People v. Lisle

No. 3--05--0032 Filed: 10-5-07
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 03--CF--821
)
STEVEN D. LISLE, JR., )
) Honorable Charles H. Stengel,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
Defendant, Steven Lisle, Jr., was convicted of first degree
murder and aggravated battery following a jury trial in the
circuit court of Rock Island County. He appeals, claiming
improper hearsay testimony was admitted, necessitating reversal
of his convictions and entitling him to a new trial. Defendant
also claims the State failed to offer evidence sufficient to
convict him of the first degree murder of LaRoy Owens. We
affirm.
BACKGROUND
Defendant's jury trial commenced on September 27, 2004. The
State's first witness was DeMarco Hearn, the first cousin of the
victim, LaRoy Owens. DeMarco lived at 513 6th Avenue in Rock
Island and was at home asleep in his room on the morning Owens
was shot. He was awakened by a loud noise and his mom saying she
heard shooting on the side of the house. Within a couple of
minutes of the sound of the shots, DeMarco went outside and saw
Owens lying on the ground next to a van. DeMarco called 911
after he checked for a pulse on Owens and could not feel one.
Tarisita Nimmers testified that the location of her house at
518 6th Avenue in Rock Island is about a half of block from the
location where Owens was shot. Nimmers heard a single shot
followed by a 10-second pause and then five or six shots in rapid
succession.
Judy Dixon, likewise, testified that she lived close to the
scene of the shooting and was at home when the police arrived
early in the morning on September 15, 2003. She had just
returned home from work and was changing her clothes when she
heard gunshots. She recalled a pause of a few seconds after
hearing the first shot, then a series of five more shots rang
out. Following the sounds of the shots, Dixon heard what sounded
like two separate voices, as if the people talking were moving
down the alley that runs next to Dixon's house.
Chantel Gillette, a police officer with the Rock Island
police department, testified that she was the first to respond to
the scene at 513 6th Avenue. She arrived at the scene at
2
approximately 4:15 a.m. on September 15, 2003. When she arrived,
she observed DeMarco pointing in the direction of a body that was
lying next to the driver's door of a vehicle parked in the
driveway. She went up to the body, saw a gunshot wound to the
victim's head, and determined that the person had no pulse. The
officer then took steps to keep the area from being disturbed
until other officers arrived. After she secured the area,
Gillette followed a trail of blood she saw leading down the
driveway and onto 6th Avenue. The trail led to the home of
Angela Lee in the 700 block of 9th Avenue. Gillette testified
that there were no significant pools of blood at any point along
the trail. When she arrived at the Lee residence, the person who
had been bleeding was already on his way to the hospital.
Mary Devine testified that she was employed as a "technical
investigator" for the Rock Island police department. She
personally took photographs and measurements of certain
bloodstains that were located on and in a Ford Windstar minivan
parked at the crime scene. She visually examined the van for
blood while the van was at the crime scene and then later, in the
more controlled and well-lit location at the Rock Island police
department. During these examinations, Devine recovered samples
of blood she found at various locations on the inside and outside
of the van. She submitted the samples to the Morton crime lab
for testing. A stipulation was entered into evidence noting that
3
a forensic scientist at the Morton crime lab, Debra Minton,
ascertained that the DNA from the blood found by Devine on the
inside panel of the driver's-side door matched the DNA profile of
the decedent Owens. A separate stipulation indicated that Minton
would testify that the DNA from the blood that was found on the
front passenger door of the minivan near the door handle matched
the DNA profile of Ronald Hearn (thereinafter Hearn). Devine
testified that, in her opinion, the bloodspatter evidence she
observed and collected was consistent with Hearn having been shot
somewhere on the passenger side of the minivan.
Devine also described, by reference to a diagram, the
location of six spent shell casings that she recovered at the
scene. Devine indicated that one of the shells was found on the
driver's side of the van and all of the others were recovered
from areas outside the van. Devine was not able to find any
fingerprint evidence on the shell casings. Devine also obtained
one fired bullet from within the fabric of the front passenger
seat of the van and took possession of the bullet that was
removed from the body of Owens. Another stipulation was then
admitted into evidence that indicated firearms expert Chris Kozel
received the six shell casings and two bullets from Devine. He
examined and performed tests on the casings and projectiles and
was able to render an opinion that all of the casings and
projectiles were fired from the same 9-millimeter handgun.
4
Devine further testified that the bloodspatter patterns of
the drops of blood she observed and collected from the ground and
on one of the shell casings near the passenger-side of the van
were consistent with the injuries Hearn sustained. Whereas the
bloodspatter pattern found on the passenger-side door was more
likely to have been caused by the initial trauma of the bullet
impact, the blood she observed in the area of the shell casings
and going across the driveway was of a low impact variety.
Another stipulation was read during the latter part of Devine's
direct examination that indicated Minton had identified the DNA
in the blood recovered from the ground near shell casing number
two and it matched the DNA of Hearn.
