NOTICE 2026 IL App (4th) 250326-U This Order was filed under FILED Supreme Court Rule 23 and is May 26, 2026 NO. 4-25-0326 Carla Bender not precedent except in the th limited circumstances allowed 4 District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County BRADLEY SCOTT YOHN, ) No. 21CF715 Defendant-Appellant. ) ) Honorable ) Roger B. Thomson, ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justices Zenoff and Vancil concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not abuse its discretion in finding the deceased victim’s out- of-court statements were admissible at defendant’s jury trial under the excited utterance exception to the hearsay rule. (2) The trial court did not err in finding the statements were nontestimonial and therefore did not implicate defendant’s right to confrontation.
¶2 A jury found defendant, Bradley Scott Yohn, guilty of home invasion (720 ILCS
5/19-6(a)(1) (West 2020)), aggravated kidnapping (id. § 10-2(a)(5)), aggravated vehicular
hijacking (id. § 18-4(a)(1)), and aggravated criminal sexual assault (id. § 11-1.30(a)(1)), and he
was sentenced to 130 years in prison. Defendant appeals his convictions, arguing on appeal that
the trial court “erred in allowing the State to admit out-of-court, testimonial statements the
deceased complainant made to her husband and a sheriff’s deputy for the truth of the matter
asserted where no hearsay exception existed, in violation of the hearsay rule and [the] right to
confrontation.” We affirm. ¶3 I. BACKGROUND
¶4 A. The Charges
¶5 In November 2021, defendant was indicted on two counts of home invasion
(counts I and II) (id. § 19-6(a)(1), (6)) and one count each of aggravated kidnapping (count III)
(id. § 10-2(a)(5)), aggravated vehicular hijacking (count IV) (id. § 18-4(a)(1)), aggravated
criminal sexual assault (count V) (id. § 11-1.30(a)(1)), and residential burglary (count VI)
(id. § 19-3(a)). The indictments were based on allegations that defendant approached the alleged
victim, C.L.—who was 60 years of age or older—in her parked car under the pretext of offering
assistance, then commandeered the vehicle and drove it to C.L.’s residence, where he proceeded
to sexually assault her, burglarize the home, and flee the area in her vehicle. C.L. died before
defendant’s trial, but the State indicated at a pretrial hearing that it was “not going to present any
evidence or somehow allege that [defendant] caused that death.”
¶6 B. Pretrial Proceedings
¶7 Prior to trial, the trial court granted defendant’s request to proceed pro se and
allowed his previously appointed counsel to serve as standby counsel at his trial. Defendant filed
numerous pretrial motions pro se. In relevant part, he filed (1) a motion to dismiss the charges
pursuant to section 114-1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-1
(West 2022)) and (2) a “Motion to Suppress/Exclude Statement/Testimony.”
¶8 1. Motion to Dismiss the Charges
¶9 In his motion to dismiss the charges, defendant argued the State was prohibited
from introducing out-of-court statements C.L. had made around the time of the alleged offenses
because they were hearsay and did not fall under the excited utterance exception to the hearsay
rule or any other exception to the rule. He further argued that the statements were testimonial and
-2- therefore inadmissible under the confrontation clause of the sixth amendment to the United
States Constitution (U.S. Const., amend. VI) because he never had an opportunity to
cross-examine C.L. before her death. The trial court denied defendant’s motion following a
hearing.
¶ 10 2. Motion to Suppress/Exclude Statement/Testimony
¶ 11 In his other relevant pretrial motion, defendant argued that statements C.L. made
to her husband, Timothy Schmitt, were inadmissible as hearsay that did not fall within any
exception to the rule and because C.L. was not available to testify. The trial court denied
defendant’s motion following a hearing.
¶ 12 C. Jury Trial
¶ 13 Defendant’s jury trial commenced on July 10, 2023, and concluded on July 17,
2023. We discuss only the evidence presented that is relevant to the issues raised on appeal.
¶ 14 1. The State’s Evidence
¶ 15 a. Schmitt
¶ 16 Schmitt testified that at the time of the alleged offenses, he had been in a
relationship with C.L. for 36 years and married to her for 2 years. On the date in question,
Schmitt left work around 5 p.m. and returned home approximately one hour later. As he pulled
into the driveway, he noticed that the garage door was open, C.L.’s car was gone, and there were
tire tracks in the yard, all of which were concerning to him. He then noticed that the door leading
into the house from the garage had been kicked in. Schmitt walked through the broken doorway
and “saw [C.L.] sitting on the floor in tears.” Schmitt testified, “She was crying and she told me
that they raped her.” Defendant objected, arguing C.L.’s statements were testimonial; the trial
court overruled the objection. Schmitt further testified that C.L. was sitting on the floor on a
-3- blanket with blood on it, which he indicated had come from “her genital region.” He also noticed
a knife on the floor nearby. Schmitt described C.L. as being in an emotional state and sobbing.
