dissenting:
In this case, the couple’s neighbor, Dina Perritano, testified that she observed defendant and Melissa screaming and yelling at each other outside their residence while Melissa was seated in the driver’s seat of her vehicle. Perritano observed defendant was standing in the open doorway of the vehicle, holding their son on his hip. During this verbal argument, Perritano heard Melissa threaten to call the police. Perritano did not observe any physical contact between the couple but called the police on her own initiative. Perritano estimated that the police arrived a few minutes later after defendant left with his son.
Jon Muehlbauer, a deputy with the Will County sheriff’s department, testified he arrived at the scene within five to seven minutes after he was dispatched to that location. He spoke to Melissa, who told him that defendant pulled her out of her vehicle and battered her about the head. The officer described her to be upset and nervous.
For the excited utterance exception to the hearsay rule to apply, “there must be an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, there must be an absence of time for the declarant to fabricate the statement, and the statement must relate to the circumstances of the occurrence.” People v. Sutton, 233 Ill. 2d 89, 107 (2009). In this case, I conclude that the events witnessed by the neighbor do not indicate that there was a sufficiently startling event or the required spontaneity to trigger this narrow and inflexible exception to the hearsay rule.
Generally, many people who speak to investigating officers are both upset and nervous. The excited utterance requires something more, that is, a sufficiently startling event to trigger a spontaneous declaration. Mere nervousness and anxiety are not enough.
Here, the neighbor’s testimony established that heated verbal altercations were not unusual for this couple and that the police officer arrived on the scene between 5 and 10 minutes after the couple separated. This time period would allow sufficient time for Melissa’s personal reflection, thereby negating the spontaneity of her responses to the officer’s questions. Based on the circumstances of this case, it is unclear whether Melissa was upset because her child had been removed from the area by his father or upset by the purported altercation.
In my view, the foundation for an excited utterance exception should not vary due to the domestic nature of the underlying offense or based on the reality that the State cannot prove its case without the statement. In this case, the State’s evidence neither satisfied the requirement that the occurrence in this case was startling for this declarant and also failed to establish there was not an opportunity for the declarant’s reflection. Thus, I have reached the conclusion that Melissa’s out-of-court statement to Muehlbauer constituted inadmissible hearsay and requires reversal of defendant’s conviction.
Next, based on my position as set forth above, I reject defendant’s contention that a retrial for domestic battery is barred based upon double jeopardy considerations. Double jeopardy does not prevent a retrial when a conviction is overturned due to an error in the trial. People v. Lopez, 229 Ill. 2d 322, 367 (2008). When deciding if the evidence was sufficient to sustain a conviction, for double jeopardy purposes, this court may consider all of the evidence admitted at trial, even the erroneously admitted evidence. If viewing all the evidence in the light most favorable to the State, a rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt, there is no double jeopardy bar to retrial. People v. Lopez, 229 Ill. 2d at 367.
In this case, Melissa told the police officer that defendant had pulled her out of the car and battered her about the head. Moreover, upon remand, Melissa could change her mind and elect to testify for the State in a fashion that is consistent with her out-of-court statements to the officer. Viewing all of the evidence, including the improperly admitted evidence, I conclude that a reasonable trier of fact could have found defendant guilty of domestic battery.
As for defendant’s conviction of endangering the life or health of a child, the State contends that retrial is not warranted because any error was harmless. Although there was sufficient evidence to sustain the conviction, the impact of the erroneous admission of Melissa’s statements to the officer cannot be considered harmless in this case. See People v. Stechly, 225 Ill. 2d 246 (2007).
Consequently, I would find the trial court abused its discretion by admitting the out-of-court statement as a spontaneous utterance, vacate both convictions, and remand the cause for a new trial on both charges.
For the foregoing reasons, I respectfully dissent.