ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

JAMES J. BROWN, Defendant-Appellant.

 District & No. Second District

Docket No. 2-11-0327

Filed April 12, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s conviction for felony domestic battery was upheld over his

contentions that he did not knowingly and voluntarily waive a bench trial

and that his rights under the confrontation clause were violated by the

admission of his wife’s testimony that her son told her that defendant had

pushed him, since the right to a bench trial is one defendant must assert,

and the son’s hearsay statement was not testimonial, but was intended to

meet an ongoing emergency arising from defendant’s conduct.

Decision Under 

Review

Appeal from the Circuit Court of Winnebago County, No. 10-CF-2984;

the Hon. Gary V. Pumilia, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

James K. Leven, of Chicago, for appellant.

Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer

and Victoria E. Jozef, both of State’s Attorneys Appellate Prosecutor’s

Office, of counsel), for the People.

Panel JUSTICE HUDSON delivered the judgment of the court, with opinion.

Justices Jorgensen and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 I. INTRODUCTION

¶ 2 Defendant, James J. Brown, was convicted of domestic battery(720 ILCS 5/12-3.2(a)(2)

(West 2010)), a felony in this case. He now appeals, raising two issues. First, he contends

that the record does not disclose that he knowingly, voluntarily, and intelligently waived his

right to a bench trial. Second, he alleges a violation of the confrontation clause (U.S. Const.,

amend. VI) in accordance with Crawford v. Washington, 541 U.S. 36 (2004), and its

progeny. We find neither argument well taken and affirm.

¶ 3 II. BACKGROUND

¶ 4 The State obtained a three-count indictment against defendant, charging him with felony

domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2010)). Count I alleged that he committed

domestic battery by striking KathyBrown (his wife). Count II alleged that he committed the

offense by throwing milk in the face of Caden (Kathy’s five-year-old son). Count III alleged

that defendant committed the offense by pushing over a chair in which Caden was sitting.

Each count alleged that defendant had previously been convicted of domestic battery in an

unrelated case.

¶ 5 Prior to the trial, the State brought a motion in limine seeking a ruling regarding the

admissibility of testimony from Kathy that Caden told her that defendant had pushed him.

The State argued that this statement was admissible as an excited utterance. Defendant

responded that the statement was not an excited utterance and that, as testimonial hearsay,

its admission would violate the dictates of Crawford, 514 U.S. 36. The trial court determined

that the statement was not testimonial and was thus outside the scope of Crawford and

allowed its admission as an excited utterance.

¶ 6 At trial, Sean Welsh, a Rockford police officer, first testified for the State. On August 22,

2010, Welsh was dispatched to 1712 Tenth Street, along with Officer Richard Dodd. Dodd

approached the residence and spoke with Kathy. Caden was also present. Afterlearning what

-2-
had transpired, Dodd entered the residence to look for defendant. Defendant was not present.

Welsh and Dodd searched the area and then drove around looking for defendant. They did

not find him. Subsequently, they returned to 1712 Tenth Street. Welsh went to the back of

the house, and Dodd went to the front. Dodd encountered defendant and spoke with him.

Welsh noted that defendant’s speech was slurred, his eyes were “glossy,” his gait was

unsteady, and his breath smelled of alcohol. Defendant was arrested. During crossexamination, Welsh testified that he did not recall speaking to Kathy. He did, however, have

contact with Caden. Welsh did not observe any injuries to Caden or anything unusual about

him.

¶ 7 The State next called Kathy. She testified that, in August 2010, she and defendant were

living at 1712 Tenth Street along with Kathy’s two children–Caden and 20-year-old Corey.

Kathy testified that, though defendant was not Caden’s biological father, he had “been his

father since he was born.” On August 22, 2010, Kathy got up and made Caden breakfast. She

“had him sitting in the dining room eating.” She then went out on the porch to have a

cigarette. She could “hear what was going on in the house” from the porch.

