People v. Andrade

2021 IL App (2d) 190797-U

• Court: Appellate Court of Illinois
• Decided: August 16, 2021
• Docket: 2-19-0797
• Status: Unpublished

Opinion

2021 IL App (2d) 190797-U No. 2-19-0797 Order filed August 16, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 17-CF-1678 ) ALEJANDRO ANDRADE, ) Honorable ) Kathryn D. Karayannis, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices Zenoff and Schostok concurred in the judgment.

ORDER

¶1 Held: At defendant’s trial where he claimed self-defense for stabbing his brother in a domestic fight, the trial court properly excluded audio of bodycam footage from the officers as they spoke with defendant and his brother after the dispute. The evidence of their respective demeanors was not, as defendant claimed, relevant circumstantial evidence as to who was the aggressor in the quarrel.

¶2 Following a jury trial, defendant, Alejandro Andrade, was convicted of two counts of

domestic battery (720 ILCS 5/12-3.2(a)(1), (a)(2) (West 2016)) and one count of aggravated

battery (720 ILCS 5/12-3.05(f)(1) (West 2016)) and sentenced to 24 months’ probation. He 2021 IL App (2d) 190797-U

appeals, contending that the trial court erred by barring him from playing for the jury portions of

the audio from two officers’ bodycam recordings. We affirm.

¶3 I. BACKGROUND

¶4 At trial, Wilfrido Lorenzo testified that he is defendant’s brother. On September 4, 2017,

there was a family cookout at the home the brothers shared. Defendant was out of work at the

time. Lorenzo had tried to get defendant hired by his employer but had recently learned that

defendant would not be hired.

¶5 Sometime during the day of the cookout, Lorenzo and defendant went to the liquor store.

During the ride, Lorenzo told defendant that his employer was not going to hire him. Defendant

became angry and began driving erratically. He was still upset when they returned home, but the

two were separated during most of the party because Lorenzo was cooking.

¶6 After everyone else had left, defendant and Lorenzo were cleaning up. When they had

finished, they were in the garage. Lorenzo set out a chair for defendant, offered him a beer, and

asked if he was still mad at him. They initially had a civil conversation, but defendant began to

get louder and started cursing. Lorenzo closed the overhead door so as not to disturb the neighbors.

Defendant appeared highly intoxicated.

¶7 Defendant began pushing Lorenzo across the garage. When Lorenzo’s back was against

the wall, defendant lunged at him again. Lorenzo pushed back and defendant fell into some

bicycles. Defendant got back up, went after Lorenzo again, and the two exchanged punches for a

couple of minutes. At some point, defendant fell to his knees. Lorenzo told him not to get back

up and walked away.

¶8 Thinking the fight was over, Lorenzo left the garage and walked toward the rear of the

house. Out of the corner of his eye, he saw defendant approaching. Believing that defendant was

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going to punch him again, Lorenzo turned around and raised his arm. He then realized that

defendant had a knife. Lorenzo grabbed defendant’s arm and punched him in the nose. Lorenzo

thought that the knife fell out of defendant’s hand. Lorenzo turned and walked up the stairs to the

house. He saw defendant’s reflection in the patio door. Thinking that defendant was trying to stab

him again, Lorenzo turned and kicked defendant in the face, sending him into a flower bed. When

Lorenzo got inside the house, he realized his shirt was wet. His girlfriend told him that he had

been stabbed. After changing his shirt, Lorenzo saw that the police and an ambulance had arrived.

He had not called them. Lorenzo was willing to speak to the police and went to the door to meet

them. At the time, due to adrenaline, Lorenzo did not feel the stab wound and believed he was

okay. He “remember[ed] telling them that [he] didn’t want to go to a certain hospital [that] they

were trying to send [him] to.” He was upset because there “was a lot that just went on, especially

with [his] brother,” but he was not angry with the police. Lorenzo told the police that he did not

have the right to let them into the house because it was not his house. Lorenzo was eventually

transported to a hospital, where he received stitches for his wound. At the hospital, the police

asked Lorenzo if he wanted to provide a written statement. He refused and told the police that he

did not want to press charges.

