People v. Mulvey

853 N.E.2d 68, 366 Ill. App. 3d 701, 304 Ill. Dec. 536, 2006 Ill. App. LEXIS 616
Appellate Court of Illinois·Decided July 19, 2006·No. 2-04-1221·Published·Cited by 14 cases

Opinion

JUSTICE KAPALA

delivered the opinion of the court:

A Du Page County jury found defendant, James F. Mulvey, guilty of two counts of domestic battery (720 ILCS 5/12 — 3.2(a) (West 2002)). Thereafter, the trial court sentenced defendant to terms of probation. Defendant appeals, contending that he is entitled to a new trial because the trial court erred in (1) refusing to instruct the jury on the affirmative defense of reasonable discipline of a child, (2) failing to sustain his objection to prior-inconsistent-statement testimony, and (3) failing to give a limiting instruction to the jury regarding prior inconsistent statements. We affirm the judgment of the circuit court of Du Page County.

I. FACTS

The complaint charged domestic battery (720 ILCS 5/12 — 3.2(a)(2) (West 2002)) in that on June 28, 2003, defendant “intentionally made physical contact of an insulting nature with Paul M. Buck, a family member of said defendant in that said defendant struck Paul M. Buck in the face with his fist.” Before trial, the State added a second count of domestic battery (720 ILCS 5/12 — 3.2(a)(1) (West 2002)), alleging that “defendant knowingly and without justification caused bodily harm to Paul Buck in that defendant struck Paul Buck in the head with his fist.”

The cause was tried in September 2004. Teresa Ashleman testified that she and her five children, Paul, John, Patricia, Tim, and Peter, live with defendant. Defendant is the biological father of the four younger children and has been “acting father” to Paul since Paul was five years old. According to Ashleman, Paul is slightly “mentally retarded” with an intelligence quotient of 74. Paul also has epilepsy, attention deficit and hyperactivity disorders, and learning disabilities.

Ashleman explained that at approximately 8 p.m. on June 28, 2003, Tim and Paul were upstairs playing video games. Defendant ran upstairs, and Ashleman saw defendant back Paul up into the back bedroom. Ashleman ran into the bedroom, where she saw defendant kneeling on Paul and holding Paul’s hands down on the bed. Ashleman pulled defendant off of Paul, and they all went downstairs. Paul went into the kitchen and took some crackers from 11-year-old John. John protested by yelling and throwing some Styrofoam cups at Paul. Defendant took Paul by the arm to escort Paul up the stairs. Paul sat or lay down on the stairs because he did not want to be escorted upstairs. Paul started kicking and hitting, and defendant tried to hold him down. Peter was sitting at the base of the stairs and “kind of got squashed” by defendant and Paul. Ashleman said that Paul may have accidentally kicked Peter. Ashleman said that she grabbed Peter and got him out of the way. At that point in Ashleman’s testimony, the following exchange ensued:

“[ASSISTANT STATE’S ATTORNEY]: Was the defendant hitting Paul?
[ASHLEMAN]: He was holding him down on the stairs and—
[ASSISTANT STATE’S ATTORNEY]: My question was, was he hitting him?
[ASHLEMAN]: I don’t believe he was hitting him.
[ASSISTANT STATE’S ATTORNEY]: Okay. He wasn’t hitting him in the head?
[ASHLEMAN]: No. He was doing something like this, a motion like this, on his — around his head, and his other hand was near his head.
[ASSISTANT STATE’S ATTORNEY]: Okay. Did the defendant ever grab Paul by the legs and pull him down the stairs?
[ASHLEMAN]: Yes he did. I did see that.
[ASSISTANT STATE’S ATTORNEY]: And did you ever see him punch Paul?
[ASHLEMAN]: I did not see him punch, no, I did not.
I thought that he had, but I did not see that.
[ASSISTANT STATE’S ATTORNEY]: But your testimony right now is that you never saw Jim punch Paul around the head and shoulder area?
[ASHLEMAN]: No. I thought that he was, I did think that he was.”

Ashleman testified further that she pulled defendant off of Paul and stood between them. Ashleman pushed defendant backward and yelled at defendant because she was angry and wanted defendant to let her handle Paul. Next, Paul threw cracker crumbs in defendant’s direction. Ashleman denied that, in response, defendant threw a punch past her toward Paul. Paul ran into the kitchen and when John refused to help Paul, Paul punched John. Paul was trying to exit the kitchen because defendant was coming after him. Ashleman grabbed defendant by the shirt, the shirt ripped, and defendant and Paul collided and went down onto the kitchen floor. Ashleman saw Paul’s head hit the floor. Ashleman got scared and called 911. At that point in Ashleman’s testimony, the following exchange ensued:

“[ASSISTANT STATE’S ATTORNEY]: Okay. Did you see Jim punch Paul in the head?
[ASHLEMAN]: No.
[ASSISTANT STATE’S ATTORNEY]: You didn’t see him punch him in the head repeatedly?
[ASHLEMAN]: No. I believe I exaggerated.
[ASSISTANT STATE’S ATTORNEY]: Okay. That’s not my question.
[ASHLEMAN]: Okay.
[ASSISTANT STATE’S ATTORNEY]: Did you ever ask Jim to get off of Paul?
[ASHLEMAN]: I did.
[ASSISTANT STATE’S ATTORNEY]: Were you afraid for Paul’s life?
[ASHLEMAN]: I was afraid because he has epilepsy.
[ASSISTANT STATE’S ATTORNEY]: Were you afraid for his life?
[ASHLEMAN]: Not for his Ufe.
:¡t * *
[ASSISTANT STATE’S ATTORNEY]: You weren’t afraid that the defendant was going to kill Paul?
Hi Hs *
[ASHLEMAN]: I was afraid enough to call the police.”

Ashleman explained that as she called 911 defendant went outside to smoke a cigarette, and Paul went into the family room. When Warren-ville officers arrived, Ashleman tried to tell Officer Ken Dawson what happened.

Ashleman identified the three-page written statement that she wrote and signed and gave to Dawson the day after the incident.

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People v. Mulvey, 853 N.E.2d 68, 366 Ill. App. 3d 701, 304 Ill. Dec. 536, 2006 Ill. App. LEXIS 616 (Ill. Ct. App. 2006).

853 N.E.2d 68 (People v. Mulvey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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