¶ 8 Kathy heard defendant come out of the bedroom and yell at Caden to eat his breakfast.

She heard Caden “whining.” She then heard a “thump,” so she went back into the house. The

chair in which Caden had been sitting 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 heard the “thump” until she observed Caden on the floor. Defendant was in the

dining room. Corey was lying on the couch in the living room. Caden was crying and

appeared upset. He got up and stood by the wall. Kathy asked him what happened and he told

her that “Daddy pushed him.” An objection by defendant was overruled at this point.

¶ 9 Kathy told defendant to “get the heck out.” Defendant stated that he was not going

anywhere. They argued; then, defendant punched Kathy in the face. Next, defendant turned

around, picked up a glass of milk, and threw it in Caden’s face. Caden started crying again.

Kathy stated that, though it was painful when defendant hit her, she did not sustain any

visible injuries. Caden remained near the wall throughout this altercation. Kathy took Caden

and cleaned him up; defendant returned to the bedroom. Initially, Kathy did not contact the

police; however, she later called them using Corey’s cell phone, as defendant had broken the

house phone.

¶ 10 During cross-examination, Kathy testified that it was about 9 or 9:30 a.m. when she made

breakfast for Caden. The altercation took place between 20 and 30 minutes later. She

acknowledged that she did not call the police until after 7 p.m. She stated that Caden was not

physically 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 heard a crash. He started to get up, but then Kathy came

running by. Corey could see into the dining room. He saw Kathy and defendant argue; then,

Kathy gave considerable additional testimony on both direct and cross-examination

1

regarding eventsthat transpired over the course of the day. As this testimony does not shed any light

on the issues presented in this appeal, we will not recount it here.

-3-
defendant punched Kathy and threw milk in Caden’s face. Caden was upset and crying.

Defendant and Kathy argued periodically throughout the day. Eventually, the police were

called. On cross-examination, Corey stated that he did not speak with the police when they

arrived. He agreed that, while he did see Caden on the floor, he did not see how Caden got

there. He “just heard the noise.” Corey acknowledged that his relationship with defendant

is poor.

¶ 12 Finally, the State called Dodd. At about 7:30 p.m. on August 22, 2010, he and Welsh

were dispatched to 1712 Tenth Street. Dodd spoke with Kathy, and Welsh spoke brieflywith

Caden. They entered the house to look for defendant, but defendant was not there. They left

to look for defendant elsewhere. Subsequently, they returned and apprehended defendant.

¶ 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 read it back to her to verify that the

information was correct. Kathy signed the statement. Dodd did not write down “every single

detail.” During cross-examination, Dodd stated that he did not observe any injuries to Kathy

or any signs of a struggle in the house. When Dodd first encountered defendant, defendant

was “quiet, collected and cooperative.” Following Dodd’s testimony, the State rested and the

defense did as well.

¶ 14 Following the trial, defendant was acquitted of the first count but convicted on the latter

two. The trial court sentenced defendant on only the third count, finding that the facts

underlying counts II and III were “practically simultaneous.” Defendant was sentenced to

three years’ imprisonment and four years’ mandatory supervised release. This appeal

followed.

¶ 15 III. ANALYSIS

¶ 16 On appeal, defendant raises two issues. First, he alleges error in that the record does not

show a proper waiver of his right to a bench trial. Second, he argues that Kathy’s testimony

that Caden told her that defendant had pushed him violated his rights under the confrontation

clause. U.S. Const., amend. VI. We disagree with both contentions.

¶ 17 A. Waiver of Defendant’s Right to a Bench Trial

¶ 18 Defendant first argues that we should reverse and remand for a new trial because the

record does not disclose that he made a knowing, voluntary, and intelligent waiver of his

right to a bench trial. In Illinois, a criminal defendant has a state constitutional right to a

bench trial. People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 222 (1988). However, we are

aware of no case, rule, or statute that requires that the record must show that the waiver of

this right is knowing, voluntary, and intelligent. Defendant calls our attention to no such

authority. Instead, defendant relies on case law regarding the waiver of a defendant’s right

to a jury trial, asserting that the right to a bench trial should be accorded equal dignity.