He testified that C.L. told him she was worried the assailants would return, so he got a gun from
the bedroom, gave it to her, and then called the police.
¶ 17 The prosecutor asked Schmitt if, after calling the police, he questioned C.L. about
what had occurred. Schmitt testified that he had questioned her, and he then recounted C.L.’s
statements to him:
“She told me that she was driving home *** and the lights were not on in
the car, and she stopped there at the stop sign, and *** a man came and *** went
to help her to turn the lights on, and he got in the car with her and he drove off
with her.”
Schmitt continued by testifying C.L. told him that while they were in the car, “the man” made
her take off her shirt and touched her breasts and he forced her to perform oral sex on him. C.L.
told Schmitt that “she thought [they] were going to kill her”—Schmitt later testified that C.L.
told him there was also a woman with the man—so “she told them that she had some jewelry up
at the house and some money.” The man told C.L. that if her husband was home, he would kill
them both. When they arrived at the house, the man and the woman got into an argument, and
C.L. managed to run inside and lock the door behind her. The man kicked in the door, and C.L.
told him where her jewelry was located. C.L. told Schmitt that the man then threw her down the
basement stairs, at which point she told the man that there was a safe in the basement. As he was
trying to open the safe, C.L. told him that “the safe was wired to the police and the police were
coming.” C.L. told Schmitt that the man then took her back upstairs and “raped her.” C.L. further
stated to Schmitt that the female “had threatened to kill her with that knife.”
-4- ¶ 18 During his cross-examination of Schmitt, defendant questioned him about the
statements C.L. had made to him at the scene of the crime.
¶ 19 b. Officer Joe Lohmeyer
¶ 20 Joe Lohmeyer testified that he was a patrol sergeant with the Adams County
Sheriff’s Office, and on the date in question, a “call came in as a woman—carjacking and rape.”
Officer Lohmeyer testified that he and another officer were the first to respond to the call,
arriving at the scene at approximately 6:30 p.m. Upon entering the residence, Officer Lohmeyer
observed “an older female sitting on the floor with her legs kind of off to the side. She appeared
distraught.” Officer Lohmeyer testified that because the “suspects were not on scene,” his main
concern at the time was “community safety” and figuring out “[w]here this guy is at and try[ing]
to stop any future problems.” Officer Lohmeyer testified that for this reason, he asked C.L. to
explain what had happened and to provide a description of the assailants. When the prosecutor
asked Officer Lohmeyer to recount what C.L. told him, defendant objected, arguing C.L.’s
statements were “testimonial hearsay.” The trial court overruled defendant’s objection.
¶ 21 Officer Lohmeyer recounted what C.L. told him had happened, and her statements
to him were nearly identical to her statements to Schmitt, described above. Further, Officer
Lohmeyer testified that he asked C.L. if she could provide a description of the assailants, and she
described them as “a white, scruffy, red-headed male” and a “shorter black female.” He also
testified to his observations of C.L.’s demeanor as she was providing her statements to him:
“So when I saw her, she was on the floor. There was some crying, but it
was also—I think what I see in other people is shock, just disbelief, kind of
bewilderment. You know, when I would talk to her and ask her what happened,
there was like a pain for kind of remembering it, you know, and some hesitation,
-5- and it was kind of a little bit disjointed as far as how the conversation went. And I
think that was a reflection of how emotional she was. You know, she seemed—
You know, I had described it as shock, but, you know, it was—the best I can
describe that, just utter confusion I think and disbelief is kind of what I read in her
face and pain I think of having to remember what happened.”
¶ 22 During his cross-examination of Officer Lohmeyer, defendant questioned him
about the statements C.L. had made to him at the scene of the crime.
¶ 23 2. Defendant’s Evidence
¶ 24 Defendant called several witnesses to testify during his case-in-chief. In relevant
part, he questioned certain of his witnesses about C.L.’s statements that he is now challenging on
appeal.
¶ 25 3. Jury Verdict
¶ 26 The jury ultimately found the State had proven defendant guilty of each count
beyond a reasonable doubt.
¶ 27 D. Posttrial Proceedings
¶ 28 Following the guilty verdict, the trial court granted defendant’s request for the
appointment of posttrial counsel, who subsequently filed a motion for a new trial on his behalf.
