2020 IL App (2d) 180229
No. 2-18-0229
Opinion filed September 28, 2020
Modified upon denial of rehearing January 13, 2021
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
)
v. ) No. 17-CM-114
)
LAWRENCE RICKY BUSCH, ) Honorable
) John F. McAdams,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices McLaren and Bridges concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, the defendant, Lawrence Ricky Busch, was convicted of two
counts of domestic battery (720 ILCS 5/12-3.2(a)(1), (2) (West 2016)) and sentenced to 90 days
in jail and 24 months of probation. On appeal, the defendant argues that he was deprived of a fair
trial because the trial court improperly admitted hearsay statements made by the alleged victim,
Melissa Scholl, who did not testify at trial. We reverse and remand for additional proceedings.
¶2 I. BACKGROUND
¶3 On March 7, 2017, the State charged the defendant with two counts of domestic battery
and one count of interfering with the reporting of domestic violence (720 ILCS 5/12-3.5 (West
2020 IL App (2d) 180229
2016)). The charges alleged that on March 6, 2017, the defendant knowingly caused bodily harm
to Scholl by striking her body with a belt and hitting her in the face. The charges further alleged
that the defendant attempted to prevent Scholl from calling 911.
¶4 A. Pretrial Proceedings
¶5 On October 25, 2017, the defendant’s case was set for a bench trial on December 20, 2017.
Thereafter, the Kane County Sheriff’s Department made three unsuccessful attempts to personally
serve Scholl with a subpoena to appear in court on the trial date. On December 7, 2017, the sheriff’s
department provided Scholl with abode service at Hesed House, a homeless shelter in Aurora
where she occasionally resided. The sheriff’s department’s notes regarding its attempts to serve
Scholl included the following comments: (1) the “last time [Scholl] was here was last night,”
(2) she “may or may not show up,” (3) her presence was “hit or miss,” and (4) she “is homeless
[and] comes and goes from the shelter.”
¶6 On December 19, 2017, the day before the trial was to begin, the State filed a motion to
continue due to its inability to contact Scholl. In its motion, the State indicated that, since the
setting of trial in the case, its attempts to contact Scholl had been unsuccessful. The State further
stated that it had been “recently informed as to the victim’s uncooperativeness to prosecute the
case.” The State additionally stated that other witnesses had come to light who would be needed
for trial but whom it had not yet had the opportunity to notify or subpoena. The State therefore
requested additional time to contact more witnesses. Over defense counsel’s objection, the trial
court granted the motion to continue and set the trial for January 17, 2018.
¶7 On January 2, 2018, Scholl was personally served and subpoenaed to appear at trial on
January 17, 2018.
¶8 B. Bench Trial
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¶9 Before the trial began, the State informed the trial court that, under section 115-10.2a of
the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.2a (West 2016)), Scholl was
unavailable to testify and, therefore, it would seek to introduce her prior statements through other
witnesses. The trial court agreed that Scholl was an unavailable witness “who ha[d] been served,
refused to come to court, despite a court order to do so, and [that] there have been prior attempts
by the Kane County Sheriff’s Department to have her served.” The trial court concluded that
Scholl’s persistent refusal to testify satisfied the unavailability as a witness requirement under
section 115-10.2(c) of the Code (725 ILCS 5/115-10.2(c) (West 2016)).
¶ 10 At trial, the State presented a recording of a 911 call that was made after the crimes
occurred and testimony of Scholl’s statements to law enforcement officers, Hesed House employee
Debbie Harrington, and Hesed House resident Cat Wysocki.
¶ 11 1. Scholl’s Statements to the 911 Operator
¶ 12 Harrington, a 16-year employee of Hesed House, testified that on March 6, 2017, shortly
before 11 a.m., an unidentified Hesed House guest told her that someone needed help outside.
Harrington went outside and spoke to Scholl, who was sitting at a picnic table under a canopy. It
seemed to Harrington as if something traumatic had happened to Scholl, because she was “shaking
quite badly,” it appeared that it “was very hard for her to sit,” she was crying, and she was unable
to put a sentence together.
¶ 13 Harrington asked Scholl if she needed an ambulance, but Scholl responded that she did not
want one. Harrington then called 911 because she believed that “it was obvious a traumatic event
had happened to” Scholl and Scholl needed help. Harrington called even though Scholl had not
asked her to.