Dr. Edward Leon testified that he is an emergency room
physician and was working at Trinity West Hospital when Hearn was
brought in sometime between 4:30 and 5 a.m. on September 15,
2003. When Dr. Leon initially examined Hearn, Hearn was in
stable condition with 10 entry and exit bullet wounds. It
appeared to Dr. Leon that the 10 wounds represented 5 "through
and through" injuries in which the bullets had both entered and
exited Hearn's body. Dr. Leon testified that the location of the
five shots that entered Hearn's body were to the right side of
his cheek, his left shoulder, and in the area of his left thigh
and left buttocks.
The State called defendant's father, Stephen Lisle, Sr.,
5
during its case-in-chief. Lisle, Sr., testified that early on
the morning of September 15, 2003, he received a call on his home
phone from his son, the defendant. Defendant was looking for the
phone number of one of his two sisters. Lisle, Sr., did not give
the number to defendant as it was 4:30 in the morning and he had
to go to work that morning.
Steven Metscaviz, a detective with the Rock Island police
department, testified that he responded to the scene at 513 6th
Avenue in Rock Island at 5 a.m. on September 15, 2003. Detective
Metscaviz found the body of Owens next to the open driver's door
of a blue 1995 Ford Windstar van parked in the driveway.
According to Detective Metscaviz, defendant was taken into
custody at his girlfriend's house in Davenport, Iowa, nine days
later. Defendant gave a statement to Detective Metscaviz and the
lead detective in this case, Dave Sullivan, after he talked to
his pastor and his attorney at the police station in Rock Island.
At around 6 p.m. on September 24, defendant, his counsel, and the
two detectives (Metscaviz and Sullivan) were present while
defendant heard and waived his rights under Miranda. Defendant
told the detectives that he had not been with Hearn or Owens on
the evening of September 14 or during the early morning hours of
September 15. Defendant also said he had not been with a person
named Korey Randle during these times. He said he found out that
Owens and Hearn had been shot during a telephone call he received
6
from an unnamed female. He told the detectives that, at the time
the shooting took place, he was at his mom's house at 629 7th
Street. As defendant was sitting on the front steps at that
time, a person who knows him named Darryl Hicks walked by and saw
him sitting there. Earlier in the afternoon on September 14,
defendant told the investigators that he had been at Maudy
Traywood's house on 6th Street where a party was being held for
Steven Leonard. While at this party, defendant saw Hearn and
Owens. The detectives asked whether defendant had also seen
someone called "C Rider" at this party. Defendant did not know
who "C Rider" was, but when the detectives told him that was a
name Korey Randle is known by, defendant said he knew who Randle
was. Defendant did not recall whether he saw Randle at the party
at Traywood's house.
On cross-examination, Detective Metscaviz acknowledged that
defendant had described Owens as a close friend who spent time at
defendant's house every day. The detective also acknowledged
that the police had failed to locate any weapon that could be
tied to the shooting incident on September 15, 2003.
Darryl Hicks testified that he knew defendant and Owens. On
the night Owens was shot, Hicks was walking home and saw
defendant going into his mother's house on 7th Avenue. No one
was with defendant at the time, and Hicks estimated this occurred
around five minutes prior to the shooting. Hicks testified that
7
he did not hear any shots from his house and he could not testify
with certainty where the defendant was when the shots were fired.
Rock Island police detective David Sullivan testified that
he participated in a second interview of defendant that was
conducted on June 4, 2004, after defendant and his attorney had
already provided the Rock Island police with a verbatim
transcript of an audiotape statement defendant previously made to
his attorney on May 24, 2004. According to Detective Sullivan,
the interview on June 4 was conducted in an effort to clarify
some details that were discussed in defendant's May 24 statement.
However, the interview on June 4 was not transcribed, audiotaped,
or videotaped. During the June 4 interview, defendant indicated
that he was, in fact, present with three other people in the
driveway of 513 6th Avenue at the time Owens was killed. In
addition to Owens, the people who were in or near the minivan
were the defendant, Ronald Hearn, and Randle. Detective Sullivan
proceeded to detail the contents of defendant's May and June
statements, beginning with what defendant stated in his recorded
statement of May 24, 2004.
I. Information Defendant Provided in May Statement
As Testified To By Detective Sullivan
Defendant disclosed that he was picked up by Randle and
Randle's little brother, Paris, at around 2 or 3 p.m. on
September 14, 2003. Randle dropped defendant off at defendant's
8
mom's house on 7th Street and he stayed there for awhile before
walking down to Hearn's house at 513 6th Avenue. From there,
defendant walked a half a block to Traywood's house, where a
party was being held. A short time after he arrived, defendant
saw Owens and Hearn come to Traywood's house. Paris Randle asked
to buy drugs from Owens, but Owens was not able to sell him any
on the spot. Owens kept a supply of drugs at the house of a
girlfriend who had recently evicted Owens from her premises.
Defendant refused Owens' request to go to the girlfriend's house
and retrieve Owens' stash of cocaine, after which Owens and Hearn
left the party and managed to get inside the girlfriend's house
to retrieve the drugs. Defendant indicated that Owens went to
Hearn's house and stashed his drugs somewhere on that property.
