People v. Perkins , 2018 IL App (1st) 133981 ( 2018 )

THIRD DIVISION
January 24, 2018
2018 IL App (1st) 133981
No. 1-13-3981
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 07 CR 16070
)
ALVIN PERKINS, ) Honorable
) Luciano Panici,
Defendant-Appellant. ) Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and opinion.
OPINION
¶1 The State charged defendant, Alvin Perkins, with the first degree murder of his ex-
girlfriend and neighbor, Teresa Iacovetti, who was shot in the face on June 26, 2007. Teresa died
from her injuries several days later. Within hours after being shot, Teresa identified defendant as
the shooter to three police officers, and those three identifications were all admitted into
evidence at defendant’s jury trial. The Cook County circuit court admitted one of those
identifications under the forfeiture-by-wrongdoing doctrine. Following the trial, the circuit court
of Cook County convicted defendant of first degree murder and sentenced him to 35 years in the
penitentiary for the murder and a consecutive sentence of 35 years for personally discharging the
firearm that caused Teresa’s death. Defendant appealed his conviction arguing, inter alia, the
trial court improperly admitted all three of Teresa’s statements identifying him as her shooter
and, in particular, the court erred when it applied the wrong standard to determine whether the
forfeiture-by-wrongdoing doctrine applied to admit one of the victim’s statements. We retained
jurisdiction of defendant’s appeal and remanded the matter to the trial court for the court to
determine whether the State proved, by a preponderance of the evidence, defendant shot Teresa
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with the intent of preventing her from testifying as a witness against him. On remand, the trial
court held a hearing, after which it found the State proved by a preponderance of the evidence
that defendant intended to prevent Teresa from testifying. Defendant filed a supplemental brief
concerning the hearing on remand but withdrew it. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 The State charged defendant by indictment with the first degree murder of his ex-
girlfriend and neighbor, Teresa Iacovetti, who was shot on June 26, 2007, and died several days
later. At the time he was charged, defendant faced the possibility of being sentenced to death if
convicted.
¶4 Procedural History
¶5 During court appearances prior to trial, defense counsel expressed concern about
defendant’s mental status. On April 15, 2009, defense counsel indicated to the court that
defendant’s fitness and sanity may be an issue at trial. Counsel also stated that defendant had a
mental health history. On July 9, 2009, defendant’s attorneys tendered a package of information
relating to defendant’s psychological history. At that time, defense counsel indicated that
defendant still needed to undergo psychological testing. The State also informed the court that
defendant was schizophrenic, questioned whether defendant was on medication, and indicated
that defendant would need to be tested. Defense counsel confirmed that defendant was on
medication.
¶6 On September 23, 2009, just as defense counsel presented a motion to preclude the death
penalty, defendant objected to his counsel’s representation and indicated that he wanted to
represent himself. Specifically, defendant stated: “Judge, I would like to speak on account of my
own behalf. I would like to represent myself pro se in this criminal proceeding thus far. I have an
objection to [defense counsel] representing me any farther in these proceedings. And I’m also
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demanding trial today. I’m demanding trial, sir, speedy trial today.” When the judge asked
defendant whether he understood “what’s involved in a death penalty case,” defendant
responded, “Sir, I don’t—I’m not interested in that right now, your Honor. I want to represent
myself, please. I have a Constitutional right to represent myself in these criminal proceedings.
And I’m demanding trial.” During this exchange, defense counsel advised the court that “we
have four experts, an investigator, and mitigator, as well as three attorneys on this case.
Nobody’s ready because experts’ work has not been completed, reports have not been produced,
and investigation is still ongoing.” Defense counsel then concluded, “So we’re not anywhere
near setting this case for trial.” The court then denied defendant’s request to represent himself.
¶7 Later, in May 2010, in response to defendant’s filing of pro se speedy trial demands, the
trial court informed defendant that it could not accept motions from him because he was
represented by counsel. In March 2011, after the parties agreed to a continuance, defendant
interrupted, saying that he had already complained to his lawyer about being locked up for three
years and nine months and that he wanted to go to trial. The court advised defendant that he was
represented by an attorney and the court would only accept motions from his attorney. The court
also stated the case could not proceed to trial until defendant’s attorney filed a certificate of
readiness because this was a death penalty case. Defendant responded, “Well, I am the one on
trial here.” Defendant again demanded trial, and the trial court judge responded that his request
was “[n]ot valid.”
¶8 At the request of defense counsel, the trial court ordered a fitness evaluation of defendant
at the end of 2009. In January 2010, defendant refused to participate in the evaluation, but the
evaluation was conducted on February 19, 2010. From that evaluation, it was reported that
defendant was fit for trial and sane at the time of the offense. However, the report noted that
fitness to stand trial while medicated would be assessed in a separate evaluation since defendant
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was on medication. Defense counsel then indicated that he would not be pursuing an insanity
defense.
¶9 The second evaluation found defendant fit for trial with medication, as he was taking
some psychotropic medications like Risperidone, Zyprexa, and Hydroxine. The doctor
evaluating defendant deferred any opinion as to defendant’s sanity at the time of the offense
since defendant had insisted he was not raising an insanity defense.
¶ 10 In March 2011, the trial court indicated that the death penalty was no longer an option in
the case since the death penalty had been abolished in Illinois. Nothing in the record indicates
that defendant renewed his request to represent himself after he was found fit for trial.
¶ 11 Prior to trial, defendant filed a motion in limine to exclude as hearsay three statements by
Teresa, now deceased, to police identifying defendant as the person who shot her. The shooting
itself occurred at approximately 12:20 a.m. on June 26, 2007. The first statement was made to
Officer Alfredo Salinas while Teresa was in the emergency room trauma center at approximately
1:46 a.m. In this statement, Teresa identified defendant as her shooter. The second statement was
made to Officer Daniel Riegler at approximately 2 a.m. Officer Riegler asked Teresa who shot
her, and she named defendant. Teresa then twice stated, “I can’t believe Alvin shot me.” The
third statement was made later that day, between 9 a.m. and 2 p.m., to Detective Mikal El-Amin.
Detective El-Amin asked Teresa what happened, and Teresa told him that she was watering
plants in the yard when she saw defendant enter the yard from the alley. She stated when
defendant came to the yard, he said, “I told you what was going to happen, b***.” She stated he
then pointed a gun at her and shot her in the face.
¶ 12 The parties argued the admissibility of the statements in two discrete motions: the first
concerning the identifications Teresa made to Officers Salinas and Riegler, and the second
regarding Teresa’s statement later in the day to Detective El-Amin, which was more detailed.
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¶ 13 At the hearing on the admissibility of the statements, the parties proffered statements
contained in the police reports and did not present any witnesses. With respect to the first two
statements, the defense argued that to admit those hearsay statements would violate defendant’s
sixth amendment rights. The State in turn argued the statements were admissible as either excited
utterances or dying declarations. The trial court admitted the first two statements as either dying
declarations or excited utterances, finding that there was not enough time for Teresa to fabricate
a story. With respect to the third, more detailed statement to Detective El-Amin, the State argued
the identification was admissible pursuant to the statutory forfeiture-by-wrongdoing exception to
the rule against hearsay found in section 115-10.7 of the Code of Criminal Procedure (725 ILCS
5/115-10.7 (West 2012)).
¶ 14 At the hearing on defendant’s motion in limine, the State argued that pursuant to
subsection (d) of the statute, if it proved by a preponderance of the evidence that defendant
murdered Teresa, the State was not required to show that defendant’s purpose in committing the
murder was to create the unavailability of a witness for the exception to apply and the statement
to be admitted. Even if the State did have to show a motive, the State contended that defendant
was motivated to kill Teresa to silence her from testifying about the fact defendant violated an
order of protection by contacting her on the night of the shooting and that he had a previously
stricken criminal damage to property case, which alleged defendant attempted to pry open
Teresa’s door about a month earlier.
¶ 15 The defense responded by arguing the State’s argument as to defendant’s motive was
illogical—it did not make sense for defendant to create a situation where he violated an order of
protection so that he then had to kill Teresa. Further, the defense argued the criminal damage to
property case had been stricken and could not automatically be reinstated. The court ultimately
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found the third identification was admissible where the State had met its burden and where there
was no intent requirement in the forfeiture-by-wrongdoing statute.
¶ 16 Defendant appealed his conviction on the grounds the trial court improperly admitted
Teresa’s hearsay statements and improperly denied his request to represent himself. Concerning
the admission of Teresa’s statements, defendant argued, in part, that the trial court used the
wrong standard when it admitted Teresa’s statements under the forfeiture-by-wrongdoing
doctrine. This court found that “[i]n ruling that the statements were admissible pursuant to the
statute, the trial court noted its interpretation of the statute and stated: ‘Basically it is saying, as I
read the statute, if the State is able to prove that the defendant, by a preponderance of the
evidence, killed the witness, then that’s all they have to prove.’ ” 2016 IL App (1st) 133981-U,
¶ 18. We noted that “the trial court judge never made a finding of fact regarding whether
defendant, by his actions, intended to procure Teresa’s absence at trial, which is a requirement
for the application of the forfeiture-by-wrongdoing doctrine under the Supreme Court’s ruling in
[Giles v. California, 554 U.S. 353, 377 (2008)].” 2016 IL App (1st) 133981-U, ¶ 19. Based on
the record then before us, we could not presume the trial court judge knew intent to kill the
witness to prevent her from testifying at trial was a requirement under the forfeiture-by-
wrongdoing doctrine and thus remanded the matter to the trial court for a hearing on whether the
State proved that contention by a preponderance of the evidence. Id. We ordered that following
the hearing on remand, we would “address the remaining issues including any issue that may
arise on remand from the hearing.” Id. ¶ 21.