¶9 Officer Ryan Nelis testified that he responded to the scene. He encountered defendant

walking down the driveway. He had injuries to his face and blood coming from his nose.

Defendant had difficulty walking, and Nelis believed that he was intoxicated.

¶ 10 Nelis went to the house to speak to Lorenzo while another officer spoke with defendant.

Nelis saw a stab wound on Lorenzo’s left shoulder. Lorenzo was uncooperative. He did not want

to press charges, go to the hospital, or allow the officer to enter the house. Lorenzo did eventually

go to the hospital but continued to be uncooperative.

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¶ 11 Defendant testified that he got into an argument with Lorenzo about 30 minutes before the

cookout ended. Afterward, while defendant was cleaning the garage, Lorenzo entered and closed

the overhead garage door. Because of their prior argument, defendant felt uncomfortable with

Lorenzo in the garage. When Lorenzo grabbed two chairs and set them down across from each

other, defendant decided to leave. Lorenzo then rushed at defendant, shoulder-bumped him, and

prevented him from leaving the garage.

¶ 12 When defendant attempted to physically move Lorenzo out of the way, the latter pushed

him so that he fell into some bicycles. As defendant tried to get up, Lorenzo punched him in the

face, causing his nose to bleed. Defendant tried to crawl away as Lorenzo punched him repeatedly

in the back of the head. Defendant asked Lorenzo over and over to stop hitting him, but he

continued.

¶ 13 As defendant was on the ground, he came across his knife, which had been knocked to the

floor. Defendant picked up the knife and, as Lorenzo swung to hit him again, he swung the knife

at Lorenzo. Lorenzo ran into the house, and defendant used the phone in the garage to call 911.

The jury heard a recording of the 911 call.

¶ 14 Defendant’s sister, Iraida Andrade, testified that Lorenzo had spoken to her about what

happened. Lorenzo told her that his argument with defendant concerned Lorenzo’s baby’s mother.

Lorenzo said that he got on top of defendant and kicked him while he was on his hands and knees.

¶ 15 Officer Sean Callahan testified that, as he responded to the scene, he encountered defendant

bleeding and stumbling down the driveway. Callahan helped defendant to sit on the curb and

called for an ambulance.

¶ 16 During the defense case, a portion of Callahan’s bodycam footage from the night in

question was played for the jury. The video was played without audio. The trial court denied

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defendant’s request to play portions of the audio from Nelis’s and Callahan’s bodycams. The court

found that the statements on the audio were either hearsay that was not subject to an exception or

impermissible collateral impeachment.

¶ 17 The jury was instructed on self-defense. It found defendant guilty of two counts of

domestic battery and one count of aggravated battery. The court sentenced him to 24 months’

probation. Defendant timely appealed.

¶ 18 II. ANALYSIS

¶ 19 Defendant contends that the trial court erred by barring the audio clips from Nelis’s and

Callahan’s bodycams. He argues generally that “[b]ody cameras are arguably the best source of

unbiased information available when police interact with people at the scene of a crime.” He

contends that the audio of Nelis’s interaction with Lorenzo was relevant because his “tone and

mannerisms,” along with his reluctance to allow the police into his home and to go to the hospital,

were evidence that he was the initial aggressor in the fight. See People v. Frazier, 2019 IL App

(1st) 172250, ¶ 40 (a defendant acts in self-defense when, inter alia, he is not the initial aggressor).

Defendant contends that the evidence was not hearsay because he was not offering it to prove the

truth of the matters asserted, e.g., that Lorenzo did not want to go to the hospital. Defendant

emphasizes that he would not have wanted to introduce the audio to prove the truth of Lorenzo’s

statements, because in some portions Lorenzo blamed defendant for starting the fight.

Alternatively, defendant contends that the statements were admissible as excited utterances, given

that Lorenzo’s agitation was likely the result of the fight.