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¶ 14 When the State asked Harrington what Scholl said to the 911 operator, defense counsel
objected on the grounds of both testimonial hearsay and ordinary hearsay, arguing that when the
911 call was made Scholl was not under an imminent threat that required an immediate response.
The trial court disagreed, finding that Scholl’s hearsay statement was admissible because it
constituted an excited utterance. The trial court explained that Scholl was “still within the clutches
of the traumatic event to allow it to be admissible as an exception to the hearsay rule[.]”
¶ 15 Harrington then testified that Scholl told the 911 operator that she had been in a motel and
that she was beaten with a belt. Harrington could not remember which motel Scholl named to the
operator. Harrington testified that Scholl told the operator that the defendant was the person who
injured her.
¶ 16 The trial court then, over defense counsel’s objection, admitted into evidence the call to
the 911 operator. The trial court again found that Scholl’s statement to the 911 operator was an
excited utterance.
¶ 17 In the recording of the 911 call, the operator asked Scholl a series of questions. When the
operator asked what happened, Scholl responded that she had been beaten with a belt all night.
After the operator asked who had beaten her, Scholl identified the defendant and said that he was
staying at the Council Court Motel in Room 11. When asked if she needed an ambulance, Scholl
responded, “No, no, I just want to report it.” Scholl informed the operator that, after she had started
walking, a “guy” saw her crying and drove her to Hesed House. When asked by the operator if the
defendant had been drinking, had used drugs, had weapons, or had a car, Scholl responded with
“no.” The operator then informed Scholl that they would send an officer to talk with her before
going to Council Court to talk with the defendant.
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¶ 18 After the 911 call, Harrington took Scholl into an office at Hesed House to wait for the
police.
¶ 19 2. Scholl’s Statements to Harrington in the Office After the 911 Call
¶ 20 While they waited for the police, Harrington asked Scholl what happened. Scholl lifted up
the back of her shirt and revealed red welts. Scholl told her that the defendant had caused those
injuries with a belt. Scholl again refused an ambulance. Harrington had no further conversation
with Scholl before the police arrived. Defense counsel objected to Harrington’s testimony, but the
trial court found that it was admissible pursuant to section 115-10.2 of the Code. 1
¶ 21 3. Scholl’s Statements to Wysocki
¶ 22 Wysocki testified that she saw Scholl walking up some stairs at Hesed House around 11
a.m. on March 6, 2017. Wysocki stated that Scholl was walking “very gingerly” as if she “fell or
got hit or something” and that “her eyes were all puffy, and she had been crying.” Over defense
counsel’s objection, Wysocki testified that Scholl told her that the defendant had whipped her with
a belt. About an hour after she first talked to Scholl, Wysocki talked to her again. Scholl lifted up
her shirt and asked Wysocki how it looked. Wysocki observed red welts and lines on Scholl’s
back. Scholl told her that they were “from the belt.”
¶ 23 4. Testimony of Law Enforcement Officers
¶ 24 Officer John Collins of the Kendall County Sheriff’s Office testified that, around 11 a.m.
on March 6, 2017, he went to Hesed House in response to a domestic battery report. He spoke with
Scholl, who appeared to be crying and upset, in a private room. He observed several red marks on
1
Later, the State clarified that it was relying not on section 115-10.2 but on section 115-
10.2a, as it did in its pretrial arguments.
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her arms and injuries to her legs, back, and lip. Scholl was moving slowly and seemed to be in
pain. She appeared to be intoxicated, as she smelled of alcohol and her eyes were bloodshot and
glassy. Scholl told him that she received a ride to Hesed House from either a friend or a random
person.
¶ 25 During the course of his investigation, Officer Collins asked Scholl to write a statement
describing the incident that caused her injuries. The State moved to admit the written statement on
the ground that it was admissible under the unavailability-of-the-witness exception to the hearsay
rule, pursuant to section 115-10.2a, and, further, that the statement was not testimonial. The trial
court sustained the defense counsel’s objection, finding that the written statement was testimonial
and made for the purpose of furthering criminal prosecution, thereby violating the confrontation
clause of the sixth amendment to the United States Constitution (U.S. Const., amend.VI). Thus,
the written statement was not admitted at trial.