Whether a defendant must make a knowing, voluntary, and intelligent on-the-record waiver

of the right to a bench trial presents a question of law and is therefore subject to de novo

review (In re R.A.B., 197 Ill. 2d 358, 362 (2001)).

-4-
¶ 19 Unquestionably, the right to a trial by jury is fundamental. Blakely v. Washington, 542

U.S. 296, 305-06 (2004) (the right to a jury trial “is no mere procedural formality, but a

fundamental reservation of power in our constitutional structure”); People v. McGhee, 2012

IL App (1st) 093404, ¶ 24 (“Like the right to a trial by an unbiased jury, the right to a

unanimous verdict is among the most fundamental of rights in Illinois.”). Accordingly, any

waiver of this right must be knowing, voluntary, and intelligent. See People v. Todd, 178 Ill.

2d 297, 316 (1997). Moreover, “[i]t is axiomatic that the waiver of the right to a trial by jury

cannot be presumed from a silent record.” People v. Witt, 227 Ill. App. 3d 936, 944 (1992).

Defendant argues that in Illinois the right to a bench trial should be accorded equal dignity.

¶ 20 To this end, defendant sets forth language from Illinois cases purporting to show the

fundamental nature of the bench-trial right. For example, in People v. Gersch, 135 Ill. 2d

384, 392 (1990), our supreme court observed that “the constitutional right to a bench trial in

Illinois has existed since statehood.” In Joyce, 126 Ill. 2d at 222, the court stated:

“The dimension of our constitutionally protected right to a trial by jury under the 1870

constitution is clear under the Fisher and Spegal analyses, and clearly encompassed the

right of an accused to waive trial by jury. That right, as it was understood and enjoyed

by the people of this State (‘heretofore enjoyed’), was adopted and incorporated in our

1970 constitution. Short of a constitutional amendment to that effect, the legislature

cannot now deprive an accused in Illinois of any part of that constitutionally protected

right.”

Similarly, in People v. Hoffman, 379 Ill. 318, 321 (1942), the supreme court observed that

“[t]he right to a trial by an impartial judge where a jury is waived is equally guaranteed and

safeguarded by the constitution.”

¶ 21 However, even if the right to a bench trial is of stature equal to the right to a jury trial,

it does not automatically follow that the procedures used to safeguard those rights must be

the same. In People v. Powell, 281 Ill. App. 3d 68, 73 (1996), the Fourth District of this

appellate court explained that the onus to assert the right to a bench trial is on a criminal

defendant:

“[A] jury trial is the norm for a felony case and a bench trial is the exception; therefore,

a defendant who wishes a bench trial instead of a jury trial must make his position known

to the trial court if his trial attorney fails to do so. If a defendant fails to speak out, as

here, to make his desire for a bench trial known when the trial court begins the process

of selecting and impaneling a jury, we will not entertain his later, after-the-fact claim that

he really wanted a bench trial all along.

In support of this holding, we note that both the federal and Illinois Constitutions

explicitly speak of a defendant’s right to a jury trial, but neither speaks of a defendant’s

right to a bench trial. See U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. [ ]Indeed,

we note that defendants in federal criminal proceedings have no such right; instead,

bench trials occur only if the defendant’s request for a jury waiver has ‘the approval of

the court and the consent of the government.’ Fed. R. Crim. P. 23(a). Further, we note

that section 115-1 of the Code of Criminal Procedure of 1963 indicates that a jury trial

shall be the norm and a bench trial the exception by providing as follows: ‘All

-5-
prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court

and a jury unless the defendant waives a jury trial in writing.’ 725 ILCS 5/115-1 (West

1992). 

Even at its most efficient, the process of selecting a jury in a criminal case takes a

considerable amount of time–usually at least an hour or more. A defendant sitting in a

courtroom watching this process could hardly be confused as to what is taking place.

