Judge Will Allow Alleged Victim Statement in Sex Abuse Trial

Delivering a victory to the prosecution and a blow to the defense, Cook County Judge Colleen Ann Hyland ruled Thursday that made by the alleged victim in the sex abuse case against Robert Phelan can be admitted.

Phelan, 57, is accused of sexually assaulting the 93-year-old dementia patient while she was being treated at an Orland Park care facility, where he was working as a nurse, according to prosecutors.

The Motion

Prosecutors filed a motion at a July 24 hearing to allow a statement the woman reportedly made immediately after the assault to be admitted as an "excited utterance."

According to Assistant Cook County State's Attorney Mary Norwell, a nurse at the facility observed Phelan in the woman's room on July 24, 2011. The nurse told authorities she saw Phelan touching the woman inappropriately, Norwell said.

The nurse first asked, "Are you OK?", and didn't get an answer, Norwell said. The nurse then asked the victim, "Did he touch you inappropriately?", according to Norwell.

The response, Norwell said, was, "'Did he touch me inappropriately? Yes!" The statement qualifies as an excited utterance, which is admissible under Illinois hearsay rule, according to Norwell.

Phelan's attorney, Howard Wise, argued the woman's statement was reflective of the question asked and was not spontaneous.

The Ruling

Ultimately, Hyland agreed with the prosecution, explaining in court Thursday that she had to consider three factors: If there was an occurrence that was sufficiently startling to prompt the statement; Whether there was an absence of time between the occurrence and the statement that wouldn't allow for fabrication; If the statement directly related to the occurrence.

"(In my evaluation), I do find that all three factors have been met," Hyland said. "Therefore, I find the statement to be admissible."

Hyland said she considered the defense's claim that the statement wasn't admissible because it was in response to an inquiry.

"Many courts have addressed this issue," she said. "A response to an inquiry does not destroy spontaneity."

The judge told Wise she would allow him to raise questions about the statement at trial during cross examination.

A visibly frustrated Wise spoke with Patch after Thursday's hearing, saying that while he respected Hyland's ruling, he disagreed with it.

Although mental capacity doesn't normally come into play with an excited utterance, he believes it should be considered when there is a leading question involved.

"You don't know if that person is making a statement or if they're just regurgitating what was said, because she has dementia," Wise said. "It would have been understandable if she had said, 'Hey, I was touched inappropriately.'"

Wise said allowing the statement will be very prejudicial at trial, considering that he won't be allowed to cross examine the victim because she will not be in court to testify.

The Next Court Date

Phelan is scheduled to be back in court on Oct. 23.

In the meantime, Hyland asked prosecutors to check on the results of a DNA test.

During the alleged incident, Phelan reportedly wasn't wearing gloves, which could mean there may be some evidence left behind, Wise said.

"But they could wait two years and they're not going to find anything," he said, adding the Phelan has been a nurse's assistant for years with no complaints.

He said the nurse who believed she saw an assault was mistaken.

"(Phelan) is nothing but a good caretaker and I'm going to prove his innocence at trial," Wise said.

Cook County State's Attorney's Office spokesman Andy Conklin said prosecutors have no comment on the case.