Dwyer convicted of aggravated battery
A jury of 12 (seven women, five men) convicted a former New Windsor man Tuesday, Feb. 24, 2009 of three of four charges after a day-and-a-half trial in Mercer County Court.
Ernest F. Dwyer, 50, of Rock Island, was arrested in mid October 2008 after an incident that occurred Oct. 14, 2008 at a rural address between Viola and New Windsor. Dwyer was charged with four counts of battery, including aggravated domestic battery, a Class 2 felony, domestic battery, - great bodily harm, a class 2 felony; battery - makes physical contact, a class A misdemeanor and battery - makes physical contact, a class A misdemeanor.
The Oct. 14, 2008 incident occurred in the early morning in the yard of Dwyer's property, where his wife and two step-children live.
Testimony was heard from Mercer County Sheriff's deputy Hallace Chapman, Dwyer's wife Laura, and his two step-sons, Justin Mott and a 14-year-old stepson.
Mercer County State's Attorney Greg McHugh called Chapman as the first state's witness. Chapman testified he was called to the Dwyer residence on Oct. 14, 2008 after the sheriff's department received a 911 call. He arrived at the rural location and first spoke to Justin Mott. "He was bleeding from the mouth really bad," said Chapman.
Chapman contacted the Rock Island County Sheriff's department and Dwyer was arrested at his residence there. "They transported him back to Preemption and I took him to the sheriff's office," he said.
Chapman looked over some photographs and identified the four photos he took of Mott's mouth, Mott's front teeth, blood on the ground near a machine shed and a neck injury.
He said Ernest made a written statement about the incident. "He said he was very provoked and tired of listening to Justin Mott's mouth."
On cross examination Defense Attorney Daniel Dalton asked Chapman about the response time.
Chapman said he arrived around 20 minutes after the 911 call was made.
The state next called Laura Dwyer to the stand. She pointed to the defendant to identify him.
McHugh asked whether she was living with her husband at the time.
She said no, he was living in Rock Island. She said they hadn't lived together since January 2006. She said he had not been out to the residence in more than a year.
She said that when Ernest came by the house she was inside sleeping. She said she worked third shift. Her 14-year old son came and woke her up to tell her Ernie was there. Her older son "was standing in the middle of the driveway and Ernie was in the barn, rummaging through stuff in the barn."
She said Ernie told her he was going to fix the fence because her worthless son would not do anything.
He continued to tell her "how bad the property looked."
She said she stepped in between Mott and her husband.
Ernie went on about how run down the property was.
"Justin responded it was his (Ernie's) fault, because he left."
Ernie then knocked her out of the way. He touched her arm and she fell down, she testified.
She said she saw her son catching his teeth and saw Ernie hit Justin two times with his right fist.
She said Ernie hit Justin on his left ear and the back of his head.
Dalton next questioned Laura.
He asked Laura about a tractor.
She said the tractor belonged to both her and Ernie and had been loaned out to someone in Matherville. She added that she and her son Justin went to Matherville to retrieve the tractor.
Laura was also questioned about statements made by her son about her husband's girlfriend.
"Dwyer's girlfriend was brought into the argument?" asked Dalton.
"It was already escalated," Laura said. She said she heard her son say some things about her husband's girlfriend, but could not recall the exact words that were said.
Dalton said Ernie wrote a statement and stated "she was brushed aside."
Laura said she was "knocked down, knocked out of the way so he could hit my son."
Dalton asked, "At that point was the fight over?"
"Yes," she said.
"You asked him to leave and he voluntarily left?" Dalton asked.
"Yes," she said.
Dalton said, "He was paying on the house loan and tractor loan, while not living there?"
"Yes," she said.
The next witness, Justin Mott, testified his little brother told him that a truck was driving by the property, back and forth slowly. He said he took off in his car after the truck, caught up to it and drove by it and then went back home.
He said that 45 minutes later Ernie came back into the yard. He testified that Ernie went into a grain bin, then the barn and rummaged around.
He asked Ernie what was he doing. Then his mother came out of the house and asked the same thing.
"Ernie then said 'Why are you sleeping, people die in bed,'" said Mott.
The argument escalated and about five minutes later Ernie "stiff armed my mom," said Mott.
He said Ernie hit him three times and after that he went to the hospital.
Dalton cross-examined Mott, saying the argument was about the fence. "That's what he showed up to do," said Dalton.
"I'm the one who put up the fence," said Mott.
Mott was asked if the fence was done.
"No, it was not all finished," said Mott.
Dalton asked Mott about the tractor, whether the man in Matherville had been notified they were coming to get the tractor, or whether Ernie had been told they were retrieving it.
Mott said no.
Dalton asked Mott about some of the statements he made about Ernie's girlfriend and Ernie told him what names he called her.
McHugh re-questioned Mott about what things Ernie said to him.
Mott said, "That I was a worthless piece of @)#_@ and that I was a drunk."
The final state's witness was the 14-year-old son of Laura Dwyer. He said he saw his brother being hit three times by Ernie. He also testified that his brother took off after the black truck and came back and told him it was Ernie and then about a half hour later Ernie came back to the yard.