¶ 29 On September 25, 2023, after hearing and denying defendant’s motion for a new
trial, the trial court conducted a sentencing hearing. At the sentencing hearing, the State informed
the court that it was moving to dismiss count II to avoid any potential one-act, one-crime
violation and that count VI should merge into count I. The court accepted the State’s dismissal of
count II and agreed that count VI would merge into count I. Ultimately, the court sentenced
defendant to 30 years in prison on counts I, III, and IV and 40 years in prison on count V, with
-6- all of the sentences to be served consecutively, for a total of 130 years in prison.
¶ 30 Defendant filed a timely motion to reconsider his sentence, which the trial court
heard in December 2023. The court noted at the hearing that it had received a pro se letter from
defendant alleging a claim of ineffective assistance of posttrial counsel. The court found possible
merit to defendant’s claim and, without ruling on the motion to reconsider sentence, appointed
him new posttrial counsel to investigate the claim further.
¶ 31 In August 2024, defendant filed a motion alleging ineffective assistance of
posttrial counsel and requesting that the trial court grant him leave to file an amended motion for
a new trial. The court granted defendant’s request for leave, and he thereafter filed an amended
motion for a new trial. In the motion, he argued, in relevant part, that the court had erred in
denying his pretrial motions to suppress C.L.’s statements and by allowing the State to “use
hearsay” and “evade Crawford [v. Washington, 541 U.S. 36, 51 (2004)]” at his trial. In
January 2025, the court conducted a hearing on defendant’s motion and took the matter under
advisement. The court also granted defendant leave to file an amended motion to reconsider his
sentence.
¶ 32 On March 5, 2025, the trial court entered a written order denying defendant’s
amended motion for a new trial and, following a hearing on March 28, 2025, the court denied
defendant’s amended motion to reconsider his sentence.
¶ 33 This appeal followed.
¶ 34 II. ANALYSIS
¶ 35 On appeal, defendant argues the trial court erred in admitting C.L.’s out-of-court
statements to Schmitt and Officer Lohmeyer because they were (1) hearsay that did not fall
within the excited utterance exception and (2) testimonial in nature and therefore inadmissible
-7- under the confrontation clause where he did not have an opportunity to cross-examine her.
¶ 36 A. Invited Error
¶ 37 Before reaching the merits of defendant’s claims, we must first address the State’s
argument that defendant invited the error of which he now complains on appeal through his
questioning of certain witnesses on cross-examination and in his case-in-chief. According to the
State, “the statements from C.L. and others that defendant elicited via his questioning, taken with
the other evidence introduced at trial, clearly established all of the facts he now complains of.” In
support, the State relies on this court’s decision in People v. Ramirez, 2013 IL App (4th) 121153.
¶ 38 “The doctrine of invited error prevents a defendant from raising a claim on appeal
where he or she ‘procures, invites, or acquiesces in the admission’ of otherwise improperly
admitted evidence.” People v. Collins, 2020 IL App (1st) 181746, ¶ 16 (quoting People v. Bush,
214 Ill. 2d 318, 332 (2005)). “This is because, by acquiescing in rather than objecting to the
admission of allegedly improper evidence, a defendant deprives the State of the opportunity to
cure the alleged defect.” Bush, 214 Ill. 2d at 332; see People v. Trefonas, 9 Ill. 2d 92, 98 (1956)
(“A party cannot sit by and permit evidence to be introduced without objection and upon appeal
urge an objection which might have been obviated if made at the trial.”); People v. Segoviano,
189 Ill. 2d 228, 241 (2000) (“[I]t is well established that an accused may not ask the trial court to
proceed in a certain manner and then contend in a court of review that the order which he
obtained was in error.” (Internal quotation marks omitted.)).
¶ 39 Here, it cannot be fairly stated that defendant procured, invited, or acquiesced in
the admission of C.L.’s statements to Schmitt and Officer Lohmeyer. See Bush, 214 Ill. 2d at
332. The State’s reliance on Ramirez is misplaced. In that case, we found the invited-error
doctrine applied because the defendant had acquiesced in the admission of the complained-of
-8- testimony at trial by “fail[ing] to object to [it and then] elicit[ing] more of it on
cross-examination.” Ramirez, 2013 IL App (4th) 121153, ¶ 77. That is not what happened in this
case. Rather, in this case, defendant objected to the admission of C.L.’s statements not only at
trial, but also before trial. Thus, Ramirez is readily distinguishable.
¶ 40 We agree with defendant that his actions in the trial court in this case were more
akin to those of the defendant in Collins. There, the State argued on appeal that the defendant
had “invited or acquiesced to the admission of [a police officer’s] body camera video because he
later used the error by incorporating the video into his arguments about the unreliability of [the
officer’s] testimony.” (Internal quotation marks omitted.) Collins, 2020 IL App (1st)
181746, ¶ 16. The Collins court rejected the State’s argument, finding that because the defendant
had objected to the video’s admission before and during trial, he had not invited or acquiesced in
its admission. Id. ¶ 17. Instead, the Collins court concluded the defendant had only incorporated
the video into his argument “to make the best of the jury viewing [it] over h[is] objection.”
