## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Brown , 2013 IL App (2d) 110327

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J AMES J . BROWN, Def endant- Appellant.

District & N o. Second District Docke t No. 2-11-0327

Filed April 12, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for felony domestic battery was upheld over his contentions that he did not knowing ly and voluntarily waive a bench trial and that his rig hts under the confr ontation clause wer e violated by the admission of his wife’ s testimony that her son told her that defe ndant had pushed him, since the rig ht to a bench trial is one defe ndant must asser t, and the son’s hear say statement was not testimonial, but was intended to meet an ong oing e merg ency arisingfrom def

endant’ s conduct.

Dec ision Under Review Appea l f rom the Circuit Court of Winnebag o County
, No. 10-CF- 2984; the Hon. Ga

ry V. Pumili a, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l J ames K. L even, of Chicag o, for a

ppellant.

J oseph P

. Br

uscato, S tate’s Attorney
, of R ockfor d (L awr ence M. Ba uer and Victoria E. J ozef, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE HUDSON deliver ed the judgment of the c ourt, with opinion.
J ustices J org ensen a

nd Birke tt concurr ed in the judg ment and opinion.

OP INION

¶ 1 I . I NTRODUCTI ON ¶ 2 Def

endant, J ames J

. Br own, was convicted of domestic battery (720 I L CS 5/ 12-3.2(a )(2) (West 2010)), a felony in this case

. He n o w ap p ea l s, raising two issues. First, he contends that the rec ord does not disclose that he knowing ly
, voluntarily
, and intelligently waived his rig ht to a bench trial. Second, he alleg es a violation of the confr ontation clause (U.S. Const., amend. VI ) in acc ordanc e with Crawf ord v. W ashington
, 541 U.S. 36 (2004), an d i t s prog eny . We find neither a rgument well taken a

nd aff irm.

¶ 3 I I . BA CKGROUND ¶ 4 The State obtained a three -count indictment ag ainst defe ndant, charg ing him with felony domestic battery (720 I L CS 5/12-3.2(a) (2) (West 2010)). Count I alleg ed that he committed domestic battery by striking Kathy Br own (his wife)

. Count I I alleg ed that he committed the offe nse by throwing milk in the fac e of Caden (Kathy ’s five-year -old son). Count I I I alleg ed that defe ndant commi tted the offense b y p u s h i ng over a chair in which C aden was si tting. Eac h count alleg ed that def endant ha d previously been convicted of domestic battery in an unrelated ca se. ¶ 5 Prior to the trial, the S t at e b ro u gh t a motion in limine seeking a ruling reg ardingthe admissibili ty of t estimony from Kathy that Caden tol d her that defe ndant had pushed hi m. T h e State argued that this statement was admissible as an excited utteranc e. De fe n d an t responde d that the statement wa s not an excited utteranc e and that, as t estimonial hear say , its admission would violate the dictates of Crawf ord
, 514 U.S. 36. The trial court deter mined that the statement was not testimonial and was thus outside the scope of C r a w ford and allowed its admission as an excited uttera nce. ¶ 6 At trial, Sean Welsh, a Rockford police office r, first testified for the State. On August 22, 2010, Welsh was dispatched to 1712 Tenth Street, along with Offic er Richard Dodd. Dodd approa ched the residenc e and spoke with Kathy

. Caden was also prese nt. After lear ning what

-2-had transpire d, Dodd enter ed the residenc e to look for defe ndant. Def endant was not prese nt. Welsh and Dodd sear ched the are a and then drove around lookingfor de fenda nt. They did
not find him. Subsequently , they returne d to 1712 Tenth Street. Welsh went to the bac k of
t h e h ouse, and Dodd went to the front. Dodd encounte red defe ndant and spoke wit h h i m

. Welsh noted that defe ndant’s speec h was slurred, his eyes wer e “g lossy ,” his g ait was unsteady
, and his breath smelled of alcohol. Def endant wa s ar rested. During crossexamination, Welsh testified that he did not rec all speaking to Kathy