¶ 17 At the hearing on remand, the State did not present any witnesses. The State argued the
evidence showed that defendant shot Teresa in the face “to ensure her unavailability against him
in a criminal damage to property case on a violation of order of protection.” The State argued
that defendant and Teresa had a dating relationship and that beginning in April 2007 “there were
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a series of events that he committed against her.” The State recounted incidents of defendant
using a screwdriver on Teresa’s sister’s car in an attempt to take back a windshield he had
installed, using a pry bar on the door to Teresa’s home, repeatedly calling Teresa and pounding
on her front door, and, the day after the last incident, breaking a window in Teresa’s house. The
State said the last incident resulted in a criminal damage to property case against defendant.
Police arrested defendant for the criminal damage to property, and defendant “told the police
officer, ‘I know what I’m going to need to do when I get out.’ ” When defendant was arrested,
the trial court entered a two-year order of protection against defendant ordering him to stay away
from Teresa, her son, and her house. The State argued that a few days after his arrest defendant
repeatedly called Teresa and his friends repeatedly called Teresa “making threatening remarks to
her about not going to court, about not testifying against him.” Teresa did not appear in court for
the criminal damage to property case, and the charges were stricken with leave to reinstate. The
order of protection was continued and was in effect following the dismissal with leave to
reinstate of the criminal damage to property case. The State recounted the instant offense, then
argued as follows:
“This evidence shows that the defendant was not going back to jail. He did
not want to go back to jail and some of the threatening phone calls he made to
Teresa in the criminal damage to property case, he would say, don’t call the
police, don’t call the police. Well, here he knew what he had to do. He was not
going back to jail.
So when Teresa was not amenable to his visitation after midnight, he
thought she’s calling the police, I’m not going back and he shoots her in the face
with the intent of preventing her from testifying in the criminal damage to
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property case and in certainly the violation of order of protection case that’s
coming as she’s calling the police.”
¶ 18 The defense argued the criminal damage to property case had been stricken and was not
pending and there was no pending violation of an order of protection. The defense argued there
was “nothing active or pending in the court system where we could presume [defendant] went to
[Teresa’s] house that morning intending to prevent her from going to court.” The defense further
argued “[t]here could be something to reinstate, but what motivation does the victim have here to
go to court and reinstate either the order of protection or the criminal damage to property case at
this point? There’s none.” The defense argued that defendant’s appearance on Teresa’s property
did not give rise to an inference that he put himself in that position so that he could kill her to
prevent her from going to court. The defense concluded by arguing it was not enough that
defendant went to Teresa’s home intending to kill her; “[y]ou have to show he went there
intending to *** produce her unavailability as a witness,” and Teresa “was not a witness against
him in anything.”
¶ 19 The State replied the forfeiture-by-wrongdoing doctrine does not require there to be a
pending case for the doctrine to apply. In support of that assertion, the State cited the decision in
People v. Hanson, 238 Ill. 2d 74 (2010), in which, the State argued, no case was pending against
the defendant when he killed his sister and the deceased sister’s statements were admitted against
the defendant under the forfeiture-by-wrongdoing doctrine. The State argued that case proved the
doctrine applied where the defendant feared a future prosecution in which the decedent would
have been a witness. The State pointed out that Teresa had called police about defendant
numerous times and defendant had “made it clear to the police that he knew what he needed to
do.” The State also asserted that in one of his phone calls to Teresa, defendant told Teresa he
“didn’t want her calling the police on him.” The State argued “it does not matter that there
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wasn’t a case pending. It’s that he actually shot her because he was not going back to jail. He
was not going to let her call the police. He was not going back for criminal damage to property.
He was not going back for violation of an order of protection.”
¶ 20 Following the parties’ arguments, the trial court first found that “as the defense alleges in
his response, there is no dispute to the facts that were presented by the State.” The court noted
that defendant kept calling and threatening Teresa, that his threats “worked the first time,” and
that defendant stated to police that he knew what he had to do when he got out after police
arrested defendant for criminal damage. The court held:
“the victim was in fear of her life and I believe that by [a] preponderance of the
evidence the State did prove that the defendant intended to prevent her from
testifying in a violation of an order of protection, if nothing, [sic] and also under
the possibility of having the case reinstated, the criminal damage to land case. So
therefore I believe that the common law forfeiture by wrongdoing [applies] ***.”
¶ 21 Defendant filed a supplemental brief concerning the ruling on remand but later filed a
motion to withdraw that brief and dispense with further briefing. The motion to withdraw states
“the briefs previously filed in this case adequately address the unresolved issues remaining
before [the appellate court]” and asks this court to “decide the issues remaining before it.”
¶ 22 Trial Evidence
¶ 23 At defendant’s jury trial, Erik DePillars, Teresa’s son who was nine years old when
Teresa was shot, testified that shortly after midnight on June 26, 2007, he was in the living room
reading a book. He heard a knock at the door and answered it. Erik testified that he recognized
the man at the door as his mother’s ex-boyfriend, Alvin Perkins. Erik stated that he went and sat
back down while his mother talked to defendant at the front door. Erik testified that after a few
minutes his mother shut the door and locked it and ran to the back door. Erik did not know what
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was going on, so he got up and walked towards the back of the house. He was waiting in the
kitchen when he heard his mother scream, then heard a “crack” that sounded like a gunshot. He
grabbed a knife from the kitchen and ran outside. Once outside, Erik saw his mother lying on the
back step in a puddle of blood. He did not see anyone else in the backyard. He went inside and
called police. When he came back out, his mother was still conscious, and a neighbor had come
over and was using a hose to wash blood off his mother’s face.
¶ 24 Officer Alfredo Salinas testified that at about 12:20 a.m., he and his partner received a
call about shots fired. They arrived at Teresa’s house about three to four minutes later. They
went to the backyard and saw Teresa receiving aid from paramedics. Officer Salinas and his
partner had a brief conversation with Erik, and after that, they began to look for defendant.
Officer Salinas walked from Teresa’s home across the alley to defendant’s apartment building.
He knocked on the back door, but there was no response. He went around to the front door, and
defendant answered. Officer Salinas recounted that defendant did not appear to be out of breath,
he did not have any blood on him anywhere, and he did not have a gun on him. Officer Salinas
arrested defendant and gave him his Miranda (384 U.S. 436 (1966)) warnings. He asked
defendant whether he had spoken with Teresa, and defendant responded that “he had had contact
with her approximately an hour prior, and that he had called her around 12:00 midnight on her
phone.” The officers made a cursory search of defendant’s house and Teresa’s backyard but did
not find a gun.
¶ 25 Officer Salinas then went to the hospital where Teresa had been taken and spoke with her
at 1:46 a.m. They spoke for about two minutes until hospital personnel told Officer Salinas to
stop. Officer Salinas recounted that Teresa recognized him by name based on a previous incident
a month earlier. He noted that she appeared to be in a lot of pain but could still speak coherently.
Teresa told Officer Salinas that defendant had shot her in the face.
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¶ 26 Officer Daniel Riegler testified that when he arrived at Teresa’s house at about 1:30 a.m.,
he noticed a lot of blood on the back patio and on the rear wall of the house. He collected a .22-
caliber shell casing, a cordless telephone, and a 40-ounce bottle of malt liquor. He also took
photos of the scene and the items he recovered. After spending about half an hour at the scene,
Officer Riegler went and spoke with Teresa at the hospital. He recounted that Teresa was still in
the emergency room trauma center and her mother, brother, and son were present. Officer
Riegler testified that she appeared coherent and able to understand his questions. Officer Riegler
asked who shot her, and she named defendant. She then twice stated, “I can’t believe Alvin shot
me.” After visiting Teresa, Officer Riegler went to the Chicago Heights police department and
spoke with defendant. He collected defendant’s shirt and put it in a paper evidence bag, which
was submitted to the state police for testing.
¶ 27 Detective El-Amin testified that he spoke with Teresa sometime between 9 a.m. and 2
p.m. on the day of the shooting and she gave him a narrative statement about the shooting. He
asked Teresa what happened, and she told him that she was watering plants in the yard when she
saw defendant enter the yard from the alley. She stated when defendant came into the yard, he
said, “I told you what was going to happen, b***;” and that is when he raised his hand with a
gun in it and shot her in the face. She said she fell to the ground and realized she was bleeding
heavily. Her son came to the yard, and then a neighbor came over and used a hose to wash some
of the blood off her face.
¶ 28 Ellen Chapman, a forensic scientist with the Illinois State Police Forensic Science
Center’s evidence unit, testified that she was tasked with checking a shirt for gunshot residue.
She took samples from the shirt’s right sleeve and right shoulder. The sample from the right
sleeve contained some particles but not enough to be able to say it was positive for residue. She
said the sample from the right shoulder did have “unique tricomponent gunshot residue
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particles.” She opined that this would mean either that the shirt contacted an item with gunshot
residue, it was within the environment of a fired gun, or someone wearing the shirt fired a gun.
