People v. Axtell

2017 IL App (2d) 150518

96 N.E.3d 387

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Michael S. AXTELL, Defendant–Appellant.

No. 2–15–0518

Appellate Court of Illinois, Second District.

Opinion filed December 21, 2017

Rehearing denied March 5, 2018

Michael J. Pelletier, Thomas A. Lilien, and Vicki P. Kouros, of State Appellate Defender's Office, of Elgin, for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Patrick Delfino, Lawrence M. Bauer, and Steven A. Rodgers, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 After a bench trial, defendant, Michael S. Axtell, was convicted of first-degree murder ( 720 ILCS 5/9–1(a)(2) (West 2012)) and sentenced to 30 years' imprisonment. On appeal, he contends, first, that his conviction must be reduced to involuntary manslaughter ( 720 ILCS 5/9–3(a) (West 2012)) because the State did not prove beyond a reasonable doubt that he knew that the act that caused the victim's death created a strong probability of death or great bodily harm to her ( 720 ILCS 5/9–1(a)(2) (West 2012)). Second, he contends that the trial court erred in admitting a statement that the victim made shortly before the fatal incident. Third, he contends that, if his conviction is affirmed, the judgment order must be corrected. We affirm the judgment as modified.

¶ 2 Defendant was charged with murdering Tammy Stone on the evening of October 4, 2012. At the time, they were residing in her house in Antioch with their son, Michael, and Jordan Johnson, Stone's son by another man. Defendant and Stone had a daughter, Meghan, who lived elsewhere. The indictment charged defendant with striking Stone about the body, knowing that his acts created a strong probability of death or great bodily harm to her.

¶ 3 The State moved in limine to admit several statements as exceptions to the hearsay rule. Only one is at issue here. According to the State, Jordan would testify as follows. On the evening of October 4, 2012, he heard Stone and defendant yelling. He then saw Stone lying unconscious on the kitchen floor. He returned to his room. Stone regained consciousness, ran into his room, and told him, " ‘We need to find the phone or [defendant] is going to kill me.’ "

¶ 4 As pertinent here, the State argued that the statement was admissible under the exception to the hearsay rule for spontaneous declarations, because (a) there was an occurrence sufficiently startling to produce a spontaneous and unreflecting statement—i.e. , defendant's attack on Stone, (b) there was insufficient time for her to fabricate the statement, and (c) the statement related to the circumstances of the occurrence. See Ill. R. Evid. 803(2) (eff. Jan. 1, 2011); People v. Williams , 193 Ill. 2d 306, 352, 250 Ill.Dec. 692, 739 N.E.2d 455 (2000). Defendant argued that Stone's statement was not a spontaneous declaration, in part because it did not relate to a preceding occurrence. Without explanation, the court ruled that Stone's remark was admissible as a spontaneous declaration.

¶ 5 At trial, the State first called Meghan. She testified as follows. She was 21 years old and lived with her grandmother in Lake Villa, where she had resided on October 4, 2012. Defendant and Stone had never married; shortly after Meghan was born, defendant moved out of state. In 2011, he and Stone resumed their relationship, and he moved in with her, Michael, and Jordan.

¶ 6 Meghan testified that, on October 4, 2012, she, defendant, and Stone went to lunch at Chopper's Bar and Grill. After an hour, Stone and Meghan went shopping while defendant stayed at Chopper's. When they finished shopping, Stone and Meghan returned home. Defendant and Jordan were there; Michael was not. At some point, Stone asked Meghan to accompany her and defendant to Yvonne's, a restaurant in Ingleside, but she declined and went home. Later that evening, she and her friend Jenna Rice visited Joe Janusz in Round Lake Beach.

¶ 7 Meghan testified that, while she was with Joe and Jenna, she received a call on her cell phone from Stone. Stone was crying and said that "she got her ass beat" by defendant. Jenna drove Meghan and Joe to Stone's home. Meghan exited the car. Stone was standing outside. She had a black eye. Meghan entered the house through the garage, locked the door to the house, then passed through the laundry room and into the kitchen. She saw defendant, who was on the couch in the living room.

¶ 8 Meghan testified that she asked defendant why he had put his hands on Stone. Defendant said that "she grabbed his nuts." Meghan replied that he still had no right to hurt her. Meghan entered the living room. Defendant stood up and approached her. Stone, Jenna, and Joe entered, having been let in by Jordan. Defendant and Stone started arguing. Meghan told defendant to get his things and move out. Defendant pushed her; she pushed him down, pinned him to the loveseat, and struck him. Joe pulled her off. At Stone's request, Jenna called the police. Meghan, Jenna, and Joe walked to the garage area.