Id. ¶ 18.
¶ 41 We find the same thing occurred in this case. After defendant’s repeated
objections to the admission of C.L.’s statements had been overruled and the statements were
admitted into evidence, defendant attempted “to make the best” of the jury having heard them by
testing their reliability during cross-examination and in his case-in-chief. Id. Thus, we reject the
State’s invited-error argument and will address defendant’s claims on the merits.
¶ 42 B. Excited Utterances
¶ 43 Turning to the merits, defendant first argues that the trial court erred in finding
C.L.’s statements to Schmitt and Officer Lohmeyer fell within the excited utterance exception to
the hearsay rule.
-9- ¶ 44 1. The Law
¶ 45 “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid.
801(c) (eff. Oct. 15, 2015). “Hearsay is not admissible except as provided by [the Illinois Rules
of Evidence], by other rules prescribed by the Supreme Court, or by statute.” Ill. R. Evid. 802
(eff. Jan. 1, 2011). Rule of Evidence 803(2) provides an exception for excited utterances, also
known as spontaneous declarations. Ill. R. Evid. 803(2) (eff. Jan. 25, 2023); see People v. Sutton,
233 Ill. 2d 89, 107 (2009). An excited utterance is a “statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event or
condition.” Ill. R. Evid. 803(2) (eff. Jan. 25, 2023). “The theory underlying the exception is that
the event is so startling that it temporarily stills the capacity for reflection, thus producing
statements free of conscious fabrication.” (Internal quotation marks omitted.) People v. Hunter,
2023 IL App (4th) 210595, ¶ 62.
¶ 46 To be admissible under the excited utterance exception, a hearsay statement must
meet three requirements: “(1) there must be an occurrence sufficiently startling to produce a
spontaneous and unreflecting statement, (2) there must be an absence of time for the declarant to
fabricate the statement, and (3) the statement must relate to the circumstances of the occurrence.”
People v. Williams, 193 Ill. 2d 306, 352 (2000). “Courts employ a totality of the circumstances
analysis in determining whether a hearsay statement is admissible under the spontaneous
declaration exception.” Sutton, 233 Ill. 2d at 107. “The totality of the circumstances analysis
involves consideration of several factors, including time, the mental and physical condition of
the declarant, the nature of the event, and the presence or absence of self-interest.” Id. “The time
factor has been described as an ‘elusive’ factor, ‘whose significance will vary with the facts of
- 10 - each case.’ ” Williams, 193 Ill. 2d at 353 (quoting People v. House, 141 Ill. 2d 323,382 (1990)).
“Indeed, the period of time that may pass without affecting the admissibility of a statement under
the spontaneous declaration exception varies greatly.” Id. “The critical inquiry with regard to
time is whether the statement was made while the excitement of the event predominated.”
(Internal quotation marks omitted.) Sutton, 233 Ill. 2d at 107.
¶ 47 “A trial court’s evidentiary rulings on hearsay testimony and any applicable
exceptions are reviewed under an abuse-of-discretion standard.” People v. Burney, 2011 IL App
(4th) 100343, ¶ 40. “[A]n abuse of discretion occurs where the trial court’s decision is arbitrary,
fanciful, or unreasonable to the degree that no reasonable person would agree with it.” People v.
McDonald, 2016 IL 118882, ¶ 32.
¶ 48 2. This Case
¶ 49 We note defendant does not dispute that C.L.’s statements to Schmitt and Officer
Lohmeyer met the first and third requirements of the excited utterance exception—i.e., he does
not dispute that the occurrence was sufficiently startling or that the statements related to the
circumstances of the startling event. Instead, he challenges only the second requirement, arguing
that C.L. had sufficient time to fabricate her statements to Schmitt and Officer Lohmeyer.
¶ 50 a. C.L.’s Statements to Officer Lohmeyer
¶ 51 In support of his argument that C.L.’s statements to Officer Lohmeyer were not
excited utterances, defendant points to the following three factors: (1) Officer Lohmeyer was not
the first person she saw or spoke to after the occurrence, (2) the statements were made in
response to his questioning, and (3) C.L. “had approximately 16 minutes to speak with Schmitt
before she would have been able to speak to [Officer] Lohmeyer, giving her time to reflect upon
what had occurred.”