. He did, howeve r, have
contac t with Caden. Welsh did not observe any injuries to Caden or any thing unusual about him. ¶ 7 The State next called Kathy

. She testified that, in August 2010, she and defe ndant wer e living at 1712 Tenth Street along with Kathy ’s two children–Cade n and 20-year -old Corey

. Kathy testified t hat, t houg h defe ndant was not Caden’s biologica l fathe r, he had “been his fathe r since he was born.” On August 22, 2010, Kathy g ot up and made Caden brea kfast. She “had hi m s i t t i n g i n the dining room eating .” She then went out on the porch to have a cig are tte. She could “he ar what was g oing on in the house ” fr om the porch. ¶ 8 Kathy

hear d defe ndant come out of the bedroom and y ell at Caden to e at his breakfast. She hear d Caden “whining .” She then hear d a “thump,” so she went back into the house. The chair in which Caden had been sitti ng had been pushed over, and Caden was “sitting on the chair when it fell, so he kind of went with the chair .” It was “[j] ust a few seconds” from the time she hear d t h e “t h ump” until she observe d Caden on the floor. Def endant was in the dining room. Corey was lying on the couch in the living room. Caden wa s cry ing and appea red upset. He g ot up and stood by the wall. Kathy asked him what happene d and he told her that “Daddy

pushed him.” An objec tion by defe ndant was ove rruled at this poi nt. ¶ 9 Kathy told d ef en d an t t o “get the heck out.” Def endant stated that he was not going any wher e. They argued; then, defe ndant punched Kathy in the fac e. Next, defe ndant turned around, picked up a g lass of milk, and threw it in Caden’s fac e. Caden started cry ing ag ain. Kathy stated that, though it was painful when defe ndant hit her, she d i d n o t s ustain any visible injuries. Caden rema ined near the wall throug hout this alterc ation. Kathy took Caden and clea ned him up; defe ndant returne d to the bedroom. Initially
, Kathy did not contac t the police; howeve r, she later called them using Corey ’s cell phone, as defe ndant had broken the house phone. ¶ 10 During cross-e x amination, Kathy testified that it was about 9 or 9:30 a.m. when she made brea k fa s t fo r Caden. The alterc ation took place betwee n 20 and 30 minutes later. She acknow ledg ed that she did not call the police until afte r 7 p.m. She stated that Caden was not phy sically

injured. 1 ¶ 11 Corey next testified for the State. On the morning of August 22, 2010, Corey was lying

on the couch in the living room. He hear d a cra sh. He started to g et up, but then Kathy came running by

. Corey could see into the dining room. He saw Kathy and defe ndant argue; then,

K at hy gav e con si der abl e add it ion al te st imony on bot h dir ect and cr oss

- exa m in a t i o n 1

re gardi ng events tha t tr ans pir ed over the cou rs e of the day. As thi s te st imony doe s not she d any li ght
on t he i ssu es pre sen te d i n t his app eal , we wi ll not re cou nt it her e.

-3-defe ndant punched Ka t h y and threw milk in Caden’s fac e. Caden was upset and cry ing. Def endant and Kathy arg

ued periodica lly throug hout the day

. E v en t u all y , the police wer e called. On cross-e x amination, Corey stated that he did not speak with the police when they

arr ived. He a g ree d that, while he did se e Caden on the floor, he did not se e how Cade n g ot there

. He “just heard t h e n o i se.” Corey acknow ledg ed that his rela tionship with defe ndant is poor. ¶ 12 Finally
, t h e S t at e called Dodd. At about 7:30 p.m. on August 22, 2010, he and Welsh

wer e dispatched to 1712 Tenth Street. Dodd spoke with Kathy
, and Welsh spoke briefly with Caden. They enter ed the house to look for defe ndant, but defe ndant was not there

. They left to look for def

endant e lsewher e. Subsequently , they returne d and appr ehende d defe ndant. ¶ 13 Dodd took a statement from Kathy

