People v. Miller ( 1978 )

Mr. PRESIDING JUSTICE GREEN,

specially concurring:

I agree with the result reached by the majority and everything stated in the opinion except the court’s reliance upon the doctrine of spontaneous or res gestae declarations to justify the testimony of Ms. Farren as to her son’s responses to her questions.

I agree with the late Justice Harry B. Hershey, author of Poland, Professor Edward W. Cleary and the authors of McCormick, Evidence §288, at 686-87 (2d ed. 1972) that the phrase res gestae is no longer a useful method of analyzing exceptions to the hearsay rule. To my knowledge, the supreme court has not used this analysis since the Poland decision in 1961.

The majority indicate that the mother’s testimony of her son’s responses would be admissible merely upon a showing that they were explanations of an act that had occurred very recently. However, Poland, Damen and the decisions of this court in People v. Parisie (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310, and Jacobs clearly state that for testimony of such declarations to be admissible, the declarations must also be the result of a startling event.

Here, the evidence showed that at the time the child spoke, he appeared to be upset and afraid to leave his mother. I agree with the majority’s alternate disposition of this issue which rules that in view of the child’s age there was also sufficient evidence that the child had been startled by the previous occurrence. Thus, the requirements of spontaneity and a startling event required by the cited cases were met.