¶ 26 Officer Collins also testified that he went to the Council Court Motel to speak with the
defendant. The defendant, who smelled of alcohol, was angry and upset. The defendant stated that
Scholl, who had been living with him since November 2016, had cheated on him.
¶ 27 Officer Rose O’Brien from the Aurora Police Department testified that she photographed
Scholl’s injuries on March 6, 2017. She observed more than 100 marks on Scholl’s body. The
photographs, which were admitted into evidence, depict red and black and blue marks to Scholl’s
arms, legs, torso, and back.
¶ 28 5. Testimony of Clint Patterson and the Defendant
¶ 29 The defendant testified that, on March 5, 2017, around 5 p.m., he and Scholl, who had been
living with him for about five months, went to Clint Patterson’s room in Unit 12 to drink beer.
They each had about three beers. The defendant and Scholl returned to their room between 7 p.m.
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and 8:30 p.m. and went to sleep. At 11 p.m., he woke up alone. He went to Patterson’s room
looking for Scholl, but she was not there. He did not look for her further because neither he nor
Scholl had a car. Soon thereafter, he received a call from a man saying that he was bringing Scholl
back to the motel. Believing that Scholl was cheating on him, the defendant told the man that he
should keep her.
¶ 30 The defendant stated that Scholl returned to the room around 1 a.m. on March 6, 2017. She
appeared to be drunk. He told her that she could sleep on the floor that night but that she could no
longer stay with him. She left about 15 minutes later, and he never saw her again. The defendant
denied causing any bruises to or making any physical contact with Scholl on the evening of March
5 or in the morning of March 6.
¶ 31 Patterson testified that the Council Court Motel was an old building and that he could hear
sound coming through the wall he shared with the defendant. He did not hear screams or anything
else on the night at issue that raised his suspicion. He did hear the defendant tell Scholl to leave at
some point during the night, but he could not narrow down the time.
¶ 32 C. The Decision and the Sentence
¶ 33 At the close of trial, both the State and the defendant presented their closing arguments.
The trial court reserved its ruling on a decision in order to revisit its finding on whether Scholl was
unavailable under section 115-10.2 of the Code (725 ILCS 5/115-10.2 (West 2016)), stating that
“the guilt or innocence of the defendant relies very heavily on the admissibility or inadmissibility
of those out-of-court statements.” At that point, the State clarified for the trial court that it was
relying on section 115-10.2a of the Code, not section 115-10.2. The trial court ordered both parties
to conduct research into both statutory hearsay exceptions.
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¶ 34 On February 1, 2018, following a hearing, the trial court found that Scholl’s statements
were admissible pursuant to section 115-10.2a. The trial court then found the defendant guilty of
the two counts of domestic battery. The trial court explained that Harrington’s testimony was “very
credible” and that the “facts and circumstances that surrounded the statements by the victim, the
hearsay statements, were reliable.” The trial court acquitted the defendant of the one count of
interfering with the reporting of domestic violence.
¶ 35 Following the denial of the defendant’s motion for a new trial, the trial court sentenced the
defendant to 90 days in jail and 24 months’ probation. The defendant thereafter filed a timely
notice of appeal.
¶ 36 II. ANALYSIS
¶ 37 On appeal, the defendant argues that, because Scholl did not testify at trial, the trial court
erred in admitting her Scholl’s out-of-court statements. The defendant contends that, because the
entirety of the State’s case was based on Scholl’s alleged statements, the trial court’s improper
admission of those statements deprived him of a fair trial. Specifically, the defendant contends that
the following evidence should not have been admitted: (1) the 911 recording, (2) Harrington’s
testimony about Scholl’s statements to the 911 operator, (3) Harrington’s testimony about Scholl’s
statements to Harrington in the office after the 911 call, and (4) Wysocki’s testimony about
Scholl’s statements to her.
¶ 38 Although the trial court expressed confusion as to whether section 115-10.2 or section 115-
10.2a of the Code applied to the case, we believe that it is clear that section 115-10.2a applies.
Section 115-10.2a allows for the admission of prior statements in domestic violence prosecutions.