. Kathy spoke, and Dodd wrote down what she said. He wrote the statement “in her first person” and rea d it back to her t o verify that the information was corr ect. Kathy signe d the statement. Dodd did not write down “eve ry single detail.” During cross-e x amination, Dodd stated that he did not observe any injuries to Kathy or any signs of a strug g le in the house. When Dodd first enc ountere d defe ndant, def endant

was “quiet, collecte d and cooper ative.” Following Dodd’s testimony
, the State rested and the defe nse did as we ll. ¶ 14 Following the trial, defe ndant was acquitted of the first count but convicted on the latter
two. T h e trial court sentenc ed defe ndant on only the third count, finding that the fac ts underlying counts I I and I I I wer e “p ra ct i ca l ly simult aneous.” Def endant was sentenc ed to three y ear s’ imprisonment and four y ear s’ m an datory supervised rele ase. This appea l followed.

¶ 15 I I I . ANALYSI S ¶ 16 On appea l, defe ndant raises two issues. First, he alleg es err or in that the rec ord does not show a proper waiver of his rig ht to a bench trial. Second, he argues that Kathy ’s testimony that Caden told her that defe ndant had pushed him violated his rig hts under the confr ontation clause . U.S. Const., amend. VI . We disag ree with both contentions.

¶ 17 A. Waiver of D efe ndant’s Rig ht to a Be nch Tria l ¶ 18 Def

endant first argues that we s h o u l d re v erse and rema nd for a new trial beca

use the

rec ord does not disclose that he mad e a knowing
, voluntary
, and intelligent waiver of his rig ht to a bench trial. In I llinois
, a criminal defe ndant has a state con s t i t u t i o n al rig ht to a bench trial. People ex rel. Daley v. Joyc e , 126 I ll. 2d 209, 222 (1988). Howeve r, we are

awa re of no case , rule, or statute that require s that the re cord must show that the wa iver of this rig ht is knowing, voluntary
, and intelligent. Def endant calls our attention to no such authority . Instead, de fenda nt relies on ca se law r eg ardingthe waiver of a defenda nt’s rig ht
to a jury t ri al
, as s erting that the rig ht to a bench trial should be acc orded equal dignity

. Whether a defe ndant must make a knowing
, voluntary
, and intelligent on-the-r ecor d waiver of the rig ht to a bench trial prese nts a question of law and i s t h erefore subject to de novo revie w ( In re R.A.B

. , 197 I ll. 2d 358, 362 (2001)).

-4-¶ 19 Unquestionably
, the right to a trial by jury is fundame ntal. Blakely v. W ashington
, 542 U.S. 296, 305-06 (2004) (the rig ht to a jury trial “is no mere proce dural formality
, but a fundame ntal rese rvation of power in our constitutional structure ”); People v. McGhee
, 2012 I L App (1st) 093404, ¶ 24 (“L ike the rig ht to a trial by an unbiased jury
, the ri gh t t o a unanimous verdic t is among the most fundame ntal of rig hts in I llinois .”). Acc ording ly
, any waiver of this rig ht must be knowing
, voluntary
, and intelligent. See People v. Todd
, 178 I ll. 2d 297, 316 (1997). Moreove r, “[i] t is axiom atic that the waiver of the rig ht to a trial by jury
cannot be presumed from a silent rec ord.” People v. W itt , 227 I ll. App. 3d 936, 944 (1992). Def endant argues that in I llinois the rig ht to a bench trial should be acc orded equal dignity

. ¶ 20 To this end, defe ndant sets forth languag e from I llinois ca s es p u rp o rt i ng to show the fundame n t al n at u re of the bench- trial rig ht. For example, in People v. Gersch
, 135 I ll. 2d 384, 392 (1990), our supreme court observe d that “the constitutional rig ht to a bench trial in I llinois has existed since statehood.” I n Joyc e , 126 I ll. 2d at 222, the court stated: “The dimension of our constitutionally protec ted right to a trial by jury under the 1870 constitution is clea

r under the Fisher and Spegal analy ses, and clea rly encompa ssed the rig ht of an acc used t o waive trial by jury

