Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. James E. Strunk, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1981.
Defendant, Richard Leonard, was convicted in a jury trial in the circuit court of Cook County of the offense of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) and sentenced to a term of imprisonment of 30 to 60 years. The appellate court reversed defendant's conviction and remanded the cause for a new trial (80 Ill. App.3d 741), holding that testimony relating to certain statements of the victim, Wayne Tews, was hearsay and had been erroneously admitted. In addition, the appellate court determined that the jury should have been instructed on the lesser included offense of voluntary manslaughter (Ill. Rev. Stat. 1975, ch. 38, par. 9-2). We granted the State leave to appeal. The evidence introduced at trial has been thoroughly developed in the appellate court opinion and will be briefly restated here only as relevant to the issues presented.
The State called as its first witness Patricia Ann Gorski, the sister of the victim. She testified that on April 26, 1976, the date of the homicide, decedent was 42 years old, approximately 5 feet 11 inches tall, and weighed approximately 200 pounds, and that he had walked with a limp since childhood. She stated further that decedent was a security guard employed at the Satyr, a building located at 1221 North Dearborn Street in Chicago. In addition, she stated that on Easter Sunday, the Sunday preceding the homicide, she had seen the victim, and he was in good health. She next saw decedent at a funeral home on April 27, 1976, and he was dead.
Frieda Goldberg, resident manager of the Satyr, a 208-unit apartment complex located at 1221 North Dearborn, was the next witness to testify. As resident manager, Miss Goldberg was responsible for leasing the apartments, maintenance of the building, and responding to the tenants' complaints. Miss Goldberg testified that she came to know defendant through her employment. She first met defendant during negotiations of a lease. The property leased was subsequently used in the operation of a discotheque known as the Rhinoceros Club. This club was located on the first floor of the building, adjacent to the lobby. She later saw defendant participating in the operation of this club and had further contact with defendant while showing him an apartment in the building. Miss Goldberg also testified that she knew the victim, Wayne Tews. She stated that she knew Tews for approximately one year, that he was employed by Around the Clock Security Service and assigned to the building as a security guard and doorman, and that she had never received any complaints concerning him. She also testified that the operators of the Rhinoceros Club were evicted for nonpayment of rent in April 1976, and that she was present when the sheriff removed all of the items of personal property located on the premises.
On April 26, 1976, at approximately 1 a.m., Miss Goldberg received a telephone call. She testified that the caller identified himself as Wayne Tews and that he stated that the manager of the Rhinoceros Club wanted to get into the club. In addition, Tews then stated, "He's got a gun." Miss Goldberg testified that she had previously talked with Tews on the telephone, but on this occasion his voice was "very strange, didn't sound like himself. It was very slow and nervous." Miss Goldberg also testified that she heard another voice saying, "Tell the mother f____ manager to come down now, now, now." Miss Goldberg stated that she recognized the voice as that of defendant. At the time of the phone call, however, she did not remember his name. Miss Goldberg told Tews to stall and not to worry, hung up the phone, and called the police. On cross-examination, Miss Goldberg reiterated that she received the phone call at approximately 1 a.m.
Robert Reinschreiber, called as a witness by the State, testified that at approximately 1 a.m. on April 26, 1976, he was returning to his car accompanied by several friends, whom he identified as Richard Frenzel, Teri Moss, and Ron Majcek. The group was walking northbound on Dearborn and had spent the preceding two hours socializing at a lounge and discotheque known as Mother's, located around the corner from 1221 North Dearborn. While crossing the street, Reinschreiber noticed two men engaged in a struggle over a handgun emerge from the lobby of a building. One of the men held the gun by the handle while the other, a security guard, held the gun by the barrel. Reinschreiber identified defendant as the man engaged in the struggle who was holding the handle of the gun. Reinschreiber next heard a shot, saw the guard fall back and cough up a stream of blood, and he then saw the guard resume the struggle for control of the gun. When the guard lost his ability to continue fighting, defendant pushed him over a banister, causing him to fall to the ground. Reinschreiber estimated that Tews fell a distance of approximately six feet. Reinschreiber then stated that he saw defendant lean over the banister and heard defendant yell, "Die mother f____, die." Defendant repeated this epithet approximately five or six times. Reinschreiber then noticed defendant descending the stairs of the building looking somewhat "spaced out." Reinschreiber noticed that defendant no longer had a gun, and Reinschreiber immediately stopped a cab and asked an occupant to call the police. He stated that within minutes the police arrived and that he identified defendant as the man who shot Tews. In addition, he stated that throughout this struggle he saw only one gun, that he did not see an exchange of blows between the two men, and that at all times during the struggle they had their hands placed on the gun. On cross-examination, he stated that defendant did not attempt to flee.
