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People v. Robertson

OPINION FILED NOVEMBER 5, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

TERRY LEE ROBERTSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Knox County; the Hon. U.S. COLLINS, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Defendant Terry Robertson appeals from his conviction for the murder of 22-year-old Vicki Jo Lane for which he was sentenced to a term of not less than 30 or more than 90 years in prison.

Briefly summarized, the testimony at the trial before a jury showed that defendant visited his estranged wife at her parents' home in Victoria, Illinois, during the morning of September 23, 1974, and then took his 8-month-old son back to Galesburg. Defendant wanted to keep his son, and in the afternoon he went to Abingdon with Joni Klassen, the wife of a friend, to see if Mrs. Klassen's sister would baby-sit for him. On the return trip to Galesburg, at about 7 p.m., defendant ran out of gas on Route 41, south of Galesburg. Defendant and Mrs. Klassen started walking along the highway accompanied by four small children (defendant's 8-month-old son, Joni's 23-day-old daughter and her 1-year-old daughter, and Joni's 3-year-old niece). Miss Lane was returning to Galesburg from her grandmother's home and stopped to help. She took the group to the Klassen residence at the Salvation Army building in Galesburg, stopping first at the restaurant where she worked to tell her employer that she would be late because she was helping some hitchhiker who had run out of gas.

Shortly after 8 p.m. Miss Lane was discovered lying beside her car on a country road east of Galesburg. She told three different passersby who stopped that she had been stabbed by a man, a hitchhiker, whom she had tried to help. She made similar statements a short time later to an ambulance attendant. Later that night Miss Lane died at the hospital where she was being treated for six stab wounds, one of which had punctured both the outer and inner walls of her heart.

Investigating sheriff's deputies found defendant's abandoned pickup truck and traced him to the Salvation Army building where he was arrested about 1:20 a.m. Defendant, testifying in his own behalf, denied killing Miss Lane and said he had played pool and pinball for two or three hours that evening.

Physical evidence introduced at trial included defendant's fingerprints lifted from the victim's car and from sunglasses identical to a pair seen by Mrs. Klassen on the dash of the victim's car after defendant's got out, and found in the Salvation Army restroom following defendant's arrest. An empty paint-thinner can resembling a gasoline can, was found in Miss Lane's car and was like some cans stored at the Salvation Army building. The murder weapon was never found, but there was testimony that defendant had a knife a few days before the killing.

Three men currently serving sentences for other crimes testified to various occasions when defendant admitted killing Miss Lane while he was in jail waiting trial. Defendant was 20 years old at the time of trial. Additional facts will be supplied as necessary to discussion of the five issues raised on appeal, which are: (1) the admission into evidence of four spontaneous declarations made by the victim before she died; (2) admission into evidence of defendant's prior inconsistent statement for impeachment; (3) refusal to give an involuntary manslaughter instruction; (4) improper remarks in the prosecutor's final closing argument; (5) imposition of a minimum sentence greater than the statutory minimum. We affirm both the conviction and the sentence.

1. Spontaneous Declarations

Defendant contends that statements made by Miss Lane after she was mortally wounded were inadmissible as hearsay evidence and did not qualify as spontaneous declarations so as to be exempt from the rule against hearsay. Both the State and defendant agree that Miss Lane did not realize that death was imminent and thus that these statements were not within the "dying declaration" exception.

According to the record, Mr. and Mrs. Frame came upon the scene about five minutes after Miss Lane was stabbed. Miss Lane said to them, "That man stabbed me. Please help me. Don't leave me. I can't move." The Frames told her they would go call an ambulance and the police and then come back. They drove a few miles to a farm house where they notified authorities, and then they returned to the scene. After the Frames left, Dawn Patty stopped, and, according to her testimony, Miss Lane screamed for help, saying, "Help, someone stabbed me. I was only trying to help him and he stabbed me." Miss Patty got out of her car and examined the wounds. Miss Lane tried to show which way her assailant had gone, but she would point and say, "He ran this way" and then she would say the other way. Miss Patty explained that she couldn't help by herself, but she would get help and come back. As Miss Patty was backing her car away from the scene, two young men driving a jeep stopped. Miss Lane first said, "Help me. Help me. Please help me. Don't leave me." Then she said, "I have been stabbed in the front and in the back." She also told them, "It was a hitchhiker; a man, a woman, a twenty-three month-old baby, and a child."

Miss Patty came back, and the men placed Miss Lane in the back seat of Miss Patty's car. The Frames also returned, and explained that an ambulance was on the way. It was decided to take Miss Lane to meet the ambulance with the other cars following.

Shortly after 8:30 p.m. they met the ambulance. The medical attendant, Sorenberger, examined Miss Lane in the Patty car and administered first aid for 15 or 20 minutes before moving her to the ambulance. During his examination, Miss Lane was in pain and complained of no feeling in her legs. She told Sorenberger she had picked up a hitchhiker and was trying to help "them." She said she was stabbed with a knife, and, when asked which direction her attacker had gone, her only response was, "He would let me go once we got to Victoria." She also mentioned "children" several times. According to Sorenberger, Miss Lane started to go into shock during the last quarter of his examination.

Defendant contends that sufficient time had elapsed after the stabbing for Miss Lane to have had time to reflect and fabricate a story thus destroying the spontaneity of her utterances. Defendant cites People v. Jackson (1956), 9 Ill.2d 484, 138 N.E.2d 528, and People v. Carter (1st Dist. 1976), 41 Ill. App.3d 425, 353 N.E.2d 260, in support of his position. In Jackson, the victim's statements were excluded because they were made one hour after the crime, and in Carter, exculpatory statements made by the defendant two to eight minutes after a fatal shot was fired were excluded. Neither case is controlling here because of the different factual situation.

• 1 Three factors are necessary to bring Miss Lane's statements within the spontaneous declaration exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill.2d 175, 174 N.E.2d 804.) Both the first and third factors were present in the case before us, and the only disputed question is whether the victim had time ...


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