¶ 20 Conversely, defendant contends that the audio of his calm and cooperative demeanor while

speaking with Callahan was proof that he was not the initial aggressor. He argues alternatively

that the statements qualified as excited utterances.

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¶ 21 The State responds as follows. Evidence of the combatants’ respective demeanors after

the fight was not relevant to prove who was the initial aggressor. Moreover, the evidence was

hearsay and not admissible as an excited utterance. Defendant’s statements on the audio were

similar to his trial testimony and thus were inadmissible prior consistent statements. Finally, the

evidence was cumulative, given that defendant, Lorenzo, and the officers testified to much of the

same information.

¶ 22 Evidentiary rulings are generally within the trial court’s sound discretion, and we will not

disturb such rulings absent an abuse of that discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001).

An abuse of discretion occurs only where the trial court’s ruling is arbitrary, fanciful, unreasonable,

or where no reasonable person would take the trial court’s view. Id. Defendant contends, however,

that we should review the trial court’s ruling de novo because the “ ‘trial court’s exercise of

discretion has been frustrated by an erroneous rule of law.’ ” Id. (quoting People v. Williams, 188

Ill. 2d 365, 369 (1999)). We disagree. Here, as in Caffey, the trial court based its ruling on the

specific facts of the case and not on a broadly applicable rule. Thus, we review its decision for an

abuse of discretion.

¶ 23 Defendant argues that the body camera evidence, recorded immediately after the event,

was highly probative. Section 10-30 of the Law Enforcement Officer-Worn Body Camera Act (50

ILCS 706/10-30 (West 2016)) provides that body camera recordings “may be used as evidence in

any administrative, judicial, legislative, or disciplinary proceeding.” However, nothing in this

section manifests an intent to override the normal rules of evidence regarding relevancy and

hearsay.

¶ 24 First, as to Lorenzo’s interaction with Nelis, we agree with the State that evidence of

Lorenzo’s demeanor after the fight was simply not relevant to whether he was the initial aggressor.

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In deciding the admissibility of evidence, “[t]he court must ask whether the proferred evidence

fairly tends to prove or disprove the offense charged and whether that evidence is relevant in that

it tends to make the question of guilt more or less probable.” People v. Wheeler, 226 Ill. 2d 92,

132 (2007). Moreover, the trial court has the discretion to reject even relevant evidence if it has

little probative value due to its remoteness, uncertainty, or unfairly prejudicial nature. Id.; see also

Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 25 It is not surprising that Lorenzo would be upset after a fight in which he had been stabbed.

Indeed, in arguing that the Lorenzo’s statements were excited utterances, defendant concedes that

“the fight between [Lorenzo] and [defendant] was an event ‘sufficiently startling’ to elicit an exited

[sic] utterance.” Thus, Lorenzo’s agitation after the fight does not make it more or less likely that

he was the initial aggressor. It is at least equally likely that his agitation was the result of simply

the fight itself. Yelling, by itself, “is no indication of violent behavior.” People v. Cruzado, 299

Ill. App. 3d 131, 137 (1998).

¶ 26 Similarly, that Lorenzo was reluctant to go to the hospital or to allow the police into his

home in the early morning hours simply has nothing to do with whether he started the fight

sometime earlier. Even if he were the victim (which he claimed he was, in speaking with Nelis),

Lorenzo might not have wanted any further inconvenience.

¶ 27 Further, Lorenzo’s statements to Nelis did not qualify as excited utterances. For a

statement to be admissible under the excited-utterance exception there must be an occurrence

sufficiently startling to produce a spontaneous and unreflecting statement, an absence of time for

the declarant to fabricate a statement, and a statement relating to the circumstances of the

occurrence. Ill. R. Evid. 803(2) (eff. Sept. 28, 2011); People v. Busch, 2020 IL App (2d) 180229,

¶ 41. An excited utterance is admissible as an exception to the hearsay rule and, as such, is offered

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to prove the truth of the matter asserted. See Ill. R. Evid. 801(c) (eff. Oct. 15, 2015) (hearsay is

an out-of-court statement offered to prove the truth of the matter asserted); see also People v.