¶ 29 It was stipulated that a July 5, 2007, autopsy revealed that Teresa died from a gunshot
wound to the right side of her face.
¶ 30 The State introduced evidence related to an incident that occurred in May 2007. Officer
Salinas testified that on May 6, 2007, he had been dispatched to Teresa’s house for a call
regarding criminal damage to property. Officer Salinas spoke with Teresa and Travis Mitchell,
then arrested defendant at his apartment, located directly behind Teresa’s house. As Officer
Salinas was processing defendant, defendant said out loud, “I know what I am going to have to
do when I get out of jail.” Travis Mitchell testified that he was at Teresa’s house that night,
playing with Erik and another friend. They heard someone knocking at the door, and eventually
they heard glass break. He looked through a window and, as a result, was able to identify
defendant in court as the person he saw banging on the door. Mitchell said he and the other boys
got scared and ran to the back of the house and made a telephone call to Teresa, who was not
home at the time. Teresa called the police, and she ended up arriving back home a few minutes
later.
¶ 31 Finally, the State was permitted to introduce a plenary order of protection Teresa had
against defendant that was in place at the time of the shooting.
¶ 32 Defense counsel moved for a directed verdict, which was denied.
¶ 33 The defense called Jesse Taylor, who testified that on the evening of the shooting, he and
defendant were at defendant’s apartment drinking a few beers and playing chess. At around
“eleven something,” defendant had fallen asleep, and Taylor left to go to his mother’s house,
which was about 10 to 12 minutes away by bicycle. He recalled that he got to his mother’s house
sometime before 12 a.m.
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¶ 34 Larrison Molex testified that he stopped by defendant’s house that night at around 11
p.m., but he only stayed for about four or five minutes. He recalled that defendant and Taylor
were playing chess at the time.
¶ 35 The jury returned a guilty verdict as to first degree murder.
¶ 36 The defense filed a posttrial motion challenging, among other issues, the admission of
Teresa’s statements of identification to police at the hospital. That motion was denied.
¶ 37 The trial court sentenced defendant to a term of 70 years in prison, 35 years for murder
and 35 years for personally discharging the firearm that caused Teresa’s death. Defendant filed a
motion to reconsider, which was denied. Defendant timely filed a notice of appeal, and an
amended notice of appeal was allowed on January 6, 2015. On appeal, defendant argues the trial
court erred in denying his motion to represent himself and in allowing Teresa’s statements of
identification into evidence.
¶ 38 ANALYSIS
¶ 39 Defendant argues his conviction must be reversed and the matter remanded for a new trial
because (1) the trial court denied him his right to represent himself at trial and (2) the admission
of Teresa’s three statements to police identifying him as her killer violated his sixth amendment
right to confront witnesses. We address each argument in turn.
¶ 40 Defendant’s Request for Self-Representation
¶ 41 A defendant has a constitutional right to represent himself. Faretta v. California, 422
U.S. 806, 835 (1975); People v. Baez, 241 Ill. 2d 44, 115 (2011). To represent himself, a
defendant must knowingly and intelligently relinquish his right to counsel. Faretta, 422 U.S. at
835; Baez, 241 Ill. 2d at 115-16. It is well settled that waiver of counsel must be clear and
unequivocal, not ambiguous. Baez, 241 Ill. 2d at 116. A defendant waives his right to self-
representation unless he articulately and unmistakably demands to proceed pro se. Id. The
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purpose of requiring that a criminal defendant make an unequivocal request to waive counsel is
to: “(1) prevent the defendant from appealing the denial of his right to self-representation or the
denial of his right to counsel, and (2) prevent the defendant from manipulating or abusing the
system by going back and forth between his request for counsel and his wish to proceed pro se.”
People v. Mayo, 198 Ill. 2d 530, 538 (2002). In determining whether a defendant’s statement is
clear and unequivocal, a court must determine whether the defendant truly desires to represent
himself and has definitively invoked his right of self-representation. Baez, 241 Ill. 2d at 116.
¶ 42 Although a court may consider a defendant’s decision to represent himself unwise, if his
decision is freely, knowingly, and intelligently made, it must be accepted. People v. Lego, 168
Ill. 2d 561, 563-64 (1995); People v. Silagy, 101 Ill. 2d 147, 179-80 (1984). The requirement of
knowing and intelligent choice “calls for nothing less than a full awareness of both the nature of
the right being abandoned and the consequences of the decision to abandon it.” Lego, 168 Ill. 2d
at 564. The determination of whether there has been an intelligent waiver of the right to counsel
must depend, in each case, upon the particular facts and circumstances of that case, including the
background, experience, and conduct of the accused. Id. at 565. Courts must “indulge in every
reasonable presumption against waiver” of the right to counsel. Brewer v. Williams, 430 U.S.
387, 404 (1977); People v. Burton, 184 Ill. 2d 1, 23 (1998).
¶ 43 If the trial court allows the defendant “to proceed pro se, the trial court must determine,
in open court, that the defendant understands the nature of the charge, the minimum and
maximum sentence pr[e]scribed by law, and that he has a right to have counsel appointed if he is
indigent.” People v. Harris, 2013 IL App (1st) 111351, ¶ 79; Ill. S. Ct. R. 401(a) (eff. July 1,
1984) (“Any waiver of counsel shall be in open court. The court shall not permit a waiver of
counsel by a person accused of an offense punishable by imprisonment without first, by
addressing the defendant personally in open court, informing him of and determining that he
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understands the following: (1) the nature of the charge; (2) the minimum and maximum sentence
prescribed by law, including, when applicable, the penalty to which the defendant may be
subjected because of prior convictions or consecutive sentences; and (3) that he has a right to
counsel and, if he is indigent, to have counsel appointed for him by the court.”).
¶ 44 Defendant concedes he forfeited his claim regarding the trial court’s denial of his request
to represent himself where it was not objected to at trial or in his motion for a new trial; however,
as both parties correctly point out, an error in denying a defendant the right to represent himself
is a structural error that we may review regardless of forfeiture. People v. Washington, 2012 IL
110283, ¶ 59 (a structural error is “a systemic error that serves to erode the integrity of the
judicial process and undermine the fairness of a trial”); People v. Jackson, 2015 IL App (3d)
140300, ¶¶ 54, 56. We review a trial court’s determination on the issue of self-representation for
an abuse of discretion. See Burton, 184 Ill. 2d at 25 (finding no abuse of discretion in requiring
counsel’s continued representation); People v. Jackson, 228 Ill. App. 3d 868, 875 (1992). An
abuse of discretion occurs only where the trial court’s ruling is arbitrary, fanciful, or
unreasonable, or where no reasonable person would take the view adopted by the trial court.
People v. Phillips, 392 Ill. App. 3d 243, 272 (2009).
¶ 45 On September 23, 2009, defendant stated to the trial court: “Judge, I would like to speak
on account of my own behalf. I would like to represent myself pro se in this criminal proceeding
thus far. I have an objection to [defense counsel] representing me any farther in these
proceedings. And I’m also demanding trial today. I’m demanding trial, sir, speedy trial today.”
When the judge asked defendant whether he understood “what’s involved in a death penalty
case,” defendant responded, “Sir, I don’t—I’m not interested in that right now, your Honor. I
want to represent myself, please. I have a Constitutional right to represent myself in these
criminal proceedings. And I’m demanding trial.” Following comments by defendant’s attorney,
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the court denied defendant’s request to represent himself. Defendant argues the trial court abused
its discretion when it denied his request to represent himself because (1) defendant’s legal
acumen should not have been considered in the trial court’s determination, (2) defendant had no
mental defects that would have prevented him from proceeding pro se as he was found fit for
trial, and (3) the trial court failed to follow Illinois Supreme Court Rule 401 (eff. July 1, 1984) in
considering defendant’s request.
¶ 46 The State argues the trial court properly denied defendant’s request to represent himself
where defendant’s request was not unequivocal, defendant did not understand the nature of the
charges against him, and defendant lacked the mental ability to knowingly and intelligently
relinquish his right to counsel.
“A finding that the right to counsel has been waived is not to be made lightly.
[Citations.] In assessing the validity of a waiver, a reviewing court must
determine whether there was an intelligent relinquishment or abandonment of a
known right or privilege. [Citation.] More than a routine inquiry is required to
make this determination. [Citation.] Such a finding should be preceded by a
careful inquiry by the court, aimed at determining the defendant’s ability to
conduct his own defense. [Citation.] Moreover, the waiver of any constitutional
right requires the highest level of competency. [Citations.] In this context one
court has stated that ‘[a]ny waiver of counsel is carefully scrutinized “[b]ecause of
the importance of the right to counsel in preserving the free exercise of other
constitutional rights in the criminal process.” [Citation.]’ [Citation.]
Thus, in addition to engaging in a colloquy with the defendant to advise
him of his right to counsel, the court must still determine for itself whether the
accused has the requisite capacity to effectuate an intelligent waiver of his right.
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The objective criteria commonly utilized by courts to make this determination are
the defendant’s age [citation], level of education [citation], mental capacity
[citation] and prior involvement, if any, in legal proceedings [citation]. On the
basis of the surrounding circumstances and these relevant factors, the trial court
must make a subjective evaluation of whether an accused was aware of what he
was doing.” (Emphasis added.) People v. Vanderwerff, 57 Ill. App. 3d 44, 49-50
(1978).