- 11 - ¶ 52 Initially, we note that in support of the first two factors identified by defendant, he
has cited several cases from the Second District for the following legal propositions: (1) “a
statement [is] spontaneous when the occurrence happened within the past few minutes and the
statement was made to the first person the declarant encountered, rather than in response to
questioning,” and (2) “[a]n intervening discussion between an occurrence and a statement a party
seeks to admit as an excited utterance destroys the spontaneity of the statement and might cause
the declarant to reflect on the statement, moving it outside the realm of the excited utterance
exception.” People v. Busch, 2020 IL App (2d) 180229, ¶ 41; see People v. Victors, 353 Ill. App.
3d 801, 810 (2004); see also People v. Sommerville, 193 Ill. App. 3d 161, 175 (1990).
¶ 53 We are unpersuaded by defendant’s cited cases, as they appear to conflict with the
precedent of both our supreme court and this court. Although our supreme court has noted that
“the fact that a declarant’s statement is made at the first opportunity to speak supports a finding
of spontaneity,” it has also made clear that “a declarant may make a spontaneous declaration to a
person even after having spoken previously to another.” Williams, 193 Ill. 2d at 352-53. Indeed,
the supreme court has explicitly stated, “We reject out of hand any contention that a declarant
cannot make a spontaneous declaration to a person after having spoken previously to another.”
House, 141 Ill. 2d at 386. Moreover, with respect to statements made in response to a question,
the supreme court has indicated that “[a]lthough a statement made in response to persistent
interrogation might not be admitted under the spontaneous declaration exception [citation], the
fact that a statement was made in response to a question does not necessarily destroy
spontaneity.” Williams, 193 Ill. 2d at 353; see, e.g., People v. Kinnerson, 2020 IL App (4th)
170650, ¶ 37 (holding that “the fact that [the declarant] answered questions posed by the 911
dispatcher [did not] destroy[ ] the spontaneity of her statements or show[ ] an opportunity for
- 12 - reflection”). Thus, we reject defendant’s argument that because C.L.’s statements to Officer
Lohmeyer were made in response to his questioning and after she had spoken to Schmitt, they
were not excited utterances. See, e.g., O’Casek v. Children’s Home & Aid Society of Illinois, 229
Ill. 2d 421, 440 (2008) (“[T]he opinion of one district, division, or panel of the appellate court is
not binding on other districts, divisions, or panels.”).
¶ 54 Further, we find it was not arbitrary or unreasonable for the trial court to conclude
there was an absence of time for C.L. to fabricate her statements to Officer Lohmeyer. C.L. made
her statements to Officer Lohmeyer at the scene of the crime. See Sutton, 233 Ill. 2d at 108
(finding the declarant “[c]learly” did not have time to fabricate his statements because he “made
his statements to the officers at the scene”). She had just been carjacked, thrown down a flight of
stairs, sexually assaulted, and threatened with death. See id. (stating courts must take into
consideration “the nature of the event”). When C.L. made her statements, she was sitting on her
living room floor on a blanket with blood on it that had come from “her genital region”; she was
also crying, distraught, and, according to Officer Lohmeyer, appeared to be in a state of shock.
See id. (stating courts must consider “the mental and physical condition of the declarant”).
Moreover, only approximately 16 minutes had passed since her conversation with Schmitt. See,
e.g., People v. Lisle, 376 Ill. App. 3d 67, 78 (2007) (finding that 18 minutes was an insufficient
amount of time for the declarant to fabricate his statement). Under these circumstances, it would
be reasonable to conclude that C.L. did not spend the time between the startling occurrence and
her statements to Officer Lohmeyer contemplating a fabricated version of the horrific events she
had just experienced. See People v. Gacho, 122 Ill. 2d 221, 241 (1988) (“We believe it is
inconceivable *** that [the victim] would have spent the time under these conditions to attempt
to fabricate a story or statement about the event.”). Accordingly, we find the trial court did not
- 13 - abuse its discretion in concluding C.L.’s statements to Officer Lohmeyer were excited utterances
“made while the excitement of the event predominated.” Sutton, 233 Ill. 2d at 107.
¶ 55 b. C.L.’s Statements to Schmitt
¶ 56 Defendant also maintains that C.L.’s statements to Schmitt were not excited
utterances because “C.L. provided a detailed account of what had occurred only after *** she
was given a gun and emergency services had been summoned, destroying the spontaneity of the
narrative.”