. T h at rig ht, as i t was understood and enjoy ed by the people of this State (‘her etofore enjoy ed’) , was a dopted and incor porate d in our 1970 constitut i o n

. S hort of a constitutional amendment to that eff ect, the leg islature
cannot now deprive an accuse d in I llinois of any part of that constitutionally protec ted rig ht.” Simi larly
, in People v. Hoffman , 379 I ll. 318, 321 (1942), the supre me cour t observed that “[t] he rig ht to a trial by an impartial judge wher e a jury is waived is equally guara nteed and safe guarde d by

the constitution.” ¶ 21 Howeve r, even if the right to a bench t rial i s of st ature equal to the right to a jury trial, it does not automatically

follow that the proc edure s used to safe guard those r ights must be the same. In People v. Powell
, 281 I ll. App. 3d 68, 73 (1996), the Four th District of this appellate court ex p l ai n ed that the onus to asser t the rig ht to a bench trial is on a criminal defe ndant: “[A] jury trial is the norm for a felony case and a bench trial is the exception; there fore
, a defe ndant who wishes a bench trial instead of a jury trial must make his position known
to the trial court if his trial attorney fail s t o d o s o. I f a defe ndant fails to speak out, as here
, to make his de sire for a bench trial known when the tr ial court be g ins the proce ss of selec ting and impaneling a jury
, we will not enter tain his later, afte r-the- fac t claim that he re ally wanted a bench tr ial all along

. In support of this holding, we note that both the fede ral and I llinois C o n s t i t u t ions expli citly speak of a defe ndant’s rig ht to a jury trial, but neither speaks of a defe ndant’s rig ht to a bench trial. See U.S. Const., amend. VI ; I ll. Const. 1970, art. I
, § 8. [ ]I ndeed,

we note that defe ndants in fede ral cr i m i n al proce eding s have no such rig ht; instead, bench tr ials occur

only if the def endant’ s reque st for a jury waiver has ‘the a pproval of the court and the consent of the govern m ent.’ Fe d. R. Crim. P. 23(a)

. Fur ther, we note that section 115-1 of

the Code of Criminal Procedur e of 1963 indicates that a jury trial shall be t h e n o rm and a bench trial the exception by providing as follows: ‘All

-5-prosec utions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jur y unless the defe ndant waives a jury trial in writing.’ 725 I L CS 5/115-1 (West 1992).
Even at its most eff

icient, the proce s s o f s el ecting a jury in a criminal case takes a consi d era ble amount of t ime–usually at l east an hour or more. A defe ndant s itting i n a courtroom watching this proce ss could hardly be confuse d as to what is taking place

. Thus, we have no sy

mpathy for this de fenda

nt or any other who sits through that entire proce ss and–whi l e s up p o sedly wishing for a bench trial–say s nothing to the t rial court

even though, as defe ndant claims here
, his trial counsel has failed to reque st a bench trial in acc ordanc e with def

endant’ s wishes. The argument defe ndant makes here could be made in ever y case in which a defe ndant is convicted by a jury and the trial court did not expli citly inquire of defe ndant, befor e or during the jury selec tion proce ss, whether he in fac t wished to have a jury trial. We decline to impose on the trial courts the b u rd en o f making such inquiries, both beca use those courts are alre ady sufficie ntly burdene d with other, important proce dural

conce rns and beca

use imposing such a burden would be unwar rante d.” (Emphase s in orig inal.) We find this reasoningpersua sive here

. ¶ 22 Moreove r, we note that, wher e m u t u al l y ex cl u s i v e, competing rig hts are involved, requiring admonishments c an prese nt c erta in pr oblems. For example, a trial court need not advise a defe ndant of his or her rig ht to testify nor must it obtain an on-the-r ecor d waiver of that rig ht. People v. Davis
, 378 I ll. App. 3d 1, 11 (2007). A defe ndant, of course , also has a rig ht to ref

use to testify

. People v. Vaughn
, 354 I ll. Ap p

. 3 d 9 1 7
, 924 (2004). Whether to advise a defe ndant reg arding these rig hts is a matter within the discretion of the trial court. People v. Pede n , 377 I ll. App. 3d 463, 471 (2007). Howeve r, a judge choosing to admonish

a defe ndant o n t h i s s ubject must ref rain from crossing into the rea lm of advoca cy and not influence the defendant’s decision reg arding whether to testify