¶ 47 We find that the trial court did not abuse its discretion when it denied defendant’s request
to represent himself. The sixth amendment requires the court to honor a defendant’s choice to
represent himself, even if the choice is in all likelihood a disastrous one for the defense, “[u]nless
the defendant [has] a mental disability that incapacitated him from understanding the content of
Rule 401(a).” People v. Fisher, 407 Ill. App. 3d 585, 590 (2011).
“[D]efendant’s request for self-representation may be denied when, despite the
court’s efforts to explain the consequences of waiver, the court finds the
defendant is unable to reach the level of appreciation needed for a knowing and
intelligent waiver. ([2 Wayne R. LaFave and Jerold H. Israel, Criminal Procedure
§ 11.5(d), at 47-48 (1984)].) We emphasize, however, that this is an inquiry into
the defendant’s ability to make a knowing and intelligent waiver of his right to
counsel; it is not an inquiry into defendant’s ability to do an appropriate job
defending himself at trial. As Professors LaFave and Israel have noted, ‘Trial
courts hesitate to deny the request of an adult defendant unless he appears to be
suffering from some significant mental disability.’ (LaFave and Israel, § 11.5(d),
at 48.) We agree that this standard should guide the trial courts as they make such
inquiries and resolve the question of whether defendant can make an intelligent
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waiver of his right to counsel.” People v. Ward, 208 Ill. App. 3d 1073, 1084
(1991).
¶ 48 The record shows that at the time defendant made the request to represent himself, the
trial court was aware there was an issue raised concerning defendant’s mental capacity and
statements that defendant was schizophrenic and taking psychotropic medication. Further, when
defendant requested to represent himself, he requested a trial that day, even though discovery had
not yet been completed. Most importantly, when the trial judge asked defendant if he understood
what was involved in a death penalty case, defendant responded, “Sir, I don’t—I’m not
interested in that right now, your Honor.” Based on these facts, and given that we are to “indulge
in every reasonable presumption against waiver” of the right to counsel (Burton, 184 Ill. 2d at
23), we cannot say that no reasonable person would have adopted the view of the trial court in
finding defendant’s request to represent himself was not knowingly and intelligently made.
Phillips, 392 Ill. App. 3d at 272. Further, contrary to defendant’s argument on appeal that the
trial court applied a defective standard in evaluating his request by considering his understanding
of capital litigation, defendant’s lack of the requisite capacity to effectuate an intelligent waiver
of his right to counsel “had nothing to do with inquiring into *** defendant’s ability to conduct
his own defense.” See Ward, 208 Ill. App. 3d. at 1083 (“the Vanderwerff court was discussing
inquiries the trial court should make when determining whether a defendant is making ‘an
intelligent relinquishment or abandonment of a known right or privilege.’ These inquires
concerned waiver; they had nothing to do with inquiring into the defendant’s ability to conduct
his own defense ***.” (Emphases omitted.)). Finally, we note that after defendant was found fit
for trial with medication, he did not renew his request to represent himself.
¶ 49 Defendant also argues the trial court “failed to comply with Supreme Court Rule 401(a),
which constitutes reversible error in and of itself.”
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“A defendant who wishes to act pro se desires to stand alone, but this does not
occur if a lawyer assists him at trial. In this instance, a defendant receiving such
legal advice should not be heard to complain on appeal of improprieties pertaining
to admonishments about proceeding pro se or of deficiencies apparent of record
relating to a waiver of legal assistance.” (Emphasis and internal quotation marks
omitted. People v. Cemond, 229 Ill. App. 3d 857, 863 (1992).
Because he lacked the mental capacity to make a knowing and intelligent waiver of counsel,
defendant did not waive counsel and proceeded with the assistance of an attorney. In such a
situation, the admonitions of Rule 401(a) are not required to be given. See id. at 862-63 (where
trial court allowed the defendant to proceed pro se but “with the assistance” of an attorney who
would be there “at all hearings [to] assist *** in any way”). We find no error in the trial court’s
denial of defendant’s request to proceed pro se.
¶ 50 Admissibility of Victim’s Identification
¶ 51 Teresa gave three statements to police officers identifying defendant as her shooter before
she died, all of which the trial court admitted in defendant’s trial. Defendant argues these three
statements of identification by Teresa were improperly admitted based on hearsay and the
confrontation clause. When the admissibility of statements is at issue and the defendant raises
both state hearsay claims and constitutional confrontation clause claims, our supreme court has
instructed that reviewing courts must first determine whether the statements are admissible under
state hearsay laws before deciding any constitutional issues. In re E.H., 224 Ill. 2d 172, 179-80
(2006) (“Only once the statement has first been found admissible as an evidentiary matter should
constitutional objections—including Crawford-based confrontation clause claims—be dealt with.
[Citations.] This is the only analytical ‘flow chart’ that comports with the rule that courts must
avoid considering constitutional questions where the case can be decided on nonconstitutional
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grounds.”). See also People v. Melchor, 226 Ill. 2d 24, 34 (2007). Therefore, we first address
defendant’s hearsay claims. Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted. People v. Gonzalez, 379 Ill. App. 3d 941, 954 (2008). Generally, hearsay
statements are inadmissible, but that rule has certain exceptions. People v. Dunmore, 389 Ill.
App. 3d 1095, 1106 (2009).
¶ 52 At the outset, we note the parties disagree over the standard of review that should be
applied when determining whether the trial court erred when it admitted Teresa’s three
statements of identification under exceptions to the hearsay rule. The State argues it is well
settled that evidentiary rulings are within the sound discretion of the trial court and are reviewed
for an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001). Defendant argues there are
no contested facts in this case and, as a result, pursuant to People v. Aguilar, 265 Ill. App. 3d
105, 109 (1994), we should apply a de novo review to the trial court’s admission of Teresa’s
statements into evidence. For the reasons stated in People v. Jenkins, 2013 IL App (4th) 120628,
¶¶ 16-17, we find Aguilar inapplicable here. In Jenkins, the appellate court stated:
“Aguilar is different from this case, however, because, in Aguilar, the dispute was
over the legal content of a hearsay exception—what the exception said—whereas,
in the present case, the legal content of the hearsay exceptions is undisputed, and
the only dispute is whether the trial court had to draw the factual inferences that
would have brought the third statement within the hearsay exceptions.
In Aguilar, the trial court erroneously believed that, under the law, a
hearsay statement by a defendant was admissible in evidence as an ‘admission’
only if the statement was an admission that the defendant had committed a crime
or only if it was an admission of an element of the charged offense. [Citation.]
The question on appeal, then, was purely a legal question regarding the content of
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the hearsay exception for admissions, a content determined solely by the common
law: Did a hearsay statement by a defendant have to be inculpatory to be
admissible as an admission? [Citation.] The appellate court said: ‘The trial judge’s
decision was based on his interpretation of the admissions exception to the rule
against hearsay. This case involves a legal issue and did not require the trial court
to use its discretion regarding fact-finding or assessing the credibility of
witnesses.’ [Citation.] The appellate court decided, de novo, that the trial court
was mistaken in its belief that an admission had to be inculpatory. [Citation.]
According to case law, ‘[a]ny statement by an accused person, unless excluded by
the privilege against self-incrimination or other exclusionary rules, [might] be
used against him as an admission.’ [Citation.]” (Emphasis in original.) Id.
¶ 53 We agree with the analysis in Jenkins and find that it applies equally here; as such, we
follow the rationale laid out in Jenkins and find that the de novo standard of review is improper
in this case. Id. The parties do not argue the trial court misinterpreted the exceptions to the state
hearsay statutes as in Aguilar. Rather, defendant argues that, pursuant to the specific facts of this
case, the trial court improperly found the statements fell within the statutory hearsay exceptions.
The trial court has discretion to determine whether statements are hearsay and, if so, whether
they are admissible under an exception. People v. Spicer, 379 Ill. App. 3d 441, 449 (2008). Thus,
we will reverse the trial court’s hearsay ruling only for an abuse of discretion. Id. at 450. An
abuse of discretion occurs where the trial court’s ruling is arbitrary, fanciful, or unreasonable or
where no reasonable person would take the view adopted by the court. People v. Illgen, 145 Ill.
2d 353, 364 (1991). Further, a factual determination is against the manifest weight of the
evidence only if the evidence clearly and indisputably calls for the opposite factual
determination. Robrock v. County of Piatt, 2012 IL App (4th) 110590, ¶ 33. We may affirm the
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trial court when correct for any reason appearing in the record. People v. Merz, 122 Ill. App. 3d
972, 976 (1984).
¶ 54 The trial court admitted Teresa’s first two statements under the dying declaration and
excited utterance exceptions to the rule against hearsay and the third statement under the
forfeiture-by-wrongdoing exception. We will address each exception to the hearsay rule below.
¶ 55 Dying Declaration
¶ 56 The State argues Teresa’s first two statements to police were admissible as dying
declarations. A dying declaration is a statement of fact the victim made about the cause or
circumstances of the homicide and is an exception to the hearsay rule under the Illinois Rules of
Evidence. People v. Gilmore, 356 Ill. App. 3d 1023, 1031 (2005). Illinois Rule of Evidence
804(b)(2) provides as follows: “The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness: *** (2) Statement Under Belief of Impending Death. In a
prosecution for homicide, a statement made by a declarant while believing that the declarant’s
death was imminent, concerning the cause or circumstances of what the declarant believed to be
impending death.” Ill. R. Evid. 804(b)(2) (eff. Jan. 1, 2011). A dying declaration is admissible as
an exception to the hearsay rule because it poses a guarantee of trustworthiness based on the
assumption that the belief of impending death excludes the possibility of fabrication by the
declarant. People v. Georgakapoulos, 303 Ill. App. 3d 1001, 1008 (1999).