Defendant went from the party on 6th Street to Buck's Tavern,
where the police eventually came and chased away a group that was
standing outside the tavern. Defendant again met up with Korey
Randle as he walked away from Buck's Tavern, and together they
drove in the Windstar to defendant's mother's house. While the
two were hanging around there, at midnight or 1 a.m. on September
15, Owens and Hearn drove up in a gray Monte Carlo. Defendant
and Randle then drove the minivan to a Quick Shop store, where
they intended to buy more alcohol. Hearn and Owens also went to
Quick Shop and the four men purchased cigars and alcohol. Both
vehicles were driven from Quick Shop to Angela Lee's residence on
9
9th Avenue. Ultimately, the four men later left in the minivan
and drove to 513 6th Avenue, where Hearn lived. According to
defendant, Owens and Hearn left the Monte Carlo at Lee's
residence and got in the van with the defendant and Korey Randle.
Describing what took place immediately prior to the
shooting, defendant said Owens received a call from someone who
was ready to buy some drugs. Owens exited the van to find the
stashed cocaine and returned when he could not find the drugs in
the spot he had hidden it. When Owens exited the van to try to
find the cocaine, defendant went to the side of Hearn's house to
urinate. Defendant said that he was still urinating when Owens
returned to the van, cussing at Hearn about the missing drugs.
Owens reached under the mat of the minivan and pulled out a gun,
which he then used to shoot at Hearn. Defendant stated Hearn was
still inside the van when Owens began shooting. Defendant had
just returned to the van and jumped in the middle seat when Owens
pointed the gun toward Hearn and fired a few shots. As soon as
Owens began shooting, Korey Randle, who was seated in the fully
reclined front passenger seat, exited the van and ran away.
Hearn got out of the van and began to wrestle with Owens, at
which time Owens shot Hearn two more times. According to the
defendant, Hearn managed to gain control of the gun from Owens
and, as Owens tried to get in the driver's seat of the van, Hearn
shot him. Defendant said Hearn began shooting at the defendant
10
after Hearn shot Owens. This caused defendant to flee. He
caught up with Korey Randle and the two left the area together.
II. Information Defendant Provided In June Statement
As Testified To By Detective Sullivan
Defendant provided further details about the shooting during
his interview with the police on June 4, 2004. He indicated that
while he was with the others in the van as it was parked in
Hearn's driveway, Owens and Randle were sitting in the front
seats, defendant was in the middle seat and Hearn sat in the far
rear seat. In the June interview, defendant mentioned the name
of the person who had called Owens' cell phone about buying
drugs. Defendant described Owens as angry with Hearn after he
looked for but could not find the cocaine allegedly hidden on the
property at Hearn's residence. Defendant said that even after he
left the van to urinate, he was in a position where he could see
and hear what was happening inside the van. Owens was accusing
Hearn of stealing the drugs because Hearn was the only person,
other than Owens, who knew where the drugs had been hidden.
Detective Sullivan continued his testimony by noting that
defendant was asked specifically if anyone other than the four
people in the minivan were in the area at the time of the
shooting, to which defendant indicated the only other person
nearby was a person he called "Molina." Molina was at the park
waiting for Owens to deliver drugs to him. Defendant said that
11
he thought two or possibly three shots were fired while Owens and
Hearn were inside the van and another two shots were fired
outside the van. Once Owens and Hearn were outside the van
wrestling, Hearn obtained control over the gun and pursued Owens
around the van from the passenger side to the driver's door.
Hearn came up from behind Owens just before shooting Owens in the
head at close range. Defendant told the police that Hearn
dropped the gun he used to shoot Owens, pulled a different gun,
and started to shoot at defendant and Korey Randle. When
Detective Sullivan asked defendant how Randle could have been
shot at by Hearn when he had fled as soon as the first shot was
fired, defendant stated that he was the only one Hearn was
shooting at after Owens had been shot. Sullivan asked defendant
if he knew who Ricky Childs was and whether Childs was present at
the time of the shooting. Defendant said he knew Childs, but
that Childs was not present.
On cross-examination, Detective Sullivan conceded that
defendant had, at no time during any of his statements, admitted
to shooting anyone. The detective testified that, despite the
efforts by his department, the police were unable to find Korey
Randle. Detective Sullivan also admitted that the police have
never discovered a weapon that could be tied to this case.
III. Further Evidence Admitted At Trial
Dr. Larry Blum testified that he is a licensed physician
12
whose specialization is in forensic pathology. He was declared
an expert in his field and testified that he performed the
autopsy on Owens. Dr. Blum stated that Owens died as a result of
a single gunshot that entered his brain after passing through his
right ear. In the doctor's opinion, the shot was fired from
within inches of Owens' ear and death would have resulted
rapidly, if not immediately, after the bullet struck.