¶ 57 We find it was not arbitrary or unreasonable for the trial court to conclude there
was an absence of time for C.L. to fabricate her statements to Schmitt. Initially, we note that
C.L.’s statements to Schmitt were made at the first opportunity to speak, which supports a
finding that they were made spontaneously. See, e.g., Williams, 193 Ill. 2d at 352 (“[T]he fact
that a declarant’s statement is made at the first opportunity to speak supports a finding of
spontaneity.”). Also, as discussed above with respect to the statements she made to Officer
Lohmeyer, C.L. made the statements to Schmitt at the scene of the crime and while under
significant physical and emotional distress. See Sutton, 233 Ill. 2d at 108. Moreover, the fact that
C.L. expressed her concern that the assailants would return, and that Schmitt gave her a gun in
response, strongly supports a finding that “the statement was made while the excitement of the
event predominated.” Id. at 107. Accordingly, we find the trial court did not abuse its discretion
in concluding C.L.’s statements to Schmitt were excited utterances.
¶ 58 C. Confrontation Clause
¶ 59 Next, defendant contends that C.L.’s statements to Schmitt and Officer Lohmeyer
were testimonial in nature and their admission into evidence therefore violated his constitutional
right to confront the witnesses against him. “Whether a defendant has suffered a violation of the
- 14 - confrontation clause presents a question of law and is subject to de novo review.” Kinnerson,
2020 IL App (4th) 170650, ¶ 40.
¶ 60 1. The Law
¶ 61 “The Sixth Amendment’s Confrontation Clause, which is binding on the States
through the Fourteenth Amendment, provides: ‘In all criminal prosecutions, the accused shall
enjoy the right *** to be confronted with the witnesses against him.’ ” Ohio v. Clark, 576 U.S.
237, 243 (2015) (quoting U.S. Const., amend. VI). In Crawford, 541 U.S. at 51, the Supreme
Court explained that “witnesses,” under the confrontation clause, are those “who bear
testimony,” and it defined “testimony” as “a solemn declaration or affirmation made for the
purpose of establishing or proving some fact.” It thus interpreted the confrontation clause to
prohibit the “admission of testimonial statements of a witness who did not appear at trial unless
he was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Id. at 53-54; see Davis v. Washington, 547 U.S. 813, 821 (2006) (“It is the
testimonial character of the statement that separates it from other hearsay that, while subject to
traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”).
However, “Crawford did not offer an exhaustive definition of ‘testimonial’ statements. Instead,
Crawford stated that the label ‘applies at a minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police interrogations.’ ” Clark, 576 U.S. at 243-44
(quoting Crawford, 541 U.S. at 68).
¶ 62 “[T]he most important instances in which the [Confrontation] Clause restricts the
introduction of out-of-court statements are those in which state actors are involved in a formal,
out-of-court interrogation of a witness to obtain evidence for trial.” Michigan v. Bryant, 562 U.S.
344, 358 (2011). Whether a statement made in response to police interrogation is “testimonial”
- 15 - for purposes of the confrontation clause depends on “the primary purpose of the interrogation.”
Id. at 370. When the circumstances objectively indicate that “the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency,” the statement is not
testimonial. Davis, 547 U.S. at 822. On the other hand, “when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution,” the statement is testimonial for confrontation clause purposes. Id.
¶ 63 “To determine whether the ‘primary purpose’ of an interrogation is ‘to enable
police assistance to meet an ongoing emergency,’ [citation], which would render the resulting
statements nontestimonial, we objectively evaluate the circumstances in which the encounter
occurs and the statements and actions of the parties.” Bryant, 562 U.S. at 359. The Supreme
Court has summarized the “primary purpose” test as follows:
“As we suggested in Davis, when a court must determine whether the
Confrontation Clause bars the admission of a statement at trial, it should
determine the ‘primary purpose of the interrogation’ by objectively evaluating the
statements and actions of the parties to the encounter, in light of the circumstances
in which the interrogation occurs. The existence of an emergency or the parties’
perception that an emergency is ongoing is among the most important
circumstances that courts must take into account in determining whether an
interrogation is testimonial because statements made to assist police in addressing
an ongoing emergency presumably lack the testimonial purpose that would
subject them to the requirement of confrontation. *** [T]he existence and
duration of an emergency depend on the type and scope of danger posed to the
- 16 - victim, the police, and the public.” Id. at 370-71.
“In the end, the question is whether, in light of all the circumstances, viewed objectively, the
‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial
testimony.’ ” Clark, 576 U.S. at 244 (quoting Bryant, 562 U.S. at 358).
¶ 64 2. This Case
¶ 65 Defendant argues that C.L.’s statements to both Officer Lohmeyer and Schmitt
were “testimonial” under the confrontation clause.