Thus, we have no sympathy for this defendant or any other who sits through that entire

process and–while supposedly wishing for a bench trial–says nothing to the trial court

even though, as defendant claims here, his trial counsel has failed to request a bench trial

in accordance with defendant’s wishes.

The argument defendant makes here could be made in every case in which a

defendant is convicted by a jury and the trial court did not explicitly inquire of defendant,

before or during the jury selection process, whether he in fact wished to have a jury trial.

We decline to impose on the trial courts the burden of making such inquiries, both

because those courts are already sufficiently burdened with other, important procedural

concerns and because imposing such a burden would be unwarranted.” (Emphases in

original.)

We find this reasoning persuasive here.

¶ 22 Moreover, we note that, where mutually exclusive, competing rights are involved,

requiring admonishments can present certain problems. For example, a trial court need not

advise a defendant of his or her right to testify nor must it obtain an on-the-record waiver of

that right. People v. Davis, 378 Ill. App. 3d 1, 11 (2007). A defendant, of course, also has a

right to refuse to testify. People v. Vaughn, 354 Ill. App. 3d 917, 924 (2004). Whether to

advise a defendant regarding these rights is a matter within the discretion of the trial court.

People v. Peden, 377 Ill. App. 3d 463, 471 (2007). However, a judge choosing to admonish

a defendant on this subject must refrain from crossing into the realm of advocacy and not

influence the defendant’s decision regarding whether to testify. See Vaughn, 354 Ill. App.

3d at 925-26. The trial court “must be careful to issue admonishments regarding selfincrimination and the right not to testify without impairing the defendant’s ability to present

his defense.” Peden, 377 Ill. App. 3d at 471. Many of the same concerns apply here; a judge

admonishing a defendant regarding his right to a bench trial might well influence the

defendant’s decision regarding whether to exercise his or her right to a jury trial.

¶ 23 Indeed, our supreme court has set forth several reasons why a trial court need not

admonish a defendant regarding his right to testify:

“ ‘At least seven reasons have been given for this conclusion: First, the right to testify

is seen as the kind of right that must be asserted in order to be recognized. [Citation.]

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 afterthought after conviction. [Citation.] Third, by

advising the defendant of his right to testify, the court could influence the defendant to

waive his right not to testify, “thus threatening the exercise of this other, converse,

constitutionally explicit and more fragile right.” [Citation.] Fourth, a court so advising

a defendant might improperly intrude on the attorney-client relation, protected by the

-6-
Sixth Amendment. [Citation.] Fifth, there is danger that the judge’s admonition would

introduce error into the trial. [Citation.] Sixth, it is hard to say when the judge should

appropriately advise the defendant–the judge does not know the defendant is not

testifying until the defense rests, not an opportune moment to conduct a colloquy.

[Citation.] Seventh, the judge should not interfere with defense strategy. [Citation.]’ ”

(Emphases in original.) People v. Smith, 176 Ill. 2d 217, 235 (1997) (quoting United

States v. Martinez, 883 F.2d 750, 760 (9th Cir. 1989)).

Not all of these considerations apply here, but many do. First, as noted in Powell, this right

likewise must be asserted. As for the second factor, we believe that a post hoc claim that a

defendant actuallywanted a bench trial would be similarlyproblematic. Powell, 281 Ill. App.

