People v. Moffett

Defendant was charged with aggravated battery of a correctional institution employee. Court erred in dismissing, on speedy-trial grounds, count II of State's indictment. The original charge alleged that Defendant knowingly caused bodily harm to officer by biting her, and thus Defendant should have anticipated that State would also charge that battery was insulting or provoking. Count II of indictment was not a new and additional charge, and thus the continuances attributable to Defendant on the original battery charge were also attributable to her on the subsequent charge, and State did not violate Defendant's speedy-trial rights as to count II. Court erred in granting in part Defendant's motion in limine to exclude video evidence of the alleged battery. In video, officer's immediate exclamation "Ow!" was an excited utterance; and then another officer asked her, "Did she bite you?" and officer answered "Yes!", in the same agitated tone. As officer lacked the opportunity to fabricate her answer, this answer was also admissible as an excited utterance. (ZENOFF and HUDSON, concurring.)