2020 IL App (2d) 180229
Ill. App. Ct.2020Background
- Defendant Lawrence Busch was charged with two counts of domestic battery and one count of interfering with reporting; bench trial resulted in conviction on the two battery counts and sentence of 90 days jail + 24 months probation.
- Victim Melissa Scholl did not testify at trial; State sought to admit her out-of-court statements under 725 ILCS 5/115-10.2a as she was deemed unavailable.
- The State introduced a 911 recording and testimony recounting Scholl’s statements (from a Hesed House employee, Debbie Harrington, and resident Cat Wysocki); a written statement to police was excluded as testimonial.
- Trial court found Scholl unavailable (service by subpoena; alleged refusal to cooperate) and admitted most hearsay under section 115-10.2a; court credited Harrington’s testimony and convicted Busch.
- On appeal the court reviewed: (1) whether statements fit other hearsay exceptions (excited utterance), (2) whether Scholl was unavailable under 115-10.2a, and (3) whether the statements were testimonial under Crawford; it also considered harmless-error and double jeopardy implications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of 911 call (excited utterance / testimonial) | 911 statements were spontaneous/excited utterance and admissible | Statements were not excited utterance and were testimonial (Crawford) | Not an excited utterance (intervening contacts); statements were testimonial and inadmissible |
| Admissibility of Harrington’s recounting and post‑call questioning | Harrington’s testimony admissible under 115‑10.2a; not testimonial | Harrington acted with/for police; statements were testimonial | Harrington acted as law‑enforcement representative; her elicited statements were testimonial and inadmissible |
| Admissibility of Wysocki’s statements/observations | Admissible (non‑testimonial, equivalent trustworthiness) | Hearsay/testimonial challenge | Not testimonial (informal, not law‑enforcement interrogation); admissible under traditional hearsay rules |
| Was Scholl "unavailable" under 115‑10.2a(c)(5) where State served process only? | Service and indicia of uncooperativeness suffice given homelessness/difficulty contacting her | Service alone insufficient; State must use process AND other reasonable means | Service alone may suffice depending on facts; here court found she had indicated unwillingness and was hard to contact, so she was unavailable |
| Prejudice / Harmless‑error and retrial exposure | Any error harmless given other evidence | Admission of testimonial hearsay was prejudicial; conviction relied on that evidence | Errors were not harmless (trial court relied on Harrington); conviction reversed and remanded for new trial; court finds sufficient evidence to permit retrial |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements from absent witnesses require prior cross‑examination)
- Davis v. Washington, 547 U.S. 813 (2006) (distinguishes 911 statements made to address ongoing emergency from testimonial statements made to establish past events)
- Ohio v. Roberts, 448 U.S. 56 (1980) (pre‑Crawford reliability framework for out‑of‑court statements)
- In re Rolandis G., 232 Ill. 2d 13 (2008) (statements elicited by those acting with law‑enforcement purpose are testimonial)
- People v. Stechly, 225 Ill. 2d 246 (2007) (Crawford application in Illinois; testimonial inquiry)
- People v. Victors, 353 Ill. App. 3d 801 (2004) (intervening discussion can destroy spontaneity for excited‑utterance rule)
- People v. Sommerville, 193 Ill. App. 3d 161 (1990) (prior discussion can negate excited‑utterance spontaneity)
- People v. Wilson, 331 Ill. App. 3d 434 (2002) (persisting refusal to testify when witness appears and leaves supports unavailability)