3d at 73 (“If a defendant fails to speak out, as here, to make his desire for a bench trial known

when the trial court begins the process of selecting and impaneling a jury, we will not

entertain his later, after-the-fact claim that he really wanted a bench trial all along.”). Like

the third factor, advising a defendant regarding a bench trial could discourage the exercise

of the constitutionally explicit right to a jury trial. Id. (“[W]e note that both the federal and

Illinois Constitutions explicitly speak of a defendant’s right to a jury trial, but neither speaks

of a defendant’s right to a bench trial.” (Emphases in original.)). As discussed above, there

is a risk that a judge could assume the role of advocate and interfere with defense counsel’s

representation, as suggested by the fourth and seventh factors. Finally, the danger of error,

as the fifth factor sets forth, would also seem to be present. Thus, as with whether to

admonish a defendant regarding his or her right to testify, we hold that whether to admonish

a defendant regarding his or her right to a bench trial is a matter within the trial court’s

discretion. It is a right that a defendant must assert. Accordingly, there is no need to obtain

an on-the-record waiver of this right. As such, defendant’s position in this case is untenable.

¶ 24 B. Crawford Violation

¶ 25 Defendant next alleges a violation of the rule set forth in Crawford, 541 U.S. 36.

Crawford forbids the admission of testimonial hearsayunless the declarant is unavailable and

the defendant had a previous opportunity to cross-examine the declarant. People v. Ingram,

382 Ill. App. 3d 997, 1001-02 (2008). Defendant contends that the admission of Kathy’s

testimony that Caden told her that defendant had pushed him was error. Resolution of this

argument turns on whether Caden’s statement was testimonial.

¶ 26 Generally speaking, a statement is testimonial if it is solemn and intended to establish

some fact, like the testimony of a witness at a trial who is recounting past events. People v.

Stechly, 225 Ill. 2d 246, 281-82 (2007). Statements about fault and identity are typically

deemed testimonial. See People v. Purcell, 364 Ill. App. 3d 283, 297 (2006). However,

statements made during the course of an ongoing emergency constitute an exception to this

general rule. People v. Lisle, 376 Ill. App. 3d 67, 81 (2007); see also Davis v. Washington,

547 U.S. 813, 827 (2006) (“[T]he nature of what was asked and answered in Davis, again

viewed objectively, was such that the elicited statements were necessary to be able to resolve

the present emergency, rather than simply to learn (as in Crawford) what had happened in

the past. That is true even of the operator’s effort to establish the identity of the assailant, so

-7-
that the dispatched officers might know whethertheywould be encountering a violent felon.”

(Emphasis in original.)). Indeed, the Supreme Court, considering whether a statement made

during the course of a 911 call was testimonial, observed that, while “one might call 911 to

provide a narrative report of a crime absent any imminent danger, [the declarant’s] call was

plainly a call for help against a bona fide physical threat.” (Emphasis in original.) Davis, 547

U.S. at 827. The declarant was facing an ongoing emergency. Id. The primary purpose of the

statement was to meet that emergency. Id. at 828. In other words, it was not testimonial. Id.

¶ 27 Caden’s statement was similarly intended to meet an ongoing emergency, namely, two

incidents of domestic battery. It occurred between the points at which defendant pushed his

chair over and defendant threw milk in his face.Specifically, according to Kathy’s testimony:

(1) defendant yelled at Caden and Kathy heard a “thump” (presumably Caden being pushed

to the floor); (2) Kathy entered the room and saw Caden on the floor, crying; (3) Kathy asked

what had happened and Caden explained how he had come to be lying on the floor; (4) Kathy

told defendant to leave; (4) defendant refused and they argued; (5) defendant threw milk in

Caden’s face; and (6) Caden started crying again. Thus, Caden’s statement occurred during

a fast-paced confrontation and it concerned a threat to Caden’s well being. As such, the

statement was not testimonial. See Lisle, 376 Ill. App. 3d at 81 (“[The declarant] would,

undoubtedly, have anticipated that identifying his assailant to his aunt would allow his aunt

to take precautionary measures should the assailant also arrive at her residence. Therefore,

[the declarant’s] statement *** was nontestimonial in nature.”). In sum, defendant’s rights

under the confrontation clause (U.S. Const., amend. VI) were not violated.

¶ 28 IV. CONCLUSION

¶ 29 In light of the foregoing, the judgment of the circuit court of Winnebago County is

affirmed.

¶ 30 Affirmed.

-8-