Christopher Kozel, a forensic scientist employed by the
Illinois State Police, testified as an expert in firearm and tool
marker identification. Kozel received a number of clothing items
that were worn by Hearn at the time he was shot. He identified
certain holes in the jacket Hearn wore as having been caused by
bullets that struck the jacket in the back right shoulder, and
two places where the initial entry point was through the interior
fabric of the jacket. Each of these three entry points
manifested gunpowder residue, indicating a close-range firing of
the gun.
Kozel gave his opinion regarding the type of gun that he
determined was consistent with the rifling characteristics of the
two bullets that were recovered in this case. According to
Kozel, the pattern and directions of the grooves on the bullets
matched those that are made by a semiautomatic pistol
manufactured by "High Point." Kozel testified that, in his
experience, the shells that are ejected from the "High Point"
13
brand 9-millimeter pistol always eject to the right side. Kozel
confirmed that he had also made a determination that the six
shells found at the crime scene matched each other and were all
fired from the same gun.
On cross-examination, Kozel testified that he did not
perform tests on the sleeves or cuff areas of Hearn's jacket for
gun powder residue, but that a colleague of his had. While Kozel
matched all of the shell casings and bullets submitted to him to
a single 9-millimeter pistol, he could not testify that all of
the bullet wounds Hearn suffered were caused by a 9-millimeter
gun.
Robert Berk, also a forensic scientist employed by the
Illinois State Police, testified that his expertise is in the
area of analyzing trace evidence. His testing on the cuff
portion of the left sleeve of Ronald Hearn's jacket led Berk to
conclude that gunshot residue was present on that part of the
jacket. This meant that Hearn's cuff was "in the environment of
a weapon" when the weapon was fired, and could have been the
result of Hearn discharging a weapon or having his left hand
close to a gun when someone else fired it. Berk was able to
conclude that no gunshot residue was present on either of the
sleeves of the jacket worn by Owens.
When the jury trial resumed on September 29, 2004, Detective
Metscaviz was recalled to the stand. His testimony was limited
14
to an interaction that he observed between defendant and Korey
Randle. This interaction took place while Randle was being
interviewed by Detective Metscaviz in a room at the county jail.
During the interview with Randle, the defendant, who had been
arrested about a month earlier, was walking by the interview room
and made a statement that Detective Metscaviz was able to hear.
Looking at Randle, defendant said, "Yo, man. Those guys are
trying to frame me." Metscaviz interpreted that defendant was
directing that comment at the officer or to his department in
general. Then, looking in the direction of the detective,
defendant said, "What are you doing talking to those guys?"
Before moving out of the view of Randle and Detective Metscaviz,
defendant raised his hands and moved a forefinger across his
throat. Defendant's movement was observable to Randle.
Angela Lee was called to testify and noted that she had been
asleep at her home on 9th Avenue in Rock Island early in the
morning on September 15, 2003, when her nephew, Ronald Hearn,
woke her up by yelling her name from just outside the back door
to her house. She turned over on the couch to look toward the
back door and saw Hearn leaning against the doorway. Hearn
stated he had been shot. After she helped her nephew get outside
to wait for the emergency personnel to arrive, she began asking
Hearn who shot him. At first Hearn told Lee, "Roy shot," but
when Lee asked him if he meant Roy was the shooter, Hearn said
15
no, and repeated the words, "Roy shot." When Lee asked Hearn to
tell her "who did this to [him]," Hearn pulled her close to him
and said the words, "Steve, and Korey was with him." Lee
testified that her nephew made the statements before any officers
arrived at her house.
Defendant called Steve Lisle, Sr., as his first witness.
Lisle, Sr., testified that defendant and Owens had been good
friends for at least six years, that they were together all the
time, and that they spent many nights at the same house. Lisle,
Sr., could not think of any reason his son would have had to
shoot Owens. Lisle, Sr., also denied that he had told anyone
that defendant had asked for the phone number of the sister that
lives in Indianapolis, Indiana, when defendant called Lisle, Sr.,
at 4:30 a.m. on the morning Owens was shot.
Defendant's mother, Jessie Lisle, testified that she was at
her home on a corner lot at 7th Street and 7th Avenue, throughout
the night on September 14. Defendant came to and left the house
a number of times throughout the night. Jessie testified that
she was still awake at around 3:40 a.m. and sitting on her front
porch when she heard what sounded like firecrackers. Before she
could place a call to try to reach her son, she saw defendant
calmly walking by himself toward the house. She told defendant
not to be returning with Owens to the house later that night,
since it would wake her up. Defendant assured her that he would
16
not be coming back to the house that night and she had no further
contact with him the rest of the night.
After defendant rested with no further witnesses being
called, the State called Detective Metscaviz as a rebuttal
witness. The detective testified that, while he was questioning
Steve Lisle, Sr., and Jessie Lisle at Jessie's house on 7th
Street on the day the shooting, Lisle, Sr., stated that at
approximately 4:30 that morning defendant had placed two calls to
him. Lisle, Sr., indicated that defendant was asking for the
phone number of Lisle, Sr.'s daughter, Steva, who lived in
Indianapolis. The detective testified that Lisle, Sr., also said
defendant had told him that he needed Steva's phone number
because he was going to have to leave town. After this
testimony, both sides rested and the trial court denied
defendant's renewed motion for a directed verdict.