. See Vaughn
, 3 5 4 I l l. App. 3d at 925-26. The trial court “m u s t be car eful to issue admonishments reg arding selfincrimination and the rig ht not to testify without impairing the defe ndant’s ability to prese nt his defe nse.” Pede n , 377 I ll. App. 3d at 471. Many of the same conce rns apply here ; a judge admonishing a defe ndant reg arding his right t o a b en ch trial might well influence the defe ndant’s dec ision reg ardingwhether to exercise his or her

rig ht to a jury

trial. ¶ 23 Indeed, our supreme court has set forth s ev er al re as o n s wh y a trial court need not admonish a def

endant r eg arding

his right to testify : “ ‘At least seven rea sons have been g iven for this conclusion: First, the right to testify is seen as the kind of rig ht that must be asser ted in o rd er to be rec og nized. [C itation.] Second, it is important that the decision to testify be made at the time of trial and that the failure to testify not be raised as an afte rthoug ht afte r conviction. [C itation.] Third, by advising the defe ndant of his rig ht to testify , the cour t could influence the def

endant to waive his rig ht not to testify
, “thus threatening t h e exercise of this other, conver se, constitutionally

expli cit and more fra g ile right.” [ Citation.] Four th, a court so advising

a defe ndant might i m proper ly intrude on the attorney-client relation, protec ted by the

-6-Six th Amendment. [Ci tation.] Fifth, ther e is dang er that the judge ’s admonition would introduce err or into the trial. [C itation.] Six th, it is hard t o s ay when the judge should appropr i at el y advise the defe ndant–the judge does not know the defe ndant is not testifying until the defe nse rests, not an opportune moment to conduct a colloquy

. [C itation.] Seventh, the judge should not interfe re with defe nse strategy

. [C itat i o n.]’ ” (Emphase s in orig inal.) People v. Smith
, 176 I ll. 2d 217, 235 (1997) (quoting United States v. Martinez , 883 F.2d 750, 760 ( 9th Cir. 1989)).
Not all of these considera tions apply here
, but many do. First, as noted in Powell
, this rig ht likewise must be asser

ted. As for

the sec ond fac tor, we be lieve that a post hoc claim that a defe ndant actua lly wanted a bench trial would be simil arly problematic. Powell
, 281 I ll. App. 3d at 73 (“I f a defe ndant fails to speak out, as here
, to make his desire for a bench trial known when the trial court beg ins the proce ss of sel ecting and impaneling a jury
, we will not enter tain his later, after -the-f

act claim that he really wanted a bench trial all along .”). L ike the third fac tor, advisinga def endant reg arding a bench t rial could discourag e the ex erc ise of the constitutionally expli cit rig ht to a jury trial. Id. (“[W] e note that both the fede ral and I llinois Constitutions expli citly speak of a defe ndant’s rig ht to a jury trial, but neither speaks of a defe ndant’s right to a bench trial.” (Emphase s in or igina l.)). As discussed above, there is a risk that a judge could assume the role of advocate and interfe re with defe nse counsel’s repr esentation, as sug g ested by the fourth a

nd seventh fa ctors. F inally , the dange r of err or,

as the fifth fac tor sets forth, wo u l d al s o seem to be prese nt. Thus, as with whether to admonish a defe ndant reg arding his or her rig ht to testify
, we hold that whether to admonish

a defe ndant reg arding his or her rig ht to a bench t rial is a matter within the trial court’s discretion. I t is a

rig ht that a defe ndant must a ssert. Acc ording ly
, there is no need to obta in

an on-the-r ecor d waiver of this rig ht. As such, defe ndant’s position in this case is untenable.

