APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. MASSEY, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Defendant brings this appeal after a jury had convicted him of the murder of Mary Ann Combs. He contends that his conviction was based upon an improperly admitted dying declaration and the testimony of an incompetent seven-year-old child. Further, assuming the conviction was proper, he contends the sentence of 75 to 150 years was excessive.
The record discloses that on the morning of May 17, 1973, Ms. Combs was at home with Kennard Combs, her seven-year-old son, two of her other children, her friends Ellis and Jackie Walker, and defendant. *fn1 They were all temporarily sharing the same apartment. Kennard, a State's witness, testified that defendant came into his room that morning and took a roller from the window shade in his room. He then saw defendant beat his mother with the roller and some wires. This beating took place in his mother's bedroom as she lay naked upon the bed, and he saw bruises on her back, face and buttocks. After the beating, he saw his mother in the hallway and also observed Jackie Walker remove the sheets from his mother's bed and place them in a laundry bag.
Joanne Hudson, who lived in an adjoining apartment, testified that when she came home from school that day shortly after noon, she saw Ms. Combs in the hallway wearing only a trench coat and with cuts and bruises all over her body. Ms. Hudson brought Ms. Combs into her apartment and then called the police. Shortly thereafter, Ms. Hudson heard a knock on the door, looked through the peephole and saw defendant. She gave no response and he left.
Officer Mantia of the Chicago Police Department went to Ms. Hudson's apartment in response to her phone call. He testified that when he entered her apartment, he observed Ms. Combs lying on the couch with multiple lacerations and contusions on her body. He asked Ms. Combs the identity of her assailant, and she replied that it was her boyfriend, Henry Broughton (defendant). She also gave his address and stated that he had beaten her with a wire. After summoning a squadrol to take Ms. Combs to the hospital, and within two minutes after she had given him the information concerning defendant, Mantia attempted to help her up from the couch. When he did this, she began to moan and said, "I am in pain, I am dying, I can't" and then passed out. She was eventually taken to Provident Hospital where, upon regaining consciousness, she again told Mantia that Henry Broughton had beaten her. Thereafter, she was wheeled into the emergency room and died within a few hours.
In the afternoon of the day in question, Investigator Buehler went to Ms. Combs' apartment. There, he spoke with Kennard and observed some wires, a brown belt, and a shade roller in Ms. Combs' bedroom. He also noted that the bed did not have any sheets on it (these were later found in a laundry bag). Buehler called the crime lab for the purpose of determining whether the shade roller contained any suitable fingerprints and he inventoried other items, including a broom handle which was found in the kitchen. In the bedroom he also found a number of papers addressed to defendant, one of which was a Western Union telegram used to accompany a money order which was dated May 4, 1973, and addressed to Henry Broughton at the Cook County Jail. Mail records at the jail indicated the money order (and presumably the telegram) were received by Broughton on May 6, 1973.
Officer Brown of the Chicago Police Crime Lab testified he went to deceased's apartment at the request of Investigator Buehler. He dusted a shade roller for fingerprints and found one sufficient for identification purposes. After comparing it to defendant's fingerprints, he stated that it was a print of defendant.
Ronald and Deatrice Broughton, defendant's brother and sister-in-law, testified for the defense. Ronald stated that he and Deatrice picked up defendant at about 8 p.m. on May 16, 1973, at the Cook County Jail and took him to their home, where he spent the night. On May 17 (Ms. Combs was beaten that morning) Ronald left his home with defendant at approximately noon and drove defendant to 53rd and State. *fn2
Deatrice Broughton testified that she and Ronald picked up defendant at about 10:30 p.m. on May 16. She also stated that defendant slept at their house and left in the company of Ronald at about noon on May 17.
Ellis Walker, testifying for the defense, stated that at approximately 10 a.m. on May 17 three men two masked and the third wielding a gun, entered Ms. Combs' apartment where he and his wife were living and asked for defendant. After Ms. Combs informed them that defendant was in jail, she was struck over the head with the gun and was taken into the bedroom where she was beaten by the two masked men with a broom, shade roller and cord. After about half an hour, the three men left and Walker used a sheet to cover Ms. Combs, who was lying naked on her bed. He then dozed off on the living room couch. When he awoke, he saw Ms. Combs leave. She said she was going for help, and shortly thereafter defendant arrived carrying a bag of groceries. Walker told him what had happened, and defendant went next door and knocked on the door. Receiving no response, he returned and talked to Walker. All this transpired in the front room, and Walker did not see defendant go near the decedent's bedroom.
Prior to his testimony, Kennard Combs, the seven-year-old son of Ms. Combs, was found to be competent to testify. After a preliminary hearing out of the jury's presence, the court also found that Ms. Combs' statements to Officer Mantia naming defendant as her assailant came within the dying declarations exception to the hearsay rule. It is because of these rulings that defendant urges he is entitled to a new trial.
• 1 The law with respect to dying declaration has been firmly established in this State. In People v. Tilley, 406 Ill. 398, 403-04, 94 N.E.2d 328, the Illinois Supreme Court enunciated the following rule regarding such statements:
"To make them admissible into evidence as dying declarations, and as an exception to the rule against hearsay evidence, it must appear that they are made by the victim under the fixed belief and moral conviction that 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 inevitable and at hand. [Citations.] * * * It is the state of mind of the deceased and not that of any other person, which determines admissibility. [Citations.] The declarant must be in possession of his mental faculties sufficiently to understand what he is doing and to be able to give a true and correct account of the facts to which the statement relates. [Citation.] * * * Courts will look to all the facts existing and surrounding the party giving the dying declaration at the time, before and after the declarations are made forming the res gestae and tending to show his true state of mind. [Citation.] ...