¶ 9 Meghan testified that she heard a loud thud and ran back into the house. From the kitchen area, she could see into the living room and down the hallway. Defendant was exiting Stone's bedroom, closing the door behind him. As he crossed Meghan's path, she asked what the noise had been. He responded, " ‘nothing.’ " Meghan opened the bedroom door. Stone was lying unconscious on the floor. Meghan shook her and spoke to her but got no response. Jordan, Joe, and Jenna soon entered. They put Stone onto the bed and turned her head to the side, because "she was kind of choking on her spit" and having trouble breathing. Her eyes were rolling back into her head. Jenna called the police, and the other three left the room.

¶ 10 Jenna testified as follows. While she, Meghan, and Joe were at Joe's house, Meghan received a call and said that they needed to go to Stone's house. Jenna drove them there. As she pulled into the driveway, she saw that Stone was standing outside. Jenna, Meghan, and Joe exited the car. Meghan ran to the attached garage and inside the house. Jenna and Joe approached Stone. Stone had a bruise on her left cheek, with some swelling. Jenna eventually went to the back door of the house, where Jordan let her, Stone, and Joe in.

¶ 11 Jenna testified that, after going inside, she saw Meghan and defendant arguing in the living room. Stone pulled Jenna aside and showed her the swelling near her left eye and cheek. Jenna then saw defendant and Meghan fighting. Stone told Jenna to call the police. Jenna left as Meghan was pinning defendant. Outside, she called the police and remained on the line. She reentered the living room and saw that Joe had pulled Meghan off defendant. Jenna, Meghan, and Joe went to the garage. As she left, Jenna saw defendant and Stone enter the bedroom.

¶ 12 Jenna testified that, in the garage, she heard a loud thud. She, Meghan, and Joe ran back inside, where they saw defendant leaving the bedroom. He passed them and had a brief exchange with Meghan. Jenna and Joe entered the bedroom. Stone was lying on the floor. Meghan and Joe moved her to the bed and tried to get her to open her eyes and talk, without success. Remembering that she had left her car running, Jenna ran out and saw defendant entering it. She reached in, turned off the car, and took the keys. As she turned around, she saw defendant walking away. She reentered the bedroom. Stone was still not moving. Jenna and Joe went outside. Soon, the police arrived.

¶ 13 Jordan testified as follows. On October 4, 2012, at about 4 p.m., he came home from school. Defendant was on the living room couch. Stone was in her bedroom. Jordan went to his room and played a game online. Defendant and Stone left the house and returned at about 8 or 9 p.m. Jordan was in his room with the door closed and a headset on. He could hear defendant and Stone arguing in "the other end of the house." Jordan then heard a loud thud from the living room. He left his room. Stone was on the floor next to the couch, crying. Defendant was at the other end of the couch, his feet near her head. He was not helping her. Jordan asked what had happened. He got no response and returned to his room.

¶ 14 Jordan testified that, shortly afterward, he heard yelling, followed by a second thud. He left his room. Stone was lying on the floor between the kitchen and the living room. Her head was about two feet from defendant, who was sitting in a chair. He was looking down at Stone but not helping her. Stone did not appear conscious. Jordan dragged her to the living room. He returned to his room, closed the door, and resumed his game.

¶ 15 Jordan testified that, perhaps five minutes later, Stone entered his room. Over defendant's objection, Jordan testified that she told him, " ‘help me find my phone. [Defendant] is going to kill me.’ " He found Stone's phone, and she called Meghan. When Meghan arrived, Jordan had returned to his bedroom. Hearing Meghan yell, he left his room. He saw Meghan tackle defendant and get on top of him; Joe pulled her off. Jenna called the police. Everyone but defendant and Stone went to the garage.

¶ 16 Jordan testified that, while in the garage, he heard "a loud thud from across the house." He, Meghan, Jenna, and Joe reentered the house. Defendant was walking away from the bedroom. Jordan and the others entered the bedroom. Stone was unconscious on the floor and was making sounds like snoring. She was not moving or responsive. Later, the police arrived.

¶ 17 Joe testified as follows. On the evening of October 4, 2012, he, Stone, and Jenna drove from his house to Stone's house. As Jenna pulled into the driveway, Stone was outside nearby. She had a bruise on her face. Meghan exited the car and ran inside. The door from the garage to the house was locked, so Joe, Jenna, and Stone went around the back, where Jordan let them in. Defend...