After deliberating for parts of two days, the jury found
defendant guilty of first degree murder and the charge of
aggravated battery. Following a sentencing hearing on December
10, 2004, the trial court sentenced defendant to terms of 27 and
10 years' imprisonment, specifically finding that the sentences
were required to run consecutively to one another. This appeal
followed.
ANALYSIS
Defendant raises three issues on appeal. First, defendant
17
contends that the trial court erred in allowing Angela Lee to
testify that Ronald Hearn told her that defendant was the one who
shot him. Defendant claims that it was reversible error to find
Hearn's statement admissible under the excited utterance
exception to the hearsay rule. Second, defendant further argues
that allowing Lee to testify as to what Hearn said violated his
federal and state constitutional rights to confront witnesses
against him, as well as the principles set forth in Crawford v.
Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354
(2004). Finally, defendant argues that evidence adduced at trial
was insufficient to find him guilty beyond a reasonable doubt for
the murder of LaRoy Owens.
I. Excited Utterance
Angela Lee testified that Ronald Hearn identified defendant
as the person who shot him. Defendant claims Lee's testimony
should not have been admitted under the excited utterance
exception to the hearsay rule and, therefore, Lee's testimony
should have been excluded as inadmissible hearsay.
For a hearsay statement to be admissible under the
spontaneous declaration or excited utterance exception: (1) there
must be an occurrence sufficiently startling to produce a
spontaneous and unreflecting statement; (2) there must be an
absence of time for the declarant to fabricate the statement; and
(3) the statement must relate to the circumstances of the
18
occurrence. People v. Edwards, 144 Ill. 2d 108, 579 N.E.2d 336
(1991). In determining whether a hearsay statement is admissible
under the spontaneous declaration exception, courts employ a
totality of the circumstances analysis. People v. Williams, 193
Ill. 2d 306, 739 N.E.2d 455 (2000). This analysis involves the
consideration of several factors, including time, the nature of
the event, the mental and physical condition of the declarant,
and the presence or absence of self-interest. People v. House,
141 Ill. 2d 323, 566 N.E.2d 259 (1990).
The fact that a declarant's statement is made at the first
opportunity to speak supports a finding of spontaneity (People v.
Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146 (1988)), but a declarant
may make a spontaneous declaration to a person even after having
spoken previously to another. House, 141 Ill. 2d at 386.
"Although 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." Williams, 193 Ill. 2d at 353, citing People v.
Smith, 152 Ill. 2d 229, 604 N.E.2d 858 (1992). No one factor is
dispositive. Williams, 193 Ill. 2d at 353.
The time factor has been described as an elusive factor
whose significance will vary with the facts of each case. House,
141 Ill. 2d at 382. "[T]he period of time that may pass without
19
effecting the admissibility of a statement under the spontaneous
declaration exception varies greatly." Williams, 193 Ill. 2d at
353. In People v. Gacho, a statement made 6½ hours after the
occurrence was held admissible (Gacho, 122 Ill. 2d at 240-42),
while in People v. Newell, a statement made 20 minutes after the
occurrence was properly excluded. People v. Newell, 135 Ill.
App. 3d 417, 481 N.E.2d 1238 (1985).
"The critical inquiry is 'whether the statement
was made while the excitement of the event
predominated.'" Williams, 193 Ill. 2d at 353.
We review evidentiary rulings of a trial court deferentially
and will reverse only if the trial court abused its discretion.
People v. Sullivan, 366 Ill. App. 3d 770, 853 N.E.2d 754 (2006).
A trial court abuses its discretion when its ruling is so
arbitrary, fanciful, or unreasonable that no reasonable person
would take the view it adopted. People v. Illgen, 145 Ill. 2d
353, 583 N.E.2d 515 (1991).
Defendant admits, "There is no question" that the shooting
was a sufficiently shocking event to cause Hearn to make an
"excited and unreflecting statement." Defendant further concedes
that Hearn's statement, as testified to by Lee, bore a direct
relation to the circumstance of the shooting. Defendant argues,
however, that the statement was admitted in error. Defendant
claims that the trial court failed to properly weigh the
20
intervening time between the shooting and the statements.
Defendant continues that since the statement was the product of
Lee's "questioning," it was not truly an excited utterance and
should have been deemed inadmissible hearsay. We disagree.
At most, 18 minutes passed between the shooting and Hearn's
statement to Lee. Hearn was shot five times, each bullet
entering his body and exiting it. While his statements followed
his aunt's inquires into who shot him, we find that fact
insufficient to defeat the spontaneous nature of the statement.
Undoubtedly, the statement was made while the excitement of the
event predominated. The statement bore a direct relation to an
unbelievably shocking occurrence. Therefore, we cannot say that
the trial court abused its discretion in holding Lee's testimony
was permissible under the excited utterance exception to the
hearsay rule.