The state rested and the defense called its witness, Ernest Frank Dwyer.
Dalton asked Dwyer why he went to the residence in Mercer County.
Dwyer said he does side jobs and his tractor was there so he went to get it.
He said his friend called him to tell him that Laura had come to take the tractor back. He then called Laura about it and she said that she needed the tractor to finish putting up fences.
"I told her she had two weeks to finish the fences."
Did she finish the fences?
No, said Dwyer. He said on Oct. 14 he went out to the property and walked around the property. He said there were places where the fence was laying on the ground where horses were able to get out.
He told the defense attorney that it had been a while since he had been out to the property. "I'm still paying out on in," he said.
On Oct. 14 he said he was heading to Matherville in regards to a piece of property there, to get the address. He stopped at the gas station there and bought a Pepsi, and looked around for fencing supplies.
Dalton asked him about when he was driving by the property and Justin came after him. "I pulled off to the side of the road and he flew past me," said Dwyer.
Then he went to Matherville, attained the address and came back to his property in New Windsor.
Justin was at the house in front of the grain bin. Dwyer said he went into buildings looking for fence wire keepers and fence posts. "He (Justin) followed my every move," said Dwyer.
Dalton asked Dwyer why he said to Laura the statement about "people dying in bed."
Dwyer explained it was a family joke and was not a threat.
Dalton asked what Justin had said to him.
He said Justin "told me to leave my property. I had no business being there."
"They'd had two weeks to fix the fences," said Dwyer. "I called him lazy, selfish and a punk kid."
Dwyer then repeated insults Justin had said about his girlfriend and him. "He said I wasn't nothing but a drunk."
He talked about when he hit Justin. He pointed out he was standing behind his mother and had his fist clenched. "In order to defend myself I hit him first," he said.
He admitted to hitting Justin two times.
He added that, "His mother had her arm out holding him back."
He said that his wife "maybe got nudged," during the incident.
He said he left when she asked him to leave and has only been back to the place with a police escort.
Testimony ended at around 3:15 p.m. on Monday and court resumed the next morning.
Judge James G. Conway instructed the jury that the state had the burden of proof beyond a reasonable doubt.
Both McHugh and Dalton gave closing arguments, with McHugh pointing back to the four charges. Count one, aggravated domestic battery, that the defendant hurt someone so bad that they are disfigured; count two, aggravated battery, that the defendant hit someone and caused great bodily harm; count three, aggravated battery against his wife; and count four touching his stepson in a provoking manner.
State's attorney McHugh pointed to the testimony of the officer, Ernest Dwyer's wife, and his two stepsons; how he started or got into an an argument with Justin Mott; that Ernest Dwyer admitted he had a temper; how six hours after the incident Ernest made a written statement -- "He gave his version of the incident."
The older stepson also admitted to saying some reprehensible things, said McHugh. "It shouldn't have happened. He was being honest with what he was saying."
McHugh said, "It's not often you have a third party being a witness."
He argued that the evidence showed there were no threats by the victim. "There was no real evidence, if there was threats being made," said McHugh.
He added, "Being provoked because his stepson was running his mouth is not self defense. It was pure angry aggression."
Defense attorney Dalton argued that the tractor being moved by Ernest Dwyer's wife and son without notifying either Ernest or the person who had borrowed it started the whole episode. "He finds out where it is," said Dalton. Then two weeks later he goes to his property to see if the fence had been repaired.
He said that Justin Mott "chases him down and gives him a dirty look."
Ernest goes to Matherville to look for fencing supplies and returns, only to have Mott shadowing him.
The argument started and "mom steps in between them. She's holding her son back." Dalton said that Laura tried to minimize Justin's action.
He called Laura Dwyer's testimony "not believable."
"My client did only what he had to do to defend himself." He pointed out that the fight stopped immediately.
McHugh responded to the defense's summary saying "he wasn't justified in what he did."
"This is not about a tractor, not about a fence. There was no testimony from anyone that Justin was the aggressor. Do you have the right to pound him so hard his teeth fell out?"
By 9:35 a.m. Tuesday, the attorney's had made their cases.
Judge Conway instructed the jury prior to dismissing them to render their verdict to look at the facts and evidence and make their judgment only on the evidence. He said the jury would not determine the punishment or sentence, but rather the trial judge would.
The defendant is presumed innocent and the evidence must be beyond a reasonable doubt, said Conway. At 10:16 a.m. the jury left to deliberate.
At 11:14 a.m. the jury returned to the courtroom and had reached its verdict. Counts 1, 2, and 4 the jury found the defendant guilty. Count 3, not guilty.
Dalton asked the jury to be polled, and each member gave its judgment.
The jury was discharged at 11:21 a.m.
Judge Conway ordered that a pre-sentence report be prepared by the probation department and ordered a continuation of "no contact" by the defendant with his wife and older stepson. Bond of 10 percent of $30,000 remained in effect.
A sentencing hearing was set for 2 p.m. on Tuesday, May 5, 2009.
McHugh said he was satisfied with the outcome of the case. "We always respect the jury's verdict. We think justice was done."