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People v. Cherry

OPINION FILED SEPTEMBER 10, 1980.

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

v.

FRED CHERRY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOHN J. HOBAN, Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

The defendant, Fred Cherry, was found guilty by a jury of the murder of his estranged wife and was sentenced to a term of imprisonment of 20 years. On appeal, he contends that the court erred (1) in admitting evidence of the declarations of his four-year-old daughter, Michelle Cherry; (2) in admitting evidence of a pending divorce between defendant and the victim; (3) in sustaining the prosecutor's objection to portions of defendant's closing argument; and (4) in refusing to instruct the jury that the minor child had been declared incompetent to testify.

Defendant's wife, Janet Cherry, was found shot to death in the basement of her home in the city of East St. Louis on October 25, 1978. Gazelle Russell, a 34-year-old plumber whose house was separated from the decedent's by a vacant lot, testified that on the morning of the offense, between 10 and 10:15 a.m., he was in the kitchen when he observed the defendant, with whom he was acquainted, drive up and park his car in the front of decedent's driveway. The defendant went to the back of the house and then returned to his car, sat in the driver's seat, reached down on the other side of the car, and got out of the car holding his left hand in his jacket. Defendant returned to the back door and made a motion as if trying to knock the door open with his shoulder. Seconds later, the witness heard a shot, ran outside, and saw the child Michelle run out of her house and over to his house. She said: "My daddy is beating up my momma."

Mr. Russell then locked his back door, heard another shot, and saw the defendant come out of the house and get in his car. Russell took Michelle back to her house, where he saw her mother lying in the basement, gasping for air. The witness then called the police and took the girl to her grandmother's house.

Benny Radford, the policeman who was dispatched to the scene of the shooting, testified that he arrived about 10:16 a.m. and saw a woman lying on the floor in the basement at the bottom of the steps. The rear door had been forced open. Immediately after finding the body, Patrolman Radford contacted Michelle and asked her what happened. She said her daddy had shot her mother. Radford stated that he was the only one who spoke to the child immediately after the shooting, and that the child appeared "dazed."

Other evidence revealed that defendant had worked at the same job for more than two years prior to that date, but he did not appear for work on the day of the shooting or thereafter. The police were unable to locate or apprehend defendant until the following week, when defendant's lawyer surrendered him.

Further evidence revealed that the deceased had filed a petition for dissolution of her marriage to the defendant on grounds of physical cruelty, and asked for property and support. A petition for injunction was also filed, asking that defendant be restrained from threatening, harassing or striking his wife. The testimony also revealed that Janet Cherry had a boyfriend named Curtis Mild. A witness testified that he saw the two together on the day of the homicide between 7 and 8 a.m., about two blocks from the scene of the homicide. Sometime later, the same witness testified that he saw Curtis Mild run past the same spot, crying and stating, "He shot her." On rebuttal, the deceased's sister testified that Curtis Mild was not seen in the area of the homicide until police investigation was under way.

Defendant filed a motion in limine to exclude the testimony of his minor daughter, who was four years, 11 months old at the time of the offense. At the hearing on the motion, Michelle explained what happened:

"My mama was downstairs in the basement, and I was in the kitchen eating, and then mama went oh me, and he busted the door open, then I ran over to their house, and then took me out with her and then when the police came, the police asked me a little questions."

When asked where she was in the house at the time her father broke in the door, she stated that she was downstairs in the basement, eating. When asked what she heard when her father broke in the door, she replied that she heard him shoot twice. She stated that she ran to "Gazelle's" house because she was scared. When defense counsel asked her where she was at the time her father came to the house, Michelle replied that she was downstairs with her mother. She said she knew it was her father who came to her house, because her mother had told her who it was. She responded affirmatively when again asked if she was downstairs when she heard the two shots. The court found her incompetent to testify because she could not recollect and narrate what she recollected in a satisfactory manner. Defense counsel then moved to exclude any statements made by Michelle to a third party in light of the ruling that she was not a competent witness. This motion was denied.

Defendant's first contention is that the trial court erred in permitting Gazelle Russell and Patrolman Radford to testify regarding the statements Michelle Cherry made to them. Russell testified that as she ran from the house immediately after the shooting, she told him, "My daddy is beating up my momma." Radford testified that she told him "her daddy had shot her mother" when he arrived at her grandmother's house about 15 minutes after the shooting. The State contends that these statements were properly admitted under the "spontaneous declarations" exception to the hearsay rule.

• 1 Defendant argues that these statements were inadmissible at trial because Michelle was found incompetent to testify because of her age. He asserts that her age makes her statements unreliable, even if they would otherwise have been admissible as spontaneous declarations. However, in People v. Miller (1978), 58 Ill. App.3d 156, 373 N.E.2d 1077, the appellate court concluded that the declarations of a four-year-old child were admissible even though the child was held incompetent to testify, since the statements otherwise qualified as spontaneous declarations. The reliability, and therefore admissibility, of a spontaneous declaration comes not from the reliability of the declarant, but from the circumstances under which the statement is made. The holding in Miller is in accord with the law in a majority of States as well. (See generally 25 Am.Jur.2d Evidence § 728 (1967); Annot., 83 A.L.R.2d 1368 (1962).) Therefore the testimony regarding Michelle Cherry's declarations was not inadmissible simply on the basis of her incompetence to testify at trial.

• 2 Defendant also contends that testimony regarding Michelle's declarations should have been excluded because the State failed to prove that she actually saw the homicide. However, the supreme court has held such direct proof is not necessary:

"We do not understand the requirement to be that the party seeking to have the declaration admitted must prove by direct evidence beyond any possibility of speculation that the declarant personally observed the matters. If such were the rule, there would hardly ever be a case in which a declaration would be admissible. Rather, we think it is sufficient if it appears inferentially that the declarant personally observed such matters and that there is ...


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