II. Right to Confront Witnesses, Testimonial Evidence
and Crawford v. Washington
Defendant's second argument on appeal is that the trial
court violated his right to confront witnesses against him by
allowing Lee to testify about Hearn's statement. Defendant notes
that both the state (Ill. Const. 1970, art. I, §8) and federal
(U.S. Const., amend. VI) constitutions provide a criminal
defendant the right to confront the witnesses against him.
Citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177,
21
124 S. Ct. 1354 (2004), as authority, defendant claims it was
improper to allow Lee's testimony claiming Hearn's statement was
testimonial and not subject to cross-examination.
The State responds by arguing that Hearn's statement was not
testimonial and, as such, Crawford v. Washington is inapplicable.
In the alternative, the State contends that even if we find the
statement to be testimonial in nature, Crawford does not preclude
its admission since the statement falls within recognized common
law exceptions to the hearsay rule. Finally, the State concludes
its response on this issue by claiming admission of the statement
was, at most, harmless error.
Since the Supreme Court issued its decision in Crawford,
courts have struggled with determining exactly which statements
are testimonial in nature and which are nontestimonial. In re
T.T., 351 Ill. App. 3d 976, 815 N.E.2d 789 (2004); People v.
R.F., 355 Ill. App. 3d 992, 825 N.E.2d 287 (2005); People v.
West, 355 Ill. App. 3d 28, 823 N.E.2d 82 (2005); People v.
Purcell, 364 Ill. App. 3d 283, 846 N.E.2d 203 (2006). A review
of recent case law in our appellate districts indicates that
there exist two developing theories regarding how to determine if
a statement is testimonial in nature.
In People v. R.F., one panel of the First District held that
"Crawford does not apply to statements made to nongovernmental
personnel, such as family members or physicians. When an out-of-
22
court statement is made to nongovernmental personnel and, thus,
is nontestimonial, the 'indicia of reliability' framework of Ohio
v. Roberts, and the hearsay exception *** continue to apply."
People v. R.F., 355 Ill. App. 3d at 1000. This line of reasoning
was endorsed by the dissent in In re E.H., 355 Ill. App. 3d 564,
823 N.E.2d 1029 (2005), rev'd on other grounds by In re E.H., No.
100202 (December 21, 2006). In his dissent, Justice Quinn noted
that, "The great weight of authority supports the proposition
that where the proffered statements were not made to a
governmental actor such as law enforcement (or their proxy),
under Crawford the statements cannot be testimonial regardless of
their content." In re E.H., 355 Ill. App. 3d at 580 (Quinn, J.,
dissenting).
A competing school of thought developing in our courts is
that statements made to nongovernmental personnel can be
testimonial in nature. The court in In re T.T. acknowledged
that, "Crawford indicates that governmental involvement in some
fashion in the creation of a formal statement is necessary to
render the statement testimonial in nature." In re T.T., 351
Ill. App. 3d at 988. Nevertheless, the court went on to find
that the victim's "accusatory statements identifying respondent
as the perpetrator" made to a private physician were testimonial
in nature. In re T.T., 351 Ill. App. 3d at 993. Focusing on the
content of the statement rather than to whom it was made, the
23
Purcell court followed the lead set by In re T.T. stating that
"when the content of the victim's statement concerns fault or
identity, such a testimonial statement is admissible only if the
declarant testifies at trial and is subject to cross-
examination." Purcell, 364 Ill. App. 3d at 297. The Purcell
court then sanctioned the view adopted by the In re T.T. court
and held that when determining whether a statement is testimonial
or nontestimonial in nature, a court should focus "on the nature
of the testimony rather than the official or unofficial status of
the person whom the State called to testify to the declarant's
out-of-court statement." Purcell, 364 Ill. App. 3d at 297.
In People v. Stechley, 225 Ill. 2d 246 (2007), our supreme
court noted that the United States Supreme Court has "left for
another day any discussion of rules for evaluating 'whether and
when statements made to someone other than law enforcement
personnel' [citation] or statements 'made in the absence of any
interrogation' [citation] might be 'testimonial.'" Stechley, 225
Ill. 2d at 289-90. Then, our supreme court held that statements
made to someone other than law enforcement personnel or
government officers can be testimonial in nature. Stechley, 225
Ill. 2d at 291-92.
In answering the question of "how to determine whether
statements are testimonial when they are made outside" of police
interrogation, the Stechley court stated, "[T]he only proper
24
focus is on the declarant's intent: Would the objective
circumstances have led a reasonable person to conclude that their
statements could be used against the defendant?" Stechley, 225
Ill. 2d at 289. The Stechley court continued that, "[I]t is the
declarant's perspective which is paramount in a testimonial
analysis. *** Accordingly, in our view, the proper question is
not whether the declarant actually did intend or foresee that his
statement would be used in prosecution. Rather, the question is
whether the objective circumstances indicate that a reasonable
person in the declarant's position would have anticipated that
his statement likely would be used in prosecution." Stechley,
225 Ill. 2d at 292.
Using the test announced by our supreme court in Stechley,
and Davis v. Washington, 547 U.S. ____, 165 L. Ed. 2d 224, 126 S.