¶ 57 To admit a statement as a dying declaration, the proponent must show (1) the statement
relates to the cause or circumstances of the underlying homicide, (2) the declarant believes death
is impending and almost certain to imminently follow, and (3) the declarant is mentally capable
of giving an accurate statement regarding the cause or circumstances of the homicide. People v.
Graham, 392 Ill. App. 3d 1001, 1006 (2009). The existence of these factors must be proven by
the profferor beyond a reasonable doubt, based upon an examination of the totality of the facts
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and circumstances surrounding the declaration. Georgakapoulos, 303 Ill. App. 3d at 1009. Belief
in the imminence of death may be shown by the declarant’s own statements or from
circumstantial evidence, such as the nature of the wounds or statements made in the declarant’s
presence. Id.; Graham, 392 Ill. App. 3d at 1006. At the time the statement is made, the declarant
must be able to perceive and give a true and correct account of the facts to which the statement
relates. Georgakapoulos, 303 Ill. App. 3d at 1009. “Courts of review are reluctant to disturb the
trial court’s ruling on the admissibility of a purported dying declaration [citations], and they will
not disturb that determination unless it is palpably contrary to the manifest weight of the
evidence [citations].” Id.; People v. Cobb, 186 Ill. App. 3d 898, 908 (1989) (“Our supreme court
has stated that it is ‘reluctant to disturb the ruling of the trial judge on the admissibility of a
purported dying declaration.’ ” (quoting People v. Odum, 27 Ill. 2d 237, 239 (1963)).
¶ 58 In the trial court’s oral ruling, it discussed the excited utterance exception to the hearsay
rule in depth: “Okay. For a hearsay statement to be admissible under the spontaneous declaration
or excited utterance exception there must be an occurrence sufficiently startling, reflective
statement. There must be time—(inaudible)—the statement must relate to the circumstances of
the occurrence.” The judge then analyzed People v. Lisle, 376 Ill. App. 3d 67 (2007), a case in
which statements were admitted as excited utterances, compared it favorably to this case, and
stated:
“And in this case, specifically, when the police officer came in and she said these
things, the statement, in itself, reflects an excited utterance, ‘I cannot believe that
Alvin did this.’ It is not something that, oh, Alvin did it, Alvin Perkins did this.
She is like reflecting, I cannot believe this. So it is an excited utterance, and for
that reason, it is admissible under the dying declaration exception to the hearsay
rule. And for those reasons, those statements will come in.”
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The trial court made no factual findings on the record when it ruled that Teresa’s first two
identifications were admissible as dying declarations. In fact, the oral ruling was devoted almost
entirely to a finding that the statements were excited utterances and mentioned dying declaration
almost as an afterthought. The trial court judge did not discuss the dying declaration exception to
the hearsay rule at any other time in his oral ruling or point out any evidence that would support
a finding of a dying declaration. Defendant argues there was no evidence to suggest Teresa in
fact thought her death was imminent. We agree.
¶ 59 In People v. Beier, 29 Ill. 2d 511, 515 (1963), the supreme court reversed the admission
of a statement made by a man who had been shot in the face because there was no other evidence
that he believed his death to be imminent. In so ruling, the court stated:
“The belief of the dying man that death is impending furnishes the guaranty of
truthfulness which makes his declaration admissible in evidence. The rule is that
such a declaration must be made under the fixed belief and moral conviction of
the person making it that his death is impending and certain to follow almost
immediately, without opportunity for repentance and in the absence of all hope of
avoidance, when he has despaired of life and looks to death as at hand. [Citation.]
As this court said in the Maria case [citation.], ‘In the first instance the court must
be satisfied, beyond a reasonable doubt, that the statement was made in extremis,
and unless it was so made it should not be allowed to go to the jury.’ ” Id.
¶ 60 We acknowledge that a bullet wound to the face is serious. However, similar to Beier,
there is nothing in the record from which we can find that Teresa believed her death was
impending and almost certain to imminently follow. There are no statements from Teresa
indicating she thought her death was imminent, and there are no statements from anyone else or
evidence of anything that would have led Teresa to believe her death was imminent. See Jenkins,
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2013 IL App (4th) 120628, ¶ 28 (although “the surgical incision in [the victim’s] abdomen
look[ed] gruesome” and “it would seem reasonable to infer that he regarded his survival as far
from assured,” the court held such a belief was not the “same as believing his death was
inevitable and imminent,” and where the court was “unable to say it is clear and indisputable that
[the victim] believed his death was imminent when he spoke with [the police],” those statements
were not admissible under the dying declaration exception to the hearsay rule). Instead, the
record shows that Teresa was coherent at the time she made her statements and she did not die
until nine days after the shooting and, therefore, nine days after the statements were made.
¶ 61 The language in our supreme court’s decision in People v. House, 141 Ill. 2d 323 (1990),
is also instructive. In House, the court affirmed the trial court’s rejection of a statement as a
dying declaration where there was no evidence that the declarant, who sustained severe burns
over 40% of her body, “had been told she was going to die or that she believed she was going to
die.” Id. at 381; see also People v. Harris, 236 Ill. App. 3d 574, 579 (1992) (affirming rejection
of statement as dying declaration where medical personnel did not advise declarant, who had
been shot in the stomach by a 12-gauge, sawed-off shotgun, that she was in danger of dying and
where declarant made no statement to the effect that she thought she was going to die); People v.
Timmons, 127 Ill. App. 3d 679, 685 (1984) (affirming rejection of statement as dying declaration
where there was no evidence that declarant, who had been shot in the carotid artery, jugular vein,
and trachea, “believed himself in extremis when the statements were made” (internal quotation
marks omitted)); People v. Thomas, 49 Ill. App. 3d 961, 971 (1977) (finding error in admission
of statement as dying declaration where “no direct evidence that [declarant, who had been
mortally injured by gunshot wounds to the stomach and hand] considered himself in extremis”).
¶ 62 We recognize that since House was decided, our appellate court has upheld the admission
of a statement as a dying declaration where there was no direct statement from the declarant or to
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the declarant, acknowledged by the declarant, that he or she was dying. However, we find those
cases distinguishable from the case at bar.
¶ 63 In People v. Walker, 262 Ill. App. 3d 796 (1994), the court upheld the admission of
statements as dying declarations and in doing so noted that “although there was no direct
evidence that the [victim] believed his death was impending and certain to follow almost
immediately, there was evidence that the victim complained of being unable to breathe, he knew
he had been shot twice in the back, he was bleeding from his wounds, and was in such pain that
he asked that no one touch him.” Id. at 801. Further, the statements at issue in Walker were made
at the scene of the crime only a few minutes after the declarant had been shot before any medical
treatment had been rendered. Id. Here, Teresa made her statements at the hospital approximately
an hour and a half after the shooting and after receiving medical treatment. Officer Salinas
recounted that upon seeing Teresa at the hospital she appeared to be in a lot of pain but she could
still speak coherently and recognized him by name based on a previous incident from a month
earlier. Walker is distinguishable from this case because there, although the declarant did not
specifically state that he believed his death was imminent, the declarant made the statements at
the scene of the shooting before receiving any medical treatment and further made comments
relating to the severity of his injuries. In this case, there is simply no evidence in the record from
which we could find that Teresa believed her death to be imminent.
¶ 64 While the appellate court in Georgakapoulos stated “[i]t would seem that circumstantial
evidence stemming from the declarant’s physical condition would suffice as a basis from which
to infer declarant’s belief of the imminency of death,” (Georgakapoulos, 303 Ill. App. 3d at
1011), we note that the Georgakapoulos court did not actually decide the issue of whether the
statements in that case were admissible as dying declarations where the court had already found
the statements to be admissible as spontaneous declarations. Id. at 1012 (“However, we need not
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dispositively resolve this lingering issue since, in any event, Jacob’s statements were properly
admitted as spontaneous declarations.” (Emphasis in original.)). Despite the seriousness of
Teresa’s injury, there was no evidence proffered to show that Teresa believed her death to be
imminent. See People v. Lawson, 232 Ill. App. 3d 284, 293 (1992) (in addition to words and
actions of the victim stating he believed he was dying, the court considered grievous nature of
declarant’s wounds as justifying the conclusion that the victim knew of the seriousness of his
condition); People v. Webb, 125 Ill. App. 3d 924, 935-36 (1984) (where there was direct
evidence of declarant’s state of mind, which was that he thought that he was going to die, the
trial court could have properly considered his six gunshot wounds in determining whether the
declarant was aware of his impending death); People v. Rhoads, 110 Ill. App. 3d 1107, 1120
(1982) (where the decedent “(1) suffered second and third degree burns over 60% of her body,
plus first degree burns over 20% of her body; (2) she said she thought she was going to die from
her injuries; and (3) died 19½ hours after the fire, as a result of her burns,” her statements were
properly admitted as dying declarations.).
