People v. Palomera

2022 IL App (2d) 200631

205 N.E.3d 145

461 Ill.Dec. 648

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

v.Adolfo E. PALOMERA, Defendant-Appellant.

No. 2-20-0631

Appellate Court of Illinois, Second District.

Filed February 16, 2022

James E. Chadd, Thomas A. Lilien, and Kathleen Weck, of State Appellate Defender's Office, of Elgin, for appellant.

Tricia L. Smith, State's Attorney, of Belvidere (Patrick Delfino, Edward R. Psenicka, and Pamela S. Wells, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, the defendant, Adolfo E. Palomera, was found guilty of aggravated domestic battery ( 720 ILCS 5/12-3.3(a) (West 2016)) and sentenced to 16 years’ imprisonment. On appeal, the defendant argues that the admission of hearsay statements at trial violated his confrontation rights, the trial court erred in failing to conduct a preliminary inquiry into his pro se claims of ineffective assistance of counsel, and his sentence was excessive. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On April 27, 2017, the defendant was indicted on one count of aggravated domestic battery (id. ) and one count of domestic battery (id. § 3.2(a)). The charges were related to an incident that occurred on November 26, 2016, in which the defendant's girlfriend, Amity Picard, suffered multiple bone fractures to her face. When he was arrested on these charges, the defendant was out on bond in two McHenry County cases.

¶ 4 Picard died on March 3, 2018, based on circumstances unrelated to the incident at issue in this case. Prior to trial and pursuant to section 115-10.2a of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-10.2a (West 2016) ), on the basis that Picard was unavailable to testify at trial, the State filed a motion to admit hearsay statements that Picard made to a police officer, a neighbor, a paramedic, and a nurse.

¶ 5 In response to the State's motion, the defendant, represented by private counsel, argued that section 115-10.2a was not applicable because it did not apply when the declarant was unavailable due to death and that the admission of Picard's out of court statements violated his confrontation rights pursuant to Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 6 Following a hearing, the trial court granted the State's motion. The trial court concluded that section 115-10.2a applied when a declarant was deceased and that the statements at issue were admissible under section 115-10.2a because the statements had circumstantial guarantees of trustworthiness. The trial court further found that the statements were admissible under Crawford because they were made in the course of an ongoing emergency and thus were not testimonial in nature.

¶ 7 On March 29, 2019, the defendant waived his right to a jury trial and signed a written waiver. Before accepting the waiver, the trial court questioned the defendant. In response to those questions, the defendant stated that he understood the difference between a bench trial and a jury trial and that he had discussed the two options with his attorney. The trial court asked the defendant twice whether anyone was forcing him to waive a jury trial. The defendant responded "No" and "Not at all."

¶ 8 The matter thus proceeded to a bench trial. At trial, Candace Picard testified that Picard was her daughter. On November 26, 2016, Picard was taken to the hospital. Candace identified People's exhibit No. 2 as a photograph of Picard from the hospital, showing that she was beaten and bruised. Candace identified People's exhibit No. 5 as a photograph of Picard after she had surgery to rebuild her orbital bone and repair her nose and cheekbone. Candace identified the defendant in court as the person with whom Picard was in a dating relationship at the time of the injuries in November 2016. She testified that the defendant was also the father of one of Picard's children.

¶ 9 Pamela Dietz testified that at 11 p.m. on November 26, 2016, she was at home at 234 Garden Drive, in Belvidere, when someone started pounding on her door. When she opened the door, a woman came running to the door. The woman's face was covered with blood. It was very cold out, and the woman was wearing pajama pants and a tank top and was barefoot. The woman was acting scared and hysterical. Dietz identified People's exhibit No. 2 as a photograph of the woman who came to her door. The woman was screaming that her boyfriend beat her up, that he was after her, and that she was scared. The woman repeatedly stated that her boyfriend beat her up and that she thought he was looking for her. Dietz testified that she brought the woman into her home, locked the door, and called 911. On cross-examination, Dietz acknowledged that the woman never stated the name of her boyfriend who had beaten her.