Section 115-10.2a(a) states, in pertinent part, that a statement made by an individual, which is “not
specifically covered by any other hearsay exception but having equivalent circumstantial
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guarantees of trustworthiness, is not excluded by the hearsay rule if the declarant is identified as
unavailable as defined in subsection (c).” 725 ILCS 5/115-10.2a(a) (West 2016). Section 115-
10.2a(c) defines unavailability in pertinent part as follows:
“(2) persists in refusing to testify concerning the subject matter of the declarant’s
statement despite an order of the court to do so; or
***
(5) is absent from the hearing and the proponent of the statement has been unable
to procure the declarant’s attendance by process or other reasonable means[.]” 725 ILCS
5/115-10.2a(c)(2), (5) (West 2016).
¶ 39 Thus, a statement is admissible under section 115-10.2a if (1) it is not subject to any other
hearsay exception, (2) the declarant is unavailable, and (3) it is accompanied by equivalent
circumstantial guarantees of trustworthiness.
¶ 40 A. Other Hearsay Exception Under Section 115-10.2a
¶ 41 We first consider whether any of the statements at issue are “not specifically covered by
any other hearsay exception.” 725 ILCS 5/115-10.2a(a) (West 2016). The trial court found that
two of the statements at issue—Scholl’s statements in the recording of the call to the 911 operator
and Harrington’s testimony regarding those statements—were admissible because they constituted
an excited utterance. For a statement to be admissible as an excited utterance, three factors must
be present: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting
statement, (2) an absence of time to fabricate, and (3) a statement relating to the circumstances of
the occurrence. See People v. Lerma, 2016 IL 118496, ¶ 5 n.1; People v. DeSomer, 2013 IL App
(2d) 110663, ¶ 12. Courts use a “totality-of-the-circumstances analysis to decide whether a
statement is admissible under the excited-utterance exception.” DeSomer, 2013 IL App (2d)
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110663, ¶ 12. The key inquiry is “whether the statement was made while the excitement of the
event predominated.” (Internal quotation marks omitted.) People v. Sutton, 233 Ill. 2d 89, 107
(2009). This court has found a statement to be spontaneous when the occurrence happened within
the past few minutes and the statement was made to the first person the declarant encountered,
rather than in response to questioning. DeSomer, 2013 IL App (2d) 110663, ¶ 13. An intervening
discussion between an occurrence and a statement a party seeks to admit as an excited utterance
destroys the spontaneity of the statement and might cause the declarant to reflect on the statement,
moving it outside the realm of the excited-utterance exception. See People v. Victors, 353 Ill. App.
3d 801, 810 (2004); People v. Sommerville, 193 Ill. App. 3d 161, 175 (1990).
¶ 42 Here, Scholl’s statements to the 911 operator did not constitute an excited utterance,
because she spoke to several people before she made the statements to the operator. See Victors,
353 Ill. App. 3d at 810 (victim’s statements to police officer did not fall under the excited utterance
exception, due to the intervening conversation with a backup officer); Sommerville, 193 Ill. App.
3d at 175 (victim’s previous discussion with her fiancé destroyed the spontaneity of any statement
given to the police officer). Therefore, the trial court erred in admitting as an excited utterance the
recording of those statements as well as Harrington’s testimony regarding the statements.
¶ 43 Relying on People v. Damen, 28 Ill. 2d 464, 472 (1963) the State argues that statements
made in response to questioning from a 911 operator do not lessen their spontaneous nature and
may still be considered spontaneous utterances. We do not disagree with that proposition.
However, the reason that the statements at issue here lack spontaneity is not because the 911
operator asked Scholl questions—they lack spontaneity because Scholl talked to several people
before she talked to the 911 operator.
¶ 44 B. Unavailability Under Section 115-10.2a
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¶ 45 We next consider the trial court’s determination that Scholl was unavailable. The trial court
found that Scholl was unavailable because she persistently refused to testify. See 725 ILCS 5/115-
10.2a(c)(2) (West 2016). To persist means to continue steadfastly or firmly in a course of action.
See Dictionary.com, https://www.dictionary.com/browse/persist?s=t www.dictionary.com (last
visited Sept. 2, 2020) [https://perma.cc/94S9-BN94]. Thus, “to persist” conveys the idea that one
is repeatedly doing something. Here, although the record indicates that the State tried to serve
Scholl numerous times, the record does not establish that she received notice more than once.