¶ 65 In this case, there was no evidence in the record of any statements from Teresa indicating
that she believed she was dying, there was no evidence or statements from any medical personnel
or anyone else that might have led Teresa to believe she was dying, and Teresa did not make any
of the statements at issue at the scene of the shooting prior to receiving any medical attention.
Given the absence of any evidence in the record to suggest that Teresa believed her death to be
imminent, we find Teresa’s first and second statements were not admissible as dying
declarations. House, 141 Ill. 2d at 381 (“the central issue in determining whether a statement is a
dying declaration is whether the declarant believed he or she was dying. The rule is that the
declaration must be made under the ‘fixed belief and moral conviction’ of the person making it
that his or her death is ‘impending and certain to follow almost immediately.’ [Citation.]”).
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Accordingly, we hold the trial court abused its discretion when it found Teresa’s statements met
the requirements of a dying declaration where there was no evidence in the record to demonstrate
beyond a reasonable doubt that Teresa believed her death to be imminent at the time she made
the statements. See Beier, 29 Ill. 2d at 515.
¶ 66 Finally, we note that on appeal the State argues that Teresa’s third statement was also
admissible as a dying declaration. Although this argument was not made in the trial court, we
may affirm the trial court on any reason found in the record. Merz, 122 Ill. App. 3d at 976.
However, there is nothing to indicate that Teresa believed that she was about to die when she
gave the third statement to the detective later in the day of the shooting. Therefore, we find the
court erred when it admitted any statements as dying declarations.
¶ 67 Excited Utterance Under Illinois Hearsay Rules
¶ 68 The trial court also found that Teresa’s first two statements were admissible under the
excited utterance exception to the hearsay rule. An excited utterance or spontaneous declaration
is a recognized exception in hearsay jurisprudence. People v. Williams, 193 Ill. 2d 306, 352
(2000). For a hearsay statement to be admissible under the excited utterance or spontaneous
declaration exception there must be (1) an occurrence sufficiently startling to produce a
spontaneous and unreflecting statement, (2) an absence of time for the declarant to fabricate the
statement, and (3) a statement relating to the circumstances of the occurrence. People v. Dobbey,
2011 IL App (1st) 091518, ¶ 44; Ill. R. Evid. 803(2) (eff. Jan. 1, 2011). To this end, courts
consider the totality of the circumstances, including the time elapsed between the event and the
utterance, the nature of the event, the declarant’s mental and physical condition, and the presence
of self-interest. Georgakapoulos, 303 Ill. App. 3d at 1012; Dobbey, 2011 IL App (1st) 091518,
¶ 44. Whether a statement qualifies as an excited utterance is within the trial court’s discretion.
People v. Gwinn, 366 Ill. App. 3d 501, 517 (2006).
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¶ 69 Here, defendant does not contest that the shooting was a sufficiently startling event or
that Teresa’s statements related to the circumstances of the shooting. Defendant argues that the
State was unable to establish that her statements were sufficiently spontaneous and unreflecting
or that there was a lack of time in which Teresa could have fabricated her statements. More
specifically, defendant argues that the evidence shows that (1) at least an hour and a half passed
between the shooting and the first statement and at least two hours between the shooting and the
second statement; (2) Teresa was “coherent” and, therefore, calm while making those statements;
(3) Teresa had had the opportunity to speak with a number of people, including her son, mother,
and brother, before speaking with the officers; (4) Teresa’s statements were not made
spontaneously but rather in response to the officer’s questioning; and (5) even if the court were
to find that the first statement was spontaneous, that statement ruined any spontaneity for the
second statement. The State in turn argues that none of these factors are dispositive on the issue
of whether a statement is spontaneous and, in this case, the evidence shows that Teresa was still
under the excitement of being shot when she made the statements.
¶ 70 The trial court in the instant case determined that Teresa’s statements qualified as excited
utterances, so our review is limited to whether that determination was an abuse of discretion.
People v. Cookson, 215 Ill. 2d 194 (2005). We find the trial court did not abuse its discretion
when it found Teresa’s first and second statements of identification satisfied the excited
utterance exception to the Illinois hearsay rule.
¶ 71 The record shows that Teresa made her first statement to Officer Salinas approximately
an hour and a half after she was shot in the face and while she was being treated in the
emergency room trauma center for that gunshot wound. At the time of her statement, the bullet
was still lodged in her head. Our supreme court has found that “[t]ime is one factor, albeit an
elusive one, whose significance will vary with the facts of each case.” House, 141 Ill. 2d at 382.
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“Indeed, the period of time that may pass without affecting the admissibility of a statement under
the spontaneous declaration exception varies greatly.” Williams, 193 Ill. 2d at 353. See, e.g.,
People v. Gacho, 122 Ill. 2d 221 (1988) (statement made 6½ hours after the occurrence was
admissible); People v. Newell, 135 Ill. App. 3d 417 (1985) (statement made 20 minutes after the
occurrence was properly excluded). While the amount of time necessary for fabrication may vary
greatly, the critical inquiry with regard to time is whether the statement was made while the
declarant was still affected by the excitement of the event. People v. Sutton, 233 Ill. 2d 89, 107-
08 (2009); Williams, 193 Ill. 2d at 353. Further, a declarant may make a spontaneous declaration
to a person even after having spoken previously to another. Lisle, 376 Ill. App. 3d at 77-78;
House, 141 Ill. 2d at 386. And, “[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.” (Internal quotation marks omitted.) Lisle, 376 Ill. App. 3d at 77-78. No one factor
is dispositive. Williams, 193 Ill. 2d at 353. We find that Teresa was still affected by the
excitement of the shooting when she made the first statement to Officer Salinas. Sutton, 233 Ill.
2d at 107-08. As a result, we cannot say that the trial court abused its discretion when it found
that an hour and a half did not ruin the spontaneity of Teresa’s first statement.
¶ 72 Moreover, in House, our supreme court stated:
“Even though the only testimony as to [the declarant’s] condition at the time of
her hospital statement was [the officer’s] testimony that she appeared to be in
pain, and even though [the officer] further testified she was alert and responsive,
we believe it is inconceivable that [the declarant] spent the intervening time
attempting to reconstruct the details of her horrible experience, or fabricating a
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story to tell police. The very nature of her injuries was such that the injuries
undoubtedly commanded her full attention.” House, 141 Ill. 2d at 384.
Thus, just as in House, even though the only evidence of Teresa’s condition in the record before
us was that she appeared to be in a lot of pain yet was coherent and responsive, it seems unlikely
that between the time she was shot and the time she made her first statement to Officer Salinas
she was focusing on fabricating a story rather than focusing on getting the treatment she needed.
See id. Therefore, considering the totality of the circumstances, we cannot say that the trial court
abused its discretion in finding that Teresa’s statement was admissible as an excited utterance.
Caffey, 205 Ill. 2d 52 (this court will find an abuse of discretion only where the trial court’s
ruling is arbitrary, fanciful, unreasonable, or where no reasonable person could take the view
adopted by the trial court).
¶ 73 The second statement was given to Officer Riegler at approximately 2 a.m., only about
15 minutes after her first statement. When Officer Riegler spoke with Teresa, she was still in the
emergency room trauma center, and her mother, brother, and son were present. Officer Riegler
testified that Teresa appeared coherent and able to understand his questions. Officer Riegler
asked her who shot her, and she named defendant. She then twice stated, “I can’t believe Alvin
shot me.” The latter two statements were not made in response to any questioning. Not only was
the second statement of identification made less than two hours after the shooting, but Teresa
was still in the emergency room trauma center receiving treatment, and after identifying
defendant as the shooter, she stated twice “I can’t believe Alvin shot me.” Based on this
evidence, we believe there was sufficient evidence in the record to find that at the time of her
second statement of identification, “the excitement of the event [still] predominated” (Lisle, 376
Ill. App. 3d at 78) such that we cannot say that the trial court’s decision to admit this statement
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into evidence was arbitrary, fanciful, or unreasonable or that no reasonable person would have
taken the same view. See Illgen, 145 Ill. 2d at 364.
¶ 74 Excited Utterance and the Confrontation Clause
¶ 75 We have determined that the first two statements of identification made by Teresa
qualified as excited utterances under Illinois hearsay rules. However, defendant argues the
admission of these statements at trial violated his sixth amendment right to confront the
witnesses against him.
¶ 76 Under the sixth amendment, a criminal defendant has the right to be confronted with the
witnesses against him. U.S. Const., amend. VI. In Crawford v. Washington, the Supreme Court
held the confrontation clause prevents a “testimonial” hearsay statement of a declarant from
being admitted against a criminal defendant, unless the declarant is unavailable to testify and the
defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541
U.S. 36, 68 (2004). In Davis v. Washington, 547 U.S. 813, 822 (2006), and its companion case,
Hammon v. Indiana, 547 U.S. 813 (2006), the Supreme Court provided insight into what it meant
by “testimonial” statements. The Court explained that a statement to law enforcement personnel
will be deemed “nontestimonial” if the circumstances objectively indicate that the primary
purpose of the interrogation is to gather information to meet an ongoing emergency. Davis, 547
U.S. at 822. However, statements to law enforcement will be deemed “testimonial” if
circumstances objectively indicate there is no ongoing emergency and the primary purpose of the
interrogation is to establish or prove past events to identify or convict the perpetrator. Id. In light
of this distinction, the Court later explained:
“[T]he statements at issue in Davis were nontestimonial and the statements in
Hammon were testimonial. We distinguished the statements in Davis from the
testimonial statements in Crawford on several grounds, including that the victim
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in Davis was ‘speaking about events as they were actually happening, rather than
“describ[ing] past events,” ’ that there was an ongoing emergency, that the
‘elicited statements were necessary to be able to resolve the present emergency,’
and that the statements were not formal. [Citation.] In Hammon, on the other
hand, we held that, ‘[i]t is entirely clear from the circumstances that the
interrogation was part of an investigation into possibly criminal past conduct.’