Ct. 2266 (2006), as our guide, we hold Hearn's statement to Lee
was not testimonial in nature. In Davis, the Supreme Court held
that statements made to a law enforcement official during the
course of a 911 call were not testimonial in nature. Davis, 547
U.S. at ____, 165 L. Ed 2d at 240-41, 126 S. Ct. at 2277. This
was so, reasoned the Davis Court, since the declarant made the
statements during an ongoing emergency. Davis, 547 U.S. at ____,
165 L. Ed. 2d at 237-38, 126 S. Ct. at 2274. The Davis Court
noted that while "one might call 911 to provide a narrative
report of a crime absent any imminent danger [the declarant's]
25
call was plainly a call for help against a bona fide physical
threat." (Emphasis in original.) Davis, 547 U.S. at ___, 165 L.
Ed. 2d at 240, 126 S. Ct. at 2276. The Davis Court further noted
that identifying one's assailant does not, in and of itself,
render that statement testimonial in nature. Davis, 547 U.S. at
___, 165 L. Ed. 2d at 240-41, 126 S. Ct. at 2276-77. The Davis
Court stated:
"Third, the nature of what was asked and answered
in Davis, again viewed objectively, was such that
the elicited statements were necessary to be able
to resolve the present emergency, rather than
simply to learn (as in Crawford) what had happened
in the past. That is true even of the operator's
effort to establish the identity of the assailant,
so that the dispatched officers might know whether
they would be encountering a violent felon."
(Emphasis in original.) Davis, 547 U.S. at ___,
165 L. Ed. 2d at 240, 126 S. Ct. at 2276.
Just as the declarant in Davis, Hearn was in need of
protection from his assailant when he made the statement to Lee.
He was also in dire need of medical attention. Had Hearn made
the exact same statement to a 911 operator, Davis would mandate
that we find the statement nontestimonial in nature. Using the
Stechley "objective circumstances" test, we find that a
26
reasonable person shot five times who has just made his way to
his aunt's house and who has not received protection from his
assailant or medical attention would not have anticipated that
the statement to his aunt would be used in prosecution. He
would, undoubtedly, have anticipated that identifying his
assailant to his aunt would allow his aunt to take precautionary
measures should the assailant also arrive at her residence.
Therefore, Hearn's statement to Lee was nontestimonial in nature.
Courts agree that when an out-of-court statement is found to
be nontestimonial, the "indicia of reliability" framework set
forth in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S.
Ct. 2531 (1980), and traditional hearsay exceptions apply.
Purcell, 364 Ill. App. 3d at 294; R.F., 355 Ill. App. 3d at 1000.
Crawford clearly states that where "nontestimonial hearsay is at
issue, it is wholly consistent within 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."
Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at
1374.
As noted in section 1 above, Hearn's statement to Lee falls
squarely within this state's excited utterance exception to the
hearsay rule. Defendant argues, however, that even if we find
the statement to be nontestimonial and no Crawford violation, it
27
was still reversible error to admit it. Defendant claims that
his right to confrontation was still violated as Hearn was not
"unavailable," yet his statement was allowed to be introduced
into evidence without Hearn being called to testify. Defendant
notes that Hearn was incarcerated at the time of the trial.
Therefore, defendant claims that the State impermissibly
circumvented his right to confrontation by introducing his
statement to Lee while holding him in confinement. For authority
supporting the conclusion that this amounted to reversible error,
defendant cites Justice Thomas's dissenting opinion in Davis v.
Washington, 541 U.S. at ____, 165 L. Ed. 2d at 244, 126 S. Ct. at
2280 (Thomas, J., dissenting), and Barber v. Page, 390 U.S. 719,
20 L. Ed. 2d 255, 88 S. Ct. 1318 (1968).
Defendant's arguments concerning the "availability" of Hearn
are unavailing. It is true that the Barber Court held the State
violated the defendant's right to confrontation when it was
allowed to admit hearsay statements of someone incarcerated in a
federal penitentiary without attempting to secure the declarant's
presence at trial. Barber, 390 U.S. at 725, 20 L. Ed. 2d at 260,
88 S. Ct. at 1322. The statements made by the declarant in
Barber, however, were made during a preliminary hearing in which
the defendant was afforded no meaningful opportunity of cross-
examination. Barber, 390 U.S. at 725, 20 L. Ed. 2d at 260, 88 S.
Ct. at 1322. Undoubtedly, the statements at issue in Barber were
28
testimonial in nature and, therefore, pursuant to Crawford, could
only be admitted today if the defendant were allowed a meaningful
opportunity to cross-examine the declarant. But, to read Barber
to hold, as defendant urges, that no hearsay statements are ever
admissible if the declarant is incarcerated, or otherwise
"available," is an untenable expansion of Barber which ignores
other, more recent United States Supreme Court jurisprudence.