Based on the record before us, we cannot say that Scholl’s failure to appear after being served once
constitutes a persistent refusal to testify. Cf. People v. Wilson, 331 Ill. App. 3d 434, 438 (2002)
(witness was found to have persistently refused to testify where he appeared in court, said that he
would not testify, and, after being admonished to stay in the courthouse, left the building).
¶ 46 Nonetheless, we review the trial court’s ruling, not its reasoning. See City of Chicago v.
Holland, 206 Ill. 2d 480, 492 (2003) (a reviewing court can sustain the decision of the circuit court
on any grounds called for by the record, regardless of whether the circuit court relied on the
grounds and regardless of whether the circuit court’s reasoning was sound). We therefore consider
the State’s argument that the trial properly determined that Scholl was unavailable pursuant to
section 115-10.2a(c)(5) because the State served Scholl with process yet she still failed to appear
at the hearing.
¶ 47 The defendant insists that the State had to do more than just serve Scholl with process
before the trial court could find that she was unavailable. The defendant notes that section 115-
10.2a(c)(5) provides that a declarant may be found to be unavailable if the State is unable to obtain
her attendance “by process or other reasonable means.” (Emphasis added.) 725 ILCS 5/115-
10.2a(c)(5) (West 2016). The defendant points out that sometimes “or” can also mean “and.” See
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People v. Tousignant, 2014 IL 115329, ¶ 11 (explaining that the word “or” is not disjunctive in all
circumstances); County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 606 (2008)
(explaining that “and” and “or” are used interchangeably depending on the context). The defendant
urges us to find that “or” in section 115-10.2a(c)(5) actually means “and.” As such, the defendant
maintains that the State’s failure to do anything other than serve Scholl with process precludes a
finding that she was unavailable to testify at trial.
¶ 48 The defendant’s argument presents an issue of statutory interpretation. A court conducts
de novo review when the case involves issues of statutory interpretation. County of Du Page, 231
Ill. 2d at 603; People v. Hall, 195 Ill. 2d 1, 21 (2000). When interpreting a statute, a court’s primary
objective is to ascertain and give effect to the intent of the legislature. People v. Webb, 2019 IL
122951, ¶ 17. The most reliable indicator of that intent is the language of the statute itself, which
must be given its plain and ordinary meaning. Id.; People v. Baskerville, 2012 IL 111056, ¶ 18.
The word “or” is generally disjunctive, and the word “and” is generally conjunctive. Tousignant,
2014 IL 115329, ¶ 11. As used in its ordinary sense, the word “or” “connotes two different
alternatives.” Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 145 (2006).
¶ 49 Pursuant to section 115-10.2a(c)(5) of the Code, the State was required to show that it was
“unable to procure [Scholl’s] attendance by process or other reasonable means.” 725 ILCS 5/115-
10.2a(c)(5) (West 2016). The phrase “or other reasonable means” conveys that what preceded the
term “or” was also reasonable. Thus, the issue becomes whether service by process alone was
reasonable. We believe that this answer turns on the individual facts of the case, as in some cases
process alone would be reasonable while in others it would not be. For example, we believe that
service by process alone would be reasonable if the witness affirmatively indicated that she had
no interest in attending the trial. It would be unreasonable to require the State to take other steps
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at that point, where the witness has indicated that those steps would be fruitless. See Wilson, 331
Ill. App. 3d at 438. Conversely, we do not believe that process alone would be sufficient where
the witness has not demonstrated a desire not to attend and other factors existed, such as an inability
to attend due to transportation issues, that could interfere with her ability to be present at the trial.
¶ 50 Here, the trial court found that Scholl was unavailable, because she “refused to come to
court.” This was consistent with the State’s representations that Scholl had indicated that she was
unwilling to cooperate in prosecuting the case. As Scholl had affirmatively indicated her
unwillingness to participate in the defendant’s trial, the State was not required to take additional
steps to secure her presence at trial. The trial court therefore did not err in determining that Scholl
was unavailable to testify at trial. See id.