Richard Frenzel, followed by Teri Moss, were also called as witnesses by the State. Both witnesses substantially corroborated the testimony related by Reinschreiber. Frenzel added that the struggle at the entrance to the building lasted approximately 30 to 45 seconds. Moss noticed that the security guard was taller and larger than the defendant, but she could not remember if there was an exchange of blows.
In addition to the above, the evidence introduced at trial established that decedent had suffered two lacerations to the back of his head, a laceration on his right hand, and that the cause of death was a close-range gunshot wound to the chest. It was further established that, at the time of his death, decedent had in his possession a .22-caliber gun capable of firing blanks or tear gas. This gun was recovered by police officers from decedent's pocket. It was stipulated by the parties that defendant suffered a laceration of the lower lip which required sutures, and it was further established that there was a trail of blood located on the stairs of the building which defendant descended. The defense, in opening argument, admitted that the weapon involved in the struggle was owned by defendant.
We initially address the State's argument related to Frieda Goldberg's testimony concerning her telephone conversation with decedent. The appellate court, finding no direct or circumstantial evidence of an occurrence sufficiently startling to produce a spontaneous and unreflecting statement other than decedent's statement itself, reasoned that the statement, "He's got a gun," was inadmissible hearsay. In the absence of Illinois authority on this point, the appellate court relied extensively on the reasoning of the Texas Supreme Court in Truck Insurance Exchange v. Michling (Tex. 1963), 364 S.W.2d 172, 175. In Michling, a statement by a deceased employee relating to the circumstances of an alleged injury at work was offered in a workmen's compensation action brought by the employee's widow. The statement was found not to be admissible as an excited utterance because there was absolutely no evidence to corroborate the existence of a sufficiently startling event.
The State contends that, in the present case, the existence of a sufficiently startling underlying event was proved circumstantially. In support of this position, the State argues that the telephone conversation, which occurred at approximately 1 a.m., was immediately followed by a struggle with defendant over a gun, and that the struggle and its proximity in time to the telephone conversation were established by the undisputed testimony of three witnesses. In addition, directing our attention to what is characterized as a "modern trend," the State argues that the statement itself is sufficient proof of the existence of a startling underlying event. (See McCormick, Evidence sec. 297 (2d ed. 1972).) In the alternative, the State suggests that the statement is admissible as a presentsense impression. See Fed. R. Evid. 803(1).
In seeking to sustain the decision of the appellate court, defendant argues that his right of confrontation and cross-examination is violated where evidence of statements made by the deceased are admitted absent independent evidence of a sufficiently startling event. Defendant refers us to the decisions of other jurisdictions which have refused to admit the declaration under circumstances where it would appear unreliable and untrustworthy. See generally State v. Ellis (Maine 1972), 297 A.2d 91, 94 (refusing to admit decedent's statement, the only evidence of defendant's malice, where decedent refused an offer of help from the listener); State v. Gunthorpe (1970), 81 N.M. 515, 520, 469 P.2d 160, 165 (refusing to admit decedent's identification of defendant, her former husband, where no evidence of a startling event was presented); Chrysler Motors Corp. v. Davis (1970), 226 Ga. 221, 224, 173 S.E.2d 691, 694 (refusing to admit decedent's statement on the issue of proximate cause due to its self-serving nature).
We initially note our agreement with defendant and the appellate court that, absent some evidence of the existence of an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, the testimony relating the out-of-court statement should be excluded. (People v. Poland (1961), 22 Ill.2d 175, 181.) We believe, however, that the appellate court's reliance upon Truck Insurance Exchange ...