¶ 66 a. C.L.’s Statements to Officer Lohmeyer
¶ 67 Defendant contends “C.L.’s statements to [Officer] Lohmeyer were testimonial
under the primary purpose test because” they “were made in response to police questioning when
there was no ongoing emergency” and they “described past events in great detail for the purpose
of assisting the Sheriff’s Office in investigating those events.” He maintains the statements “are
analogous to the statements the *** Supreme Court deemed testimonial in” Davis, because “C.L.
made the statements when [Officer Lohmeyer] knew the suspects were not on the scene and
there was no ongoing threat to C.L.” We disagree and, as discussed below, find instead that
C.L.’s statements to Officer Lohmeyer are distinguishable from the testimonial statements in
Davis and akin to the nontestimonial statements in Bryant.
¶ 68 In Davis, police officers responded “to a ‘reported domestic disturbance’ at the
home of Hershel and Amy Hammon.” Id. at 819. Amy told the officers that everything was fine,
and she allowed them to enter the house. Id. One of the officers questioned Hershel in the
kitchen, while “the other went to the living room to talk with Amy, and again asked her what had
occurred.” (Internal quotation marks omitted.) Id. The officer with Hershel later testified that
Hershel “became angry when [the officer] insisted that he stay separated from Mrs. Hammon so
- 17 - that [they] can investigate what had happened.” (Internal quotation marks omitted.) Id. at 820.
After Amy told the officer her account, she then completed and signed, at the officer’s request, a
“battery affidavit,” describing what had occurred. Id. On appeal, the Supreme Court held that
Amy’s statements were testimonial because it was “entirely clear from the circumstances that the
interrogation was part of an investigation into possibly criminal past conduct—as, indeed, the
testifying officer expressly acknowledged.” Id. at 829. The Supreme Court also found that
“[t]here was no emergency in progress” because “the interrogating officer testified that he had
heard no arguments or crashing and saw no one throw or break anything” and “[w]hen the
officers first arrived, Amy told them that things were fine [citation] and there was no immediate
threat to her person.” Id. at 829-30. Further, the Supreme Court relied on the fact that Amy’s
interrogation “was formal enough that [it] was conducted in a separate room, away from her
husband (who tried to intervene), with the officer receiving her replies for use in his
‘investigat[ion].’ ” Id. at 830.
¶ 69 In Bryant, police officers responded to a report that a man had been shot. Bryant,
562 U.S. at 349. “At the scene, they found the victim, Anthony Covington, lying on the ground
next to his car in a gas station parking lot. Covington had a gunshot wound to his abdomen,
appeared to be in great pain, and spoke with difficulty.” Id. The officers “asked him ‘what had
happened, who had shot him, and where the shooting had occurred.’ ” Id. “Covington stated that
‘Rick’ shot him” and “indicated that he had a conversation with Bryant *** through the back
door of Bryant’s house. Covington explained that when he turned to leave, he was shot through
the door and then drove to the gas station, where police found him.” Id. The conversation “ended
within 5 to 10 minutes when emergency medical services arrived. Covington was transported to
a hospital and died within hours.” Id.
- 18 - ¶ 70 On appeal, the Supreme Court held that the statements were not testimonial
“[b]ecause the circumstances of the encounter as well as the statements and actions of Covington
and the police objectively indicate that the ‘primary purpose of the interrogation’ was ‘to enable
police assistance to meet an ongoing emergency.’ ” Id. at 377-78 (quoting Davis, 547 U.S. at
822). The Supreme Court “first examine[d] the circumstances in which the interrogation
occurred” and concluded there was an ongoing emergency when the police arrived at the gas
station because “[n]othing Covington said to the police indicated that the cause of the shooting
was a purely private dispute or that the threat from the shooter had ended.” Id. at 371-72. It
reasoned, “The potential scope of the dispute and therefore the emergency in this case thus
stretches more broadly than [the private dispute] at issue in *** [Davis] and encompasses a
threat potentially to the police and the public.” Id. at 373. Next, in examining the statements and
actions of the parties, the Supreme Court noted that when Covington made the statements, he
“was lying in a gas station parking lot bleeding from a mortal gunshot wound” and “was
obviously in considerable pain and had difficulty breathing and talking.” Id. at 375. It thus
declined to “say that a person in Covington’s situation would have had a ‘primary purpose’ ‘to
establish or prove past events potentially relevant to later criminal prosecution.’ ” Id. (quoting
Davis, 547 U.S. at 822). As for the actions of the police officers, the Supreme Court found that
through their questioning, “they solicited the information necessary to enable them ‘to meet an
ongoing emergency.’ ” Id. at 376. Finally, the Supreme Court “consider[ed] the informality of
the situation and the interrogation,” ultimately concluding “[t]he informality suggest[ed] that the
interrogators’ primary purpose was simply to address what they perceived to be an ongoing
emergency, and the circumstances lacked any formality that would have alerted Covington to or
focused him on the possible future prosecutorial use of his statements.” Id. at 377.