[Citation.] There was ‘no emergency in progress.’ [Citation.] The officer
questioning Amy ‘was not seeking to determine *** “what is happening,” but
rather “what happened.” ’ [Citation.] It was ‘formal enough’ that the police
interrogated Amy in a room separate from her husband where, ‘some time after
the events described were over,’ she ‘deliberately recounted, in response to police
questioning, how potentially criminal past events began and progressed.’
[Citation.] Because her statements ‘were neither a cry for help nor the provision
of information enabling officers immediately to end a threatening situation,’
[citation], we held that they were testimonial.” (Emphases in original.) Michigan
v. Bryant, 562 U.S. 344, 356-57 (2011).
¶ 77 In holding that testimonial out-of-court statements may be admitted as evidence at trial
only if the declarant testifies or the declarant is unavailable and the defendant has had a prior
opportunity to cross-examine the declarant (Crawford, 541 U.S. at 53-54), the Court “overruled
the longstanding reliability framework for the admissibility of out-of-court statements contained
in Ohio v. Roberts, 448 U.S. 56 (1980)” (People v. Thompson, 349 Ill. App. 3d 587, 593 (2004))
and rendered the phrases “indicia of reliability” and “particularized guarantees of
trustworthiness” irrelevant to confrontation clause rights. Crawford, 541 U.S. at 42, 60.
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“Where nontestimonial hearsay is at issue, it is wholly consistent with the
Framers’ design to afford the States flexibility in their development of hearsay
law—as does Roberts, and as would an approach that exempted such statements
from Confrontation Clause scrutiny altogether. Where testimonial evidence is at
issue, however, the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination. We leave for another
day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever
else the term covers, it applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police interrogations.
These are the modern practices with closest kinship to the abuses at which the
Confrontation Clause was directed.” Crawford, 541 U.S. at 68.
Accordingly, whether the hearsay statement is testimonial is often the threshold issue under
confrontation clause analysis. See People v. Stechly, 225 Ill. 2d 246, 279 (2007). Whether a
statement is testimonial is a question of law, so that our review is de novo. In re Rolandis G., 232
Ill. 2d 13, 23 (2008).
¶ 78 In order to resolve defendant’s constitutional claims, we must first consider whether
Teresa’s first two statements of identification were testimonial. In this case, at the time police
were questioning Teresa, Teresa’s son had identified defendant as the man who knocked at the
door just prior to the shooting, defendant had already been arrested by Officer Salinas, and
Teresa had been removed from the scene of the shooting and had been at the hospital for about
an hour and a half. In addition, prior to questioning Teresa, the police had already collected
evidence to build a case against defendant, which included a cursory search of his home. Based
on those facts, we find that the primary purpose in questioning Teresa was not to determine if
there was an ongoing emergency, since they already had defendant in custody for the shooting,
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but rather to establish or prove past events to identify or convict the perpetrator. Davis, 547 U.S.
at 822; see also Sutton, 233 Ill. 2d at 107-08, 118-19 (although victim’s statements in an
ambulance were admissible as excited utterances, those excited utterances were still found to be
testimonial). In Sutton, our supreme court found that statements given to a police officer while a
victim was being transported from the scene of the crime to the hospital were testimonial in
nature. Sutton, 233 Ill. 2d at 118-19. In so ruling, the court noted:
“Although the offender was still at large when [the officer] questioned [the
victim] in the ambulance, our review of the record indicates that [the officer’s]
interrogation was not directed at addressing an ongoing emergency. [The officer]
testified that after speaking with [the victim] on the scene, he gave a dispatch to
the surrounding towns to look for an offender involved in a shooting. [The
officer] gave a description of a black male with dark hair and a mustache, 30 to 35
years old, wearing a dark jacket. At this point, a police unit from Lyons, Illinois,
had arrived on the scene and approached [the second victim’s] vehicle. Two
ambulances arrived, and firefighters checked [the second victim] for a pulse. The
area around [the second victim’s] car was secured, and the license plate on [the
second victim’s] car was called in to the desk operator. At that point, [the victim]
was placed into an ambulance.” Id.
Here, defendant had been identified and taken into custody minutes after the shooting, well
before any police officers spoke with Teresa to verify who had shot her. At the time Teresa gave
her statements to police officers, she was surrounded by family members and hospital personnel.
As such there was no ongoing emergency to address. The facts in this case are stronger than the
facts in Sutton to support a finding that Teresa’s statements to the police officers were
testimonial.
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¶ 79 The Supreme Court also held that testimonial statements found to be dying declarations
or statements that fall under the doctrine of forfeiture by wrongdoing may be admitted as
exceptions to the confrontation guarantee. Giles, 554 U.S. at 358 (declarations made by a speaker
who was on the brink of death and aware that he was dying were admitted at common law even
though they were unconfronted); Davis, 547 U.S. at 833 (“one who obtains the absence of a
witness by wrongdoing forfeits the constitutional right to confrontation”). However, we find no
such exception exists for excited utterances, nor has the State pointed out any. Accordingly,
Teresa’s statements, although excited utterances, were testimonial, and defendant did not have
the opportunity to cross-examine those statements as required under the confrontation clause. We
have already determined that Teresa’s statements did not satisfy the requirements for the dying
declaration exception to the confrontation clause, therefore we will next consider whether her
statements are admissible as an exception to the rule against hearsay under the doctrine of
forfeiture by wrongdoing.
¶ 80 Forfeiture by Wrongdoing
¶ 81 The doctrine of forfeiture by wrongdoing is a common-law doctrine. Hanson, 238 Ill. 2d
at 96. “The common-law forfeiture rule was aimed at removing the otherwise powerful incentive
for defendants to intimidate, bribe, and kill the witnesses against them—in other words, it is
grounded in the ability of courts to protect the integrity of their proceedings.” (Internal quotation
marks omitted.) Giles, 554 U.S. at 374. The common-law doctrine was codified at the federal
level by Federal Rule of Evidence 804(b)(6) as an exception to the hearsay rule. Fed. R. Evid.
804(b)(6); Davis, 547 U.S. at 833; Hanson, 238 Ill. 2d at 97. In Crawford, the Supreme Court
recognized that, in addition to serving as an exception to the hearsay rule, the doctrine also
extinguishes confrontation clause claims on equitable grounds. Crawford, 541 U.S. at 62; Davis,
547 U.S. at 833 (“one who obtains the absence of a witness by wrongdoing forfeits the
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constitutional right to confrontation”). In 2007, the Illinois Supreme Court recognized that the
federal rule is coextensive with the common-law doctrine. Hanson, 238 Ill. 2d at 97 (citing
Stechly, 225 Ill. 2d at 272-73). Stechly makes it clear that as applied in Illinois, the forfeiture-by-
wrongdoing doctrine is coextensive with Federal Rule 804(b)(6). Stechly, 225 Ill. 2d at 272-73.
The Illinois Supreme Court has also recognized that the doctrine serves both as an exception to
the hearsay rule and to extinguish confrontation clause claims. Hanson, 238 Ill. 2d at 97; People
v. Coleman, 2014 IL App (5th) 110274, ¶ 133 (“The common law doctrine of forfeiture by
wrongdoing provides a hearsay exception for statements made by an unavailable witness where
the defendant intentionally made the witness unavailable in order to prevent him or her from
testifying.”).
¶ 82 More recently, the Illinois Supreme Court adopted the Illinois Rules of Evidence, which
became effective on January 1, 2011. The Illinois Rules of Evidence codified the existing rules
of evidence in this state, including the common-law doctrine of forfeiture by wrongdoing.
Illinois Rule of Evidence 804(b)(5) provides an exception to the rule against hearsay for “[a]
statement offered against a party that has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the declarant as a witness.” Ill. R. Evid.
804(b)(5) (eff. Jan.1, 2011). The reliability of the statement sought to be admitted is not an
element of Illinois Rule of Evidence 804(b)(5). People v. Peterson, 2017 IL 120331, ¶ 33. When
the State raises the doctrine of forfeiture by wrongdoing, it must prove both the wrongdoing and
the intent to procure the unavailability of the declarant. Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011).
The State’s burden of proof is by a preponderance of the evidence. Stechly, 225 Ill. 2d at 278.
“[W]hen a trial court makes a finding by a preponderance of the evidence, this court will reverse
that finding only if it is against the manifest weight of the evidence. [Citation.] A finding is
against the manifest weight of the evidence where the opposite conclusion is clearly evident or if
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the finding itself is unreasonable, arbitrary, or not based on the evidence presented. [Citation.]”
(Internal quotation marks omitted.) Peterson, 2017 IL 120331, ¶ 39.