¶ 24 B. Crawf ord Violation ¶ 25 Def

endant next alleg es a violation of the rule set forth i n C r a w f o r d
, 5 4 1 U.S. 36. Crawf ord forbids the admission of testim o n ial h e a r s a y u n le ss the decla

rant is unavailable and the defe ndant had a previous opportunity to cross-e x amine the decla rant. People v. Ingram
, 382 I ll. App. 3d 997, 1001-02 (2008). De fe n d ant contends that the admission of Kathy ’s testimony that Caden told her that defe ndant had pushed hi m was error. Resolution of t his argument turns on whether Caden’s state ment was testimonial. ¶ 26 Gene rally speaking
, a sta t em ent is testimonial if it is solemn and intended to establish

some fac t, like the testimony of a witness at a trial who is rec ounting past events. People v. Stechly
, 225 I ll. 2d 246, 281-82 (2007). Statements abo u t fault and identity are ty pically deeme d testimonial. See People v. Purcell
, 364 I ll. App. 3d 28 3
, 297 (2006). Howeve r, statements made during the course of an ong oing emer g ency constitute an exception to this g ener al rule. People v. Lisl e , 376 I ll. App. 3d 67, 81 (2007); see also Davis v. W ashington
, 547 U. S

. 8 1 3
, 8 27 (2006) (“[T] he nature of what was asked and answe red in Davis
, ag ain viewed objectively
, was such that the elicited statements wer e nece ssary to be able to resolve the pres ent emer g ency , rathe r t han si mply to lear n (as in Crawf

ord ) what had happened in the past. That is true even of the operator’s eff ort to establish the identity of the assailant, so

-7-that the dispatched office rs mig ht know whether they would be encounte ring a violent felon.” (Emphasis in orig inal.)). Indeed, the Supreme Court, considering whether a statement made during the course of a 911 call was testimonial, observe d that, while “one might call 911 to provide a narr ative repor

t of a crime absent any imminent dang er, [t he decla rant’s] call was plainly a call for help ag ainst a bona fide phy sical threat.” (Emphasis in orig inal.) Davis
, 547 U.S. at 827. The decla

rant was fac ing an ong oing emer g ency

. Id. The primary purpose of the
statement was to meet that emer g ency

. Id. at 828. In other words, it was not testimonial. Id. ¶ 27 Caden’s statement wa s simil arly intended to meet a

n ong oing e merg ency , namely
, two incidents of domestic battery

. I t occur red betwee n the points at which defe ndant pushed his chair over and defe ndant threw milk in his fac e. Sp e c if ically
, acc ording to Kathy ’s testimony : (1) defe ndant y elled at Caden and Kathy hear d a “thump” (pre sumably Caden being pushed
to the floor); (2) Kathy enter ed the room and saw Caden on the floor, cry ing; (3) Kathy asked what had happene d and Caden explained how he had come to be lying on the floor; (4) Kathy told de fenda

nt to leave ; (4) defe ndant ref used and they argued; (5) defe ndant threw milk in Caden’s fac e; and (6) Caden started cry ing ag ain. Thus, Caden’s statement occur red during

a fast-pa ced confr ontation and it conce rned a threat to Caden’s well being

. As such, the
statement was not testimonial. See L is l e , 3 76 I ll. App. 3d at 81 (“[The decla rant] would, undoubtedly
, have anticipated that identifying his assailant to his aunt would allow his aunt to take pre cautionar

y measure s should the assailant also ar rive a t he r residenc e. There fore
, [t he decla rant’s] statement *** wa s nontestimonial in nature.”). I n sum, de fenda

nt’s rig hts under the confr ontation clause ( U.S. Const., amend. VI ) we re not violated.

¶ 28 IV. CONCLUSI ON ¶ 29 In light of the fore g oing, the judgme nt of the circ uit court of Winneb ago C o u n t y is aff irmed.

¶ 30 Affir

med.

-8-