counsel expressly advises the court" that the defendant desires to proceed by way of a bench trial. People v. Eyen, 291 Ill.App.3d 38, 41, 225 Ill.Dec. 249, 683 N.E.2d 193 (1997). The law imposes no requirement that the record affirmatively show that the trial court advised a defendant of his or her right to a jury trial or that he or she was advised of the consequences of his or her waiver. People v. Frey, 103 Ill.2d...