Tenney, 205 Ill. 2d 411, 432-33 (2002).

¶ 28 Whether a statement is admissible as an excited utterance depends upon the totality of the

circumstances. People v. Williams, 193 Ill. 2d 306, 352 (2000). Such an analysis encompasses

several factors, including the amount of time that has passed since the incident, the mental and

physical condition of the declarant, the nature of the event, and the presence or absence of self-

interest. People v. Sutton, 233 Ill. 2d 89, 107 (2009). The key inquiry, however, is “whether the

statement was made while the excitement of the event predominated.” (Internal quotation marks

omitted.) Id.

¶ 29 Many of Lorenzo’s statements to Nelis did not relate to the occurrence itself but to

collateral issues such as whether Lorenzo would go to the hospital, and thus they did not meet the

elements of an excited utterance. Moreover, in other portions of the audio, Lorenzo blamed

defendant for starting the fight. Hence, under defendant’s theory of the case, Lorenzo’s statements

were not unreflecting accounts of the incident but, rather, had been fabricated. Because the

statements were not offered for their truth, a hearsay exception does not apply.

¶ 30 In any event, we agree with the State that the evidence was essentially cumulative. Illinois

Rule of Evidence 403 (eff. Jan. 1, 2011) states:

“Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”

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¶ 31 Lorenzo testified that he was upset after the fight, that he did not want the police to go

inside the house, and that he argued with Nelis about going to the hospital. Nelis, too, testified

that Lorenzo was upset and uncooperative. 1 Thus, the recording was cumulative of other properly

admitted evidence, and the trial court did not abuse its discretion by excluding it.

¶ 32 A similar analysis applies to the audio portion of Callahan’s interaction with defendant.

Defendant’s calm demeanor after the fact simply had no relevance to whether he was the initial

victim of an unprovoked assault. A fight is likely to change the combatants’ demeanors regardless

of who initiated it. Lorenzo and Nelis testified that defendant appeared intoxicated, and Callahan

testified that defendant’s face was bleeding. On the audio portion that defendant wanted to be

played, he claims that he was very tired. Thus, his placidity after the fight was more likely the

product of intoxication, pain, and exhaustion than of a clear conscience.

¶ 33 Moreover, defendant’s calm demeanor was inconsistent with an excited utterance.

Although, as defendant argues, the recording was made a relatively short time after his 911 call

(which was admitted as an excited utterance), the time factor is not dispositive. The key inquiry

is whether the excitement of the event still predominated. Sutton, 233 Ill. 2d at 107. Here, it

appears that defendant was intoxicated and exhausted rather than feeling the excitement of the

event. Another factor is whether the statement was in the declarant’s self-interest. Id. And

1 Lorenzo testified that he only objected to going to a specific hospital while Nelis implied

that Lorenzo did not want to go the hospital at all. To the extent that the audio contradicted

Lorenzo’s testimony on this point, it was inadmissible as collateral impeachment. See People v.

Collins, 106 Ill. 2d 237, 269 (1985) (cross-examiner may not impeach a witness on a collateral

matter; he or she must accept the witness’s answer).

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defendant’s statements, in which he blamed Lorenzo for starting the fight, were largely self-

serving.

¶ 34 Finally, defendant and Callahan testified about their interaction, making the audio of the

conversation cumulative. We agree with the State that proffering this evidence appears to have

been defendant’s attempt to put his version of events before the jury a second time and, as such,

was inadmissible as a prior consistent statement. Self-serving, out-of-court statements of a

defendant are inadmissible hearsay. People v. Patterson, 154 Ill. 2d 414, 452 (1992). A prior

consistent statement is admissible only to rebut an inference of recent fabrication or recent motive

to testify falsely if the prior statement was made before the motive existed. People v. Lambert,

288 Ill. App. 3d 450, 453 (1997). Defendant does not attempt to satisfy these criteria.

¶ 35 III. CONCLUSION

¶ 36 The judgment of the circuit court of Kane County is affirmed.

¶ 37 Affirmed.

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