¶ 51 The defendant points out that Scholl herself never indicated that she was unwilling to
testify at trial. Rather, the State relied on an anonymous source when it informed the trial court
that Scholl was unwilling to cooperate with the prosecution of the case. However, there is no
indication in the record that the State’s representation was untruthful. Based on the facts of this
case, where the declarant was difficult to contact due to her homelessness and she had not
demonstrated any interest in assisting the prosecution, we do not believe that the State was
obligated to have Scholl personally tell it that she did not want to participate in the trial.
¶ 52 C. Circumstantial Guarantees of Trustworthiness and Crawford
¶ 53 We next consider whether Scholl’s hearsay statements were accompanied by the
“equivalent circumstantial guarantees of trustworthiness” required under the statute. 725 ILCS
5/115-10.2a(a) (West 2016). The statute was originally enacted to comport with the confrontation-
clause requirements set forth in Ohio v. Roberts, 448 U.S. 56 (1980). In re Rolandis G., 232 Ill. 2d
13, 23 (2008).
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“Under Roberts, it was not a violation of the sixth amendment confrontation clause to admit
out-of-court hearsay statements into evidence as long as the statements were found to be
reliable, either because the evidence fell within a firmly rooted hearsay exception or
because there were other ‘particularized guarantees of trustworthiness.’ ” Id. at 24 (quoting
Roberts, 448 U.S. at 66).
However, Crawford v. Washington, 541 U.S. 36 (2004), overruled Roberts and altered the
approach to confrontation-clause analysis. People v. Stechly, 225 Ill. 2d 246, 264-65 (2007). Under
Crawford, a testimonial statement of a witness absent from trial is never admissible unless (1) the
witness is unavailable to testify and (2) the defendant had a prior opportunity for cross-
examination. Crawford, 541 U.S. at 53-54.
¶ 54 Under Crawford, Scholl’s statements were admissible at trial only if they were not
testimonial or if the defendant had a prior opportunity for cross-examination. As there was no prior
opportunity for cross-examination in this case, the only remaining inquiry is whether each
statement was testimonial. See Stechly, 225 Ill. 2d at 279 (the threshold question in confrontation-
clause analysis is whether the statements are testimonial). Whether a statement is testimonial is a
question of a law, subject to de novo review. Sutton, 233 Ill. 2d at 112. The determination of
whether a statement is testimonial “must be made on a case-by-case basis.” Stechly, 225 Ill. 2d at
296. We now consider each statement in turn.
¶ 55 1. Statements to the 911 Operator and Harrington’s Testimony Regarding That
Conversation
¶ 56 We believe that the recording of the 911 call and Harrington’s testimony regarding Scholl’s
statements to the 911 operator are analogous to the victim’s statements in Hammon v. Indiana,
which the United States Supreme Court held to be testimonial. See Davis v. Washington, 547 U.S.
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813, 830 (2006) (Hammon is the companion case to Davis). In Hammon, police officers responded
to a domestic disturbance and found the victim outside her house, appearing “somewhat
frightened.” (Internal quotation marks omitted.) Id. at 819. She told the officers that “nothing was
the matter” and her husband told the officers that he and the victim had “been in an argument” but
“everything was fine now.” (Internal quotation marks omitted.) Id. One officer interviewed the
victim while another interviewed her husband, keeping the two apart despite the husband’s
attempts to participate in the interrogation. Id. at 819-20. The officers then had the victim write an
affidavit describing the incident. Id. at 820.
¶ 57 On review, the Supreme Court held that the victim’s statements were testimonial. The
Supreme Court explained that there was no ongoing emergency and that the officers learned on
arrival that there was no immediate threat and did not ask the victim “ ‘what is happening,’ but
rather ‘what happened[?]’ ” Id. at 829-30. Here, the circumstances indicate that there was no
ongoing emergency or immediate threat. Harrington, not Scholl, placed the 911 call. The 911
operator knew that Scholl was at Hesed House, away from the defendant, and asked Scholl “what
happened?” not “what is happening?” When asked if she needed an ambulance, Scholl responded,
“No, no, I just want to report it.” The purpose of the call was neither to resolve an ongoing
emergency nor for Scholl to describe the events as they were still unfolding. See id. at 822
(statements are not testimonial when made in the course of police interrogation under
circumstances indicating that the primary purpose is to enable police assistance to meet an ongoing
emergency); see also People v. Dominguez, 382 Ill. App. 3d 757, 767-68 (2008) (statements to 911
dispatcher were not testimonial because the caller was facing an ongoing emergency and was
describing events as they were unfolding). Instead, Scholl’s statements to the 911 operator were
made to establish a record of a past event for future criminal prosecution. Therefore, we determine
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that these statements were testimonial. Scholl’s statements to the 911 operator, as well as
Harrington’s testimony regarding those statements, were inadmissible under Crawford.