In White v. Illinois, 502 U.S. 346, 116 L. Ed. 2d 848, 112
S. Ct. 736 (1992), the Court held that our supreme court
correctly decided that the confrontation clause does not demand
that "the prosecution must either produce the declarant at trial
or the trial court must find that the declarant is unavailable"
before admitting hearsay statements under the spontaneous
declaration exception to the hearsay rule. White, 502 U.S. at
349, 116 L. Ed. at 854-55, 112 S. Ct. at 739. This is so,
reasoned the White Court, because "where proffered hearsay has
sufficient guarantees of reliability to come within a firmly
rooted exception to the hearsay rule, the Confrontation Clause is
satisfied." White, 502 U.S. at 356, 116 L. Ed. 2d at 859, 112 S.
Ct at 743. The Court specifically rejected an "unavailability
rule" pertaining to spontaneous declarations and noted, "We ***
see no basis *** for excluding from trial, under the aegis of the
Confrontation Clause, evidence embraced within such expectations
to the hearsay rule as those for spontaneous declarations."
29
White, 502 U.S. at 357, 116 L. Ed. 2d at 860, 112 S. Ct. at 743.
Given the holding of White, we reject defendant's argument that
his rights under the confrontation clause were violated when the
State was allowed to introduce Hearn's excited utterance through
Lee's testimony while Hearn was "available" to testify.
III. Sufficiency of the Evidence
Defendant's final issue raised on appeal is that the
evidence adduced at trial was insufficient to convict him of the
first degree murder of Owens. He argues that, at best, the
evidence indicates that he was the "most likely suspect, in the
shooting of Owens," but it is totally circumstantial and fails to
sufficiently prove he actually shot Owens. Defendant does not
challenge his aggravated battery conviction on these grounds.
When reviewing a claim of insufficient evidence, the
reviewing court must determine whether, after viewing the
evidence in the light most favorable to the State, any rational
trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. People v. Smith, 185 Ill. 2d
532, 541, 708 N.E.2d 365, 369 (1999). It is not the function of
a court of review to retry the defendant. People v. Collins, 106
Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985).
Evidence was admitted at trial indicating that defendant
initially informed police that he had no involvement in the
shooting and was not at the scene during the time of the
30
shooting. Defendant later recanted that story and informed
police that he was, in fact, at the scene when the shooting took
place. In describing what took place during the incident,
defendant told police that Owens shot Hearn three times while
Hearn was in the backseat of the van and Owens was in the
driver's seat. Once the first shot was fired, according to
defendant, Randle took off running. Defendant was clear that
only the four men were at the scene when the first shot was fired
and only Hearn, Owens and defendant remained after the first shot
was fired.
According to defendant, after Hearn was shot three times in
the van, he exited the vehicle and chased Owens. During the
chase, he was shot two more times. Hearn, then, after being shot
five times, caught up to Owens, wrestled the gun away from him,
and killed him almost instantaneously with a single shot.
Medical and forensic experts testified that the shooting
simply could not have happened as defendant described. Hearn was
not shot in the van, did not chase Owens, and did not struggle
with Owens for the gun. Testimony indicated that Owens was found
dead holding a cigarette and lighter in one hand. For the jury
to believe defendant's version of the events, it would not only
have to ignore all the physical evidence (as testified to by the
various forensic experts) from the incident but also somehow
conclude that Owens continued to hold a cigarette and lighter in
31
one hand as he struggled over a gun with a man he had just shot
five times. Moreover, the jury would have had to believe that
Hearn, having just been shot five times, had the strength to
chase down Owens, take the gun from him, and shoot him.
Defendant argues that proving he lied about the way events
transpired does not equate to proving all the elements of an
offense beyond a reasonable doubt. We agree. Defendant admits
the corpus delicti of the murder of Owens was proven by the
State, but contends that the State failed to offer sufficient
evidence to prove he was responsible for or committed the murder
of Owens. We disagree.
The State introduced defendant's own statement in which he
admitted that only Randle, Owens, Hearn, and he were at the scene
when the first shot was fired. A video surveillance tape
confirmed that the four men were together approximately one hour
prior to the shooting. Defendant stated Randle did not fire the
first shot and took off running after it was fired. This left
Hearn, Owens, and defendant as the only people at the scene of
the crime when the remaining five shots were fired. Witnesses
Nimmers and Dixon testified that they heard one shot fired,
followed a short time later by five rapidly fired gunshots.
No gunshot residue was found on the sleeves of Owens' jacket
indicating that he did not fire even a single shot, let alone
five shots into Hearn. The physical evidence and witness
32
testimony certainly supports the State's theory that the first
shot heard by Nimmers and Dixon was the single fatal shot fired
into Owens and the five subsequent clustered shots were those
which struck Hearn. Adding Hearn's statement that defendant was
the shooter, we find sufficient evidence upon which a reasonable
trier of fact could have relied to conclude that all the elements
of the offense of murder were proven beyond a reasonable doubt.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Rock Island County is affirmed.
Affirmed.
O'BRIEN and WRIGHT, JJ., concur.
33