- 19 - ¶ 71 Here, we find C.L.’s statements to Officer Lohmeyer were not testimonial. The
circumstances in which the interrogation occurred in this case demonstrate there was an ongoing
emergency. Unlike in Davis —which “involved domestic violence, a known and identified
perpetrator, and *** a neutralized threat”—nothing C.L. said to Officer Lohmeyer indicated that
the cause of the assault “was a purely private dispute or that the threat from [defendant] had
ended.” Id. at 364, 372. As was the case in Bryant, neither C.L. nor Officer Lohmeyer knew of
defendant’s location at the time of their conversation, meaning the “potential scope of the dispute
and therefore the emergency *** stretche[d] more broadly than [the private dispute] at issue in
Davis *** and encompasse[d] a threat potentially to the police and the public.” Id. at 373.
Indeed, Officer Lohmeyer testified that after arriving at the scene, his primary concern was
“community safety” and trying to figure out “[w]here this guy is at” in order to “stop any future
problems.” Moreover, when C.L. made her statements, she was sitting on her living room floor
on a blanket with blood from “her genital region” on it; she was also crying, distraught, and,
according to Officer Lohmeyer, appeared to be in a state of shock. Like the Supreme Court
concluded in Bryant, “we cannot say that a person in [C.L.’s] situation would have had a
‘primary purpose’ ‘to establish or prove past events potentially relevant to later criminal
prosecution.’ ” Id. at 375. Officer Lohmeyer’s questions to C.L.—asking her to recount what had
happened and to provide a description of the assailants—also mirror the officers’ questions in
Bryant because “they solicited the information necessary to enable them ‘to meet an ongoing
emergency.’ ” Id. at 376; see Davis, 547 U.S. at 827 (“[T]he initial interrogation conducted in
connection with a 911 call *** is ordinarily not designed primarily to ‘establis[h] or prov[e]’
some past fact, but to describe current circumstances requiring police assistance.”). Finally, the
informality of the questioning supports a finding that C.L.’s statements were not testimonial. It
- 20 - was unstructured, it occurred at the scene of the crime, and there was nothing formal—like the
“battery affidavit” signed by the declarant in Davis—that “would have alerted [C.L.] to or
focused h[er] on the possible future prosecutorial use of h[er] statements.” Id. at 377. Thus, we
find C.L.’s statements to Officer Lohmeyer were not testimonial for purposes of the
confrontation clause.
¶ 72 b. C.L.’s Statements to Schmitt
¶ 73 Defendant also argues that C.L.’s statements to Schmitt were testimonial because
they were made (1) “after 911 had been called,” (2) “in anticipation of imminent police
investigation,” and (3) “in an effort to recount the facts of a past crime in order to identify or
provide evidence to convict the perpetrator.”
¶ 74 In Clark, the Supreme Court addressed for the first time the question of “whether
statements to persons other than law enforcement officers are subject to the Confrontation
Clause.” Clark, 576 U.S. at 246. It “decline[d] to adopt a rule that statements to individuals who
are not law enforcement officers are categorically outside the Sixth Amendment,” finding instead
that such statements “could conceivably raise confrontation concerns.” Id. at 246, 249. However,
the Supreme Court emphasized that “[c]ourts must evaluate challenged statements in context,
and part of that context is the questioner’s identity. [Citation.] Statements made to someone who
is not principally charged with uncovering and prosecuting criminal behavior are significantly
less likely to be testimonial than statements given to law enforcement officers.” Id. at 249. In
resolving the specific issue before it, the Supreme Court held that the statements of a three-year-
old child—made in response to questioning from his preschool teachers, who suspected he was
being abused—were not testimonial because the “statements occurred in the context of an
ongoing emergency involving suspected child abuse” and “[t]here [wa]s no indication that the
- 21 - primary purpose of the conversation was to gather evidence for *** prosecution.” Id. at 246-47.
¶ 75 Here, we find that C.L.’s statements to Schmitt were not testimonial. Importantly,
Schmitt, who was acting as a private citizen and concerned husband, was not someone
“principally charged with uncovering and prosecuting criminal behavior,” and, as a result, C.L.’s
statements to him were “significantly less likely to be testimonial than statements given to law
enforcement officers.” Id. at 249. Having already concluded that C.L.’s statements to Officer
Lohmeyer were not testimonial, we likewise conclude that her statements to Schmitt—made in
the context of an ongoing emergency and prior to the arrival of law enforcement—were not
testimonial.
¶ 76 III. CONCLUSION
¶ 77 For the reasons stated, we affirm the trial court’s judgment.
¶ 78 Affirmed.
- 22 -