¶ 58 2. Scholl’s Statements to Harrington After the 911 Call
¶ 59 In considering whether the statements that Scholl made to Harrington were testimonial, we
find instructive our supreme court’s analysis in Rolandis G., 232 Ill. 2d at 32-33. There, the State
sought to introduce evidence of a conversation between a child victim of sexual abuse and a child
advocate who was unavailable to testify at trial. Id. at 19. A police officer who observed the
interview from behind a one-way mirror testified as to the substance of the conversation and gave
a foundation for the introduction of a video recording of the interview. Id. at 19-20. On review,
our supreme court held that the statements made to the child advocate were testimonial and, thus,
inadmissible. Id. at 35-36.
¶ 60 The supreme court explained that, when a person acts as a representative of law
enforcement by interrogating another with the main purpose of gathering information about past
events for potential future prosecution, then the statements elicited are testimonial. Id. When the
statement is the product of questioning, either by the police or someone acting as a representative
of law enforcement, the objective intent of the questioner, not the declarant, is determinative. Id.
at 31. Four factors are considered in determining whether one is acting in tandem with law
enforcement: (1) whether the interrogator was obligated to work with the police, (2) whether the
interrogator actually worked in concert with the police, (3) what the primary purpose of the
questioning was, and (4) whether the interview was conducted in a safe place, with no indication
of an ongoing emergency. Id. at 35. The supreme court found the four factors present, stating that
the child advocate who interviewed the victim was required by law to share information with law
enforcement. Id. The child advocate worked in concert with the police, and the defendant was
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arrested after the interview took place. Id. There was no indication that the primary purpose of the
interview was for treatment or to stop an ongoing emergency. Id. at 35-36. Instead, the main
purpose of the interview “was to gather information about past events for potential future
prosecution.” Id. at 36.
¶ 61 Here, three out of the four factors apply. Harrington acted in concert with the police as she
was the one who initiated the police involvement when she called 911, even though Scholl had not
asked her to. Harrington then listened to Scholl’s conversation with the 911 operator and knew
that the police would be coming to talk to Scholl. Harrington then took Scholl to an office and
asked her questions similar to those that the 911 operator had asked, until the police arrived.
Specifically, Harrington asked Scholl what had happened. There was no indication that the purpose
of the conversation was for medical treatment or to stop an ongoing emergency, as Scholl again
refused an ambulance. This interrogation took place in a safe location, inside Hesed House and
away from the defendant at the motel. Viewed objectively, the purpose of Harrington’s
interrogation of Scholl was to establish a record about a past event to use for possible future
prosecution, thereby making the statements testimonial.
¶ 62 The State argues that Harrington cannot be deemed a representative of law enforcement,
because she is employed by Hesed House. See People v. Richter, 2012 IL App (4th) 101025,
¶¶ 123-135 (statements made to individuals other than government officials, or without
government involvement, are not testimonial). The State does not address or apply the Rolandis
G. factors. As stated previously, the determination of whether a statement is testimonial is made
on a case-by-case basis. Stechly, 225 Ill. 2d at 296. Because we find that Harrington acted as a law
enforcement representative under Rolandis G. and elicited testimonial statements from Scholl in
the office after the 911 call, her statements were inadmissible under Crawford.
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¶ 63 3. Scholl’s Statements to Wysocki
¶ 64 In determining whether the statements Scholl made to Wysocki were testimonial, we
consider whether those statements were (1) made in a solemn fashion and (2) intended to establish
a particular fact. See id. at 281-82. A solemn statement is made in a formal fashion, such as made
to a police officer, or if there are severe consequences for dishonesty. Id. at 281. When a statement
is made outside of police interrogation, the focus is on the declarant’s intent. Id. at 289.