¶ 10 Dr. Randall Rhodes, a radiologist, testified that he reviewed CT scans of Picard's injured facial bones. He testified that Picard sustained a nasal bone fracture and an orbital fracture to the bony part of her eye socket. Based on his medical training and experience, Rhodes opined that the injuries could have been caused by a strike to the face with a closed fist. On cross-examination, Rhodes acknowledged that the injuries could have been caused by a number of things and that he could not tell from the images how the injuries were inflicted or whether they were accidental or intentional.

¶ 11 Officer Zachary Reese, a Belvidere patrol officer, testified that he was dispatched to Dietz's house at about 11:15 p.m. on November 26, 2016, in response to the report of a battery victim. When he arrived, he saw Picard standing in the middle of the street with no shoes on and her face was bloody and swollen. Her right eye was swollen shut, and her lip and nose were bleeding. Over objection, Reese testified that he asked Picard what had happened and she told him that she got into an argument with her boyfriend and that he struck her. Picard said that the person who hit her was "Adolfo Palomera" and that the injuries were inflicted at 1222 Ruby Street. Reese testified that Picard was crying and emotional and it was difficult to understand what she was saying. Reese stayed with Picard until the paramedics arrived. He identified People's exhibit Nos. 2, 3, and 4 as photographs showing how Picard looked on the night at issue.

¶ 12 Reese testified that he went to 1222 Ruby Street but no one was there. When he returned with another officer several hours later, he observed the defendant exiting the front door. The defendant appeared intoxicated and had fresh scratches and marks on his knuckles. Reese and the other officer arrested the defendant.

¶ 13 On cross-examination, Reese acknowledged that Picard told him that she had been drinking alcohol that evening. He also acknowledged that he did not see the defendant inflict any injuries on Picard, he did not know what caused the marks on the defendant's hands, and he did not take pictures of the scratches and marks on the defendant's hands. The defendant told Reese that close associates call him "Vito." Reese acknowledged that Picard did not refer to her boyfriend as "Vito." Finally, Reese testified that 1222 Ruby Street was about a block and a half from where Picard was found.

¶ 14 Marci Ramsey, a paramedic, testified that she was dispatched to Dietz's address on November 26, 2016, at about 11:18 p.m. in response to a report of a battery victim. Upon arrival, Ramsey saw Picard as the police were escorting Picard toward the ambulance. Picard was disheveled and not wearing shoes. When Ramsey saw that Picard's face was bruised and not symmetrical, she ran toward Picard because she was worried that Picard had a head injury. At that moment, Ramsey heard a really loud male voice yelling. Picard became very frightened and acted as though she wanted to run. Picard stated, "He's going to kill me, he's going to kill me." Ramsey looked to where the voice was coming from but did not see anyone. Police officers ran toward where the voice was coming from.

¶ 15 Ramsey further testified that she had to coerce Picard to enter the ambulance. She told Picard that it was safe and that they could lock the doors. Once inside, Picard curled up into a fetal position and would not talk. Picard was upset, crying, and writhing around. After she gave Picard an ice pack to put on her face, Picard calmed down a bit. Ramsey testified that Picard had scratches and bruises all over her, including her feet. Picard also had pattern bruises on her arms, shoulders, and neck. Ramsey explained that pattern bruises are bruises in the pattern of something holding you that makes the marks, such as a hand or fingertips.

¶ 16 Ramsey testified that she asked Picard what happened. Picard told her that she was drinking and, when she wanted to stop drinking, the person she was with held her prisoner. The person tried to make her drink more and, when she refused, started to beat her. Ramsay testified that, because she wanted to assess Picard's neck, she asked Picard if she had been pulled by her hair. Picard responded that her attacker pulled her to the ground by her hair and beat and punched her repeatedly. During the ambulance ride to the hospital, Picard continued to be very frightened. She repeatedly stated, "He's going to kill me," "I'm so scared," and "I'm going to get hurt." Ramsey identified People's exhibit Nos. 2, 3, and 4 as photographs showing how Picard looked on the night at issue.

¶ 17 On cross-examination, Ramsey acknowledged that Picard never said the name of the person who attacked her. Picard stated only that it was her boyfriend. Ramsey did not ask Picard if she had more than one boyfriend. Ramsey acknowledged that, when she heard the male voice yelling, she did not know who it was or what he was saying. While Picard admitted to alcohol use and her breath smelled of alcohol, Ramsey could not say...