¶ 83 The trial court admitted Teresa’s third statement of identification to Detective El-Amin
under the forfeiture-by-wrongdoing exception to the hearsay rule. The trial court initially found
that Teresa’s third statement was admissible under section 10.7 of the Code of Criminal
Procedure (Code) (725 ILCS 5/115-10.7 (West 2012)). Defendant argued the court should have
applied section 10.6 of the Code, which requires the State to prove defendant intended to kill
Teresa to prevent her from testifying at trial before her statements could be admitted under the
common-law doctrine of forfeiture by wrongdoing. The State in turn argued that the trial court
properly admitted Teresa’s third statement, as well as her first and second statements, based on
the common-law forfeiture-by-wrongdoing doctrine and Illinois Rule of Evidence 804(b)(5) (eff.
Jan. 1, 2011); it did not argue that the statements were properly admitted under the forfeiture-by-
wrongdoing statute, either section 10.6 or 10.7 of the Code. 725 ILCS 5/115-10.6, 10.7 (West
2012). 1 We remanded for a determination, pursuant to Illinois Rule of Evidence 804(b)(5) (eff.
Jan. 1, 2011), which codified the common-law doctrine of forfeiture by wrongdoing (Perkins,
2016 IL App (1st) 133981-U, ¶ 16), of whether the State proved by a preponderance of the
evidence that defendant killed Teresa with the intent of procuring her unavailability as a witness
(id. ¶ 19).
¶ 84 On remand, follow a hearing, the trial court found the State proved by a preponderance of
the evidence that defendant shot Teresa with the intent to prevent her from testifying against him
either for a violation of an order of protection or for criminal damage to property, and therefore
“there was forfeiture by wrongdoing under common law.” The State argues for the first time on
1
The statutes have since been repealed.
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appeal that Teresa’s first and second statements could have also been admitted under the
forfeiture-by-wrongdoing doctrine. The State failed to raise this argument in the trial court.
Nonetheless, “[a]n appellee ‘ “may urge any point in support of the judgment on appeal, even
though not directly ruled on by the trial court, so long as the factual basis for such point was
before the trial court.” [Citation.]’ Beahringer v. Page, 204 Ill. 2d 363 (2003).” People v.
Rajagopal, 381 Ill. App. 3d 326, 329 (2008). Therefore, we address all of Teresa’s statements
under the forfeiture-by-wrongdoing doctrine.
¶ 85 Because defendant withdrew his supplemental brief and moved to dispense with
additional briefing, defendant has forfeited any challenge to the trial court’s finding defendant
killed Teresa to procure her unavailability as a witness. However, defendant argues the
forfeiture-by-wrongdoing doctrine does not allow the introduction of Teresa’s statements in this
case because defendant “was not acting with the intent to prevent her from acting as a witness
against him in this murder trial.” (Emphasis in original.) Defendant argues the murder could not
have been committed with the intent to make Iacovetti unavailable at defendant’s murder trial
because that trial “simply did not exist until after Iacovetti was actually killed.” The State
responds a defendant’s intent to render a witness unavailable in one prosecution should be
transferred to any related prosecutions. Defendant replies this court should “decline the State’s
invitation to so broadly expand the scope of forfeiture by wrongdoing.”
¶ 86 In our supreme court’s decision in Peterson, 2017 IL 120331, ¶ 14, the defendant argued
that the trial court improperly admitted certain hearsay statements at his trial for the murder of
his third ex-wife, Kathleen Savio. The challenged hearsay statements included statements by
Kathleen. The State sought to admit Kathleen’s statements (and the hearsay statements of the
defendant’s missing wife Stacy) under the common-law doctrine of forfeiture by wrongdoing. Id.
¶ 18. The case eventually proceeded to a jury trial in which the trial court admitted several
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hearsay statements by Kathleen and Stacy into evidence. Id. ¶ 24. On appeal to the supreme
court, the defendant did not challenge the trial court’s finding that the State proved by a
preponderance of the evidence that he murdered Kathleen and Stacy. Id. ¶ 38. “Defendant [did]
challenge the trial court’s finding that the State established the ‘intent factor,’ i.e., that the State
proved by a preponderance that he murdered the two women to make them unavailable as
witnesses.” Id. Before Kathleen was killed, she and the defendant were in the middle of a
divorce. “[T]he State’s theory [was] that [the] defendant murdered Kathleen to prevent her from
testifying at [a] hearing in the bifurcated divorce proceeding, at which issues of child custody,
child support, maintenance, and division of property would be decided.” Id. ¶ 45. Our supreme
court found that “the inference that [the] defendant murdered Kathleen to prevent her from
testifying is much stronger in this case, where a party to the litigation is murdered, than in a case
where the person murdered had only a tangential relationship to the litigation or would have
been, at most, a minor witness.” Id. ¶ 46. The court held “[b]ased on our careful review of the
evidence at the pretrial hearing, and mindful that the State’s burden was a preponderance of the
evidence, we cannot say that the trial court’s finding that the State proved that defendant
murdered Kathleen to prevent her from testifying was ‘unreasonable, arbitrary, or not based on
the evidence presented.’ [Citation.]” Id. ¶ 51. “Turning to [the] defendant’s intent as to Stacy, the
State’s theory [was] that [the] defendant murdered Stacy to prevent her from reporting to police
[the] defendant’s involvement in Kathleen’s murder or testifying at a reasonably anticipated
divorce hearing or a murder trial.” Id. ¶ 52. The defendant argued the State failed to meet its
burden of proof as to his intent based, in part, on the fact that no civil or criminal proceeding was
pending at the time of Stacy’s murder. Id. The Peterson court was guided by the United States
Supreme Court’s decision in Giles, in which the Court “expressly contemplated that the
forfeiture doctrine could apply not only where the defendant’s efforts were designed to prevent
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testimony at trial, but also where the defendant’s efforts were designed to prevent testimony to
police, i.e., reporting criminal conduct.” Peterson, 2017 IL 120331, ¶¶ 53-54 (citing Giles, 554
U.S. at 377). The Peterson court found there was “no error in the admission of Kathleen’s and
Stacy’s hearsay statements at trial pursuant to the doctrine of forfeiture by wrongdoing.” Id. ¶ 76.
¶ 87 Defendant’s argument in this case that the “central feature” of the common-law
forfeiture-by-wrongdoing doctrine is that it requires “the defendant to have acted to preclude a
witness from testifying against him in the trial in which the statements are offered” (emphasis
omitted) lacks merit. In Peterson, our supreme court held that when it “codified the common-law
doctrine of forfeiture by wrongdoing in Illinois Rule of Evidence 804(b)(5), we did not condition
the doctrine’s application on the existence of a pending legal proceeding.” Id. ¶ 56. Moreover,
the defendant in Peterson acted to preclude the declarant from testifying in a divorce proceeding,
and the statements were properly admitted in the defendant’s trial for the declarant’s murder. Just
as in this case, the defendant in Peterson murdered the declarant to procure her unavailability as
a witness in other than the proceeding on the declarant’s murder, and our supreme court found
“no error in the admission” of those statements in the defendant’s trial for the declarant’s murder
“pursuant to the doctrine of forfeiture by wrongdoing” (id. ¶ 76). Accordingly, where the State
proved by a preponderance of the evidence defendant killed Teresa to procure her unavailability
as a witness, we find no error in the admission of Teresa’s statements in defendant’s trial for her
murder. Additionally, nowhere in the Peterson decision did our supreme court state that its
application of the common-law forfeiture-by-wrongdoing doctrine was a departure from or an
expansion of its original scope. Rather, the decision in Peterson implies only that the court was
applying the doctrine as originally intended. See Giles, 554 U.S. at 379 (Souter, J., specially
concurring in part, joined by Ginsburg, J.) (“It was, and is, reasonable to place the risk of untruth
in an unconfronted, out-of-court statement on a defendant who meant to preclude the testing that
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confrontation provides. The importance of that intent in assessing the fairness of placing the risk
on the defendant is most obvious when a defendant is prosecuted for the very act that causes the
witness’s absence, homicide being the extreme example.” (Emphasis added.)); see also Colin
Miller, The Purpose-Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent
Doctrine of Forfeiture by Wrongdoing, 112 Colum. L. Rev. Sidebar 228, 230-31 (2012)
(discussing Giles) 2.
¶ 88 Because the forfeiture-by-wrongdoing doctrine is both an exception to the hearsay rule
and extinguishes confrontation clause claims on equitable grounds (Crawford, 541 U.S. at 62;
Davis, 547 U.S. at 833), we hold the trial court properly admitted all three of Teresa’s statements
under the forfeiture-by-wrongdoing doctrine and there was no violation of defendant’s sixth
amendment right to confront witnesses.
¶ 89 CONCLUSION
¶ 90 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 91 Affirmed.
2
“This essay contends, however, that Justice Scalia’s plurality opinion and the concurring opinion
of Justices Souter and Ginsburg in fact endorsed a transferred intent doctrine of forfeiture by wrongdoing.
First, by making the operation of the doctrine dependent upon causation and intent rather than causation
and benefit, the Court allowed for transferred intent principles to apply in the forfeiture context. Second,
by analogizing the doctrine to the coconspirator admission rule, the Court impliedly recognized that
forfeiture is based upon principles that extend beyond a single trial. Third, by determining that the
purpose of the doctrine is protecting the integrity of the trial system, the Court allowed an analogy to be
drawn between forfeiture and the crime-fraud exception to the attorney-client privilege, which also
exceeds the bounds of a single trial.” (Emphases omitted.) Miller, supra, at 230-31.
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