People v. Garner, 2016 IL App (1st) 141583 (August). Episode 216 (Duration 7:21)
Expert witness may testify as to the defendant’s character to commit the crime.
Defendant drugged and killed her child when her husband told her he wanted a divorce. She took drugs as well, but she survived.
Defendant was not allowed to call a clinical psychologist who would have testified that it was his opinion that defendant was not a needy or dependent individual whose self-esteem or contentment with life was connected to the strength of her relationship with her husband.
It would be unlikely that she would have been so depressed with her husband’s infidelities that she would try to kill herself and her child.
The trial court ruled this would have been impermissible character evidence…but this was wrong.
Illinois Rule of Evidence 404(a)(1) & 405(a)
However, The Illinois Rules of Evidence have completely abrogated the prior rule prohibiting defendants from introducing character evidence through opinion testimony and instead expressly permitted the practice.
The rules now states that:
“In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same…”
The first part expressly prevents prosecutors from getting into defendant’s character.
Rule 405 then gets into the form of this evidence.
“In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation, or by testimony in the form of an opinion.”
This was plain error, however, because there was overwhelming evidence that defendant drugged her 6 year old daughter after her husband told her he wanted a divorce.
Additionally, the spousal privilege does not cover cases that involve the children. Here, the husband was allowed to testify against his ex wife.
Illinois’s marital communication privilege does not reach “cases in which either is charged with an offense against the person or property of the other, in case of spouse abandonment, when the interests of their child or children or of any child or children in either spouse’s care, custody, or control are directly…”
The content of the statements don’t matter. The exception applies to any case that meets the specific circumstances outlined in the statute.
Also, it was error to admit the grandmother’s statement that “she killed my baby, “I can’t believe she would do this,” and “I can’t believe she did this.”
The statements were made to paramedics as they were driving up to the house after the grandmother discovered the bodies.
The excited utterance exception is codified in Rule 803(2), which states:
“[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness: *** [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.”
For such statements to be admissible, there must be…
(1) an event that is “sufficiently startling to produce a spontaneous and unreflecting statement”
(2) the statement must have been made closely after the event such that the declarant did not have time to contemplate his or her words and create a fabrication; and
(3) the statement must relate to the event.
However, “there is a caveat to the spontaneous declaration exception of the hearsay rule that the declarant must have had an opportunity to observe personally the matter of which he speaks.”
The “startling event” for purposes of Rule 803(2) here would have been seeing defendant administer the aniti-depressant to the child, not walking into the house and seeing the dead child and a comatose defendant in the bedroom.
It was harmless error to admit this statement