¶ 65 Here, it is clear that Scholl’s statements to Wysocki were not made in a formal fashion.
There was no apparent threat of consequences if Scholl were to be dishonest to Wysocki when she
told her that the defendant had whipped her with a belt and she showed Wysocki the red welts on
her back. Further, Wysocki neither is a police officer nor acted as a representative of law
enforcement. Scholl’s statements to Wysocki were not testimonial statements made with the
primary purpose of establishing or proving past events potentially relevant to future criminal
prosecution. Davis, 547 U.S. at 822. Therefore, as the statements were not testimonial, the
confrontation clause places no restriction on their introduction (although they are still subject to
“traditional limitations upon hearsay evidence” (id. at 821)). Stechly, 225 Ill. 2d at 279.
¶ 66 In sum, all of the testimony that was admitted pursuant to section 115-10.2a of the Code,
other than Wysocki’s, was improper.
¶ 67 D. Harmless Error
¶ 68 We next consider the State’s argument that, despite the trial court’s evidentiary errors, we
should nonetheless affirm the trial court’s decision because those errors were harmless. When
deciding whether an error is harmless, a reviewing court may (1) focus on the error to determine
whether it might have contributed to the conviction, (2) examine the other properly admitted
evidence to determine whether it overwhelmingly supports the conviction, or (3) determine
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2020 IL App (2d) 180229
whether the improperly admitted evidence is merely cumulative or duplicates properly admitted
evidence. Rolandis G., 232 Ill. 2d at 43. An error will be found to be harmless only if it is proven
beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. People
v. Dean, 175 Ill. 2d 244, 259 (1997).
¶ 69 We cannot say beyond a reasonable doubt that the defendant would have been convicted
absent the trial court’s errors. The trial court acknowledged that the defendant was convicted on
the basis of hearsay testimony. As set forth above, the hearsay evidence consisting of the 911
recording and Harrington’s testimony was improperly admitted. The only hearsay evidence that
was properly admitted was Wysocki’s testimony. As the trial court’s comments indicate that it
placed the most weight on Harrington’s testimony, it is clear that its consideration of that
improperly admitted evidence contributed to the defendant’s conviction. Thus, the trial court’s
errors were not harmless. See Rolandis G., 232 Ill. 2d at 43; Dean, 175 Ill. 2d at 259. We therefore
reverse his conviction and remand for a new trial.
¶ 70 III. CONCLUSION
¶ 71 Our reversal of the defendant’s conviction raises the double jeopardy issue. The double
jeopardy clause of the United States Constitution prohibits the State from having another
opportunity to try a case unless it has in the first trial presented sufficient evidence to prove the
defendant guilty beyond a reasonable doubt. People v. Johnson, 2013 IL App (2d) 110535, ¶¶ 84-
86. Thus, before remanding for a new trial, to avoid double jeopardy, the appellate court must rule
upon the sufficiency-of-the-evidence issue. People v. Taylor, 76 Ill. 2d 289, 309 (1979). We have
carefully reviewed the record in the light most favorable to the prosecution and conclude that the
evidence sufficiently supports the trial court’s finding of guilt beyond a reasonable doubt. We
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2020 IL App (2d) 180229
therefore determine that jeopardy has not attached. Our determination, however, is not binding on
retrial and does not indicate this court’s opinion as to the defendant’s guilt or innocence.
¶ 72 For the reasons stated, we reverse defendant’s conviction and remand the cause for a new
trial.
¶ 73 Reversed and remanded.
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2020 IL App (2d) 180229
No. 2-18-0229
Cite as: People v. Busch, 2020 IL App (2d) 180229
Decision Under Review: Appeal from the Circuit Court of Kendall County, No. 17-CM-
114; the Hon. John F. McAdams, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, Anthony J. Santella, and
for Josette Skelnik, of State Appellate Defender’s Office, of Elgin, for
Appellant: appellant.
Attorneys Eric C. Weis, State’s Attorney, of Yorkville (Patrick
for Delfino, Edward R. Psenicka, and Katrina M. Kuhn, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
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People v. Busch
Court: Appellate Court of Illinois
Date filed: 2021-01-13
Citations: 2020 IL App (2d) 180229
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