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People v. Lang

OPINION FILED MAY 17, 1982.

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

v.

ROBERT C. LANG, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Tazewell County; the Hon. IVAN L. YONTZ, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The defendant, Robert C. Lang, appeals from his conviction for murder following a jury trial in the Circuit Court of Tazewell County.

The facts indicate that on February 22, 1981, at 3:40 a.m., June Trewyn, a police dispatcher for the City of Pekin, received a telephone call from an unidentified caller whose whispering voice requested that a squad car be sent to 1107 Gehr Street. The dispatcher repeated the street name, spelled it and asked if that location was in the Schaferville area. The caller replied that it was and then added, "They're trying to kill me." At that point the dispatcher heard two male voices in the background and one of them shouted, "I'm going to kill her. I don't care. I'm going to kill her anyway, she's dead." The dispatcher repeated to another dispatcher, "Hurry, they're trying to kill her," and the caller responded, "Yes, hurry, hurry." The button was then pushed down by someone at the caller's end of the line so that all the dispatcher heard was a beeping sound.

A squad car was immediately dispatched to the address given by the caller and the murder victim was found shot to death. The defendant admitted that he shot his wife.

The defendant first argues that the trial court abused its discretion in admitting the testimony of the police dispatcher. The defendant alleges that the trial court improperly permitted the dispatcher to relate the substance of the call as an exception to the hearsay rule as being an excited utterance.

• 1, 2 The law is well settled in Illinois that a statement may be admitted as an exception to the hearsay rule if it is an excited utterance. In order to establish an excited utterance it is necessary to show that there is an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, the absence of time to fabricate, and the statement must relate to the circumstances of the occurrence. (People v. Leonard (1980), 83 Ill.2d 411, 415 N.E.2d 358; People v. Poland (1961), 22 Ill.2d 175, 174 N.E.2d 804; People v. Robertson (1976), 43 Ill. App.3d 143, 356 N.E.2d 1180.) If a statement is a spontaneous declaration, then the victim's statement may be admitted in its entirety. (People v. Wilson (1976), 44 Ill. App.3d 15, 357 N.E.2d 842.) The trial court is accorded a reasonable degree of latitude in determining the admissibility of statements as excited utterances. The court will be found to have abused its discretion only if the statements are not so immediately connected with the event as to indicate lack of premeditation. People v. Cherry (1980), 88 Ill. App.3d 1048, 411 N.E.2d 61; People v. Wilson (1976), 44 Ill. App.3d 15, 357 N.E.2d 842.

• 3, 4 The defendant attacks the introduction of the telephone conversation for several reasons. He first argues that the person who made the phone call never identified herself and that the individual's voice was not recognized by the police dispatcher. The defendant therefore argues that the individual was not sufficiently identified as the victim, Candy Lang, to be admissible as an excited utterance. It must first be noted that the defendant need not be identified in order for statements to be spontaneous declarations. People v. McNeal (1980), 88 Ill. App.3d 20, 410 N.E.2d 480; People v. Fields (1979), 71 Ill. App.3d 888, 390 N.E.2d 369.

Secondly, the circumstantial evidence strongly suggests that the victim made the phone call. The individual who made the call gave the victim's and defendant's address. The individual requested a squad car and said that "they're trying to kill me." The dispatcher heard a male voice shouting, "I'm going to kill her; I don't care." Approximately five minutes later a deputy sheriff found the victim shot at the home of the defendant and the victim. The defendant admitted that he shot his wife.

It is difficult to imagine the telephone call received by the police dispatcher as being placed by someone other than the victim. It would be coincidental indeed for a prank caller to choose the precise moment when the victim was being shot to call the police and report an impending shooting. It would be even more coincidental for that prank caller to give the victim's address. The defendant testified that he and the victim were alone in their home at the time of the crime. He did not make the call. Therefore, it is clear that the trial court did not abuse its discretion in permitting the dispatcher to testify to the substance of the phone call and permitting the People to infer that the victim made that call.

The defendant also argues that the evidence is insufficient to establish that the caller was actually excited. That argument seems to ignore the fact that the victim was found shot within five minutes of the call. It also ignores the testimony that the shouting male voice was threatening the caller with death during the telephone call. We believe that an immediate threat of death is sufficient to engender a sufficient degree of excitement to satisfy the rule.

• 5 The defendant also objects to the dispatcher's characterization of the caller as a female. On cross-examination the witness was not able to positively identify the whispering voice as female. The defendant did not specifically object to the testimony on this ground at trial. He has therefore waived the objection on appeal. (People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) Also, it is clear that the witness was thoroughly cross-examined by counsel at trial and the witness admitted that she could not positively identify the caller's voice as female. Thus, any error in the instant case was harmless. Furthermore, the shouting male voice heard by the dispatcher said, "I'm going to kill her; I don't care. I'm going to kill her anyway; she's dead." (Emphasis added.) The caller indicated that "she" was the target of that individual. The evidence is more than sufficient to conclude that the caller was female.

• 6 Nor did the trial court err in permitting the dispatcher to repeat her statement to a dispatcher to "hurry, they're trying to kill her." The defendant did not specifically object to that statement at trial, the statement was an excited utterance by the dispatcher based on the frantic nature of the phone call received, and the statement was admissible to show the dispatcher's present sense impression that the caller was a female.

That the remaining requirements for an excited utterance were present is not subject to debate. Clearly there was an absence of time to fabricate in the instant case. As indicated, the statements were made within minutes of the victim's being shot and were in fact made while the victim was being threatened. Likewise, the statements made by the caller certainly relate to the circumstances of the threats made against her. For these reasons, the trial court did not err in admitting the testimony of the police dispatcher as exceptions to the hearsay rule under the doctrine of excited utterance.

The defendant next argues that the trial court erred in permitting a prosecution witness to testify as an expert witness. Apparently the defendant questions the relevance of a witness' ...


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