Appeal from the Circuit Court of Cook County; the Hon. Robert
L. Sklodowski, Judge, presiding.
JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Following a jury trial, the defendant, Roosevelt Barnes, was convicted of murder and armed violence and was subsequently sentenced to 40 years' imprisonment. On appeal, the defendant raises seven issues which involve admission of evidence, suppression of identification testimony, jury instructions, comments made during closing arguments and reasonable doubt.
The first issue is whether the trial court erroneously allowed a statement into evidence which was made in the hospital by the victim prior to his death. The victim was shot on August 14, 1980. He made a statement to an assistant State's Attorney and a policeman in the intensive care unit at the hospital on August 28, 1980. The victim died on August 31. Prior to trial, the defense presented a motion in limine requesting that the court preclude the State from introducing evidence at trial concerning the victim's statements. During the hearing on the motion, the defendant argued that the victim's statements were not admissible as either a dying declaration or any other exception to the hearsay rule.
The police officer who was present in the victim's hospital room testified both at the hearing in limine and at trial. The assistant State's Attorney who questioned the victim testified only at trial. Their testimony disclosed that when the victim was questioned in the hospital, he was suffering from injuries incurred when he was hit in the chest with a close range blast from a shotgun. His liver had been removed and he had lost 1 1/2 of his lungs. Further, his heart was being monitored, he had a tube down his throat as a result of a tracheotomy and he had three separate intravenous lines attached to his arm. The victim was not under the influence of any medication during the interview. Due to the nature of his injuries, the victim was unable to speak during the interview. However, he was able to respond to questions by nodding his head affirmatively or negatively and by making limited motions with his hands and arms.
The assistant State's Attorney testified that after he introduced himself, he asked the victim if he realized that he was in imminent danger of dying and had little or no chance of recovery. The victim nodded affirmatively. He next nodded affirmatively when he was asked if he knew the defendant. The assistant State's Attorney then asked the victim if he could identify the person who shot him, and the victim nodded affirmatively. When he was asked if the defendant had shot him the victim nodded yes. The assistant State's Attorney then asked the victim how long he had known the defendant. The victim held up three fingers and nodded affirmatively when asked if that meant three years. The victim was then asked whether he or any other person present during the shooting incident had a weapon and the victim shook his head negatively. The assistant State's Attorney asked the victim if the defendant had said that he was going to kill him. The victim nodded affirmatively. The victim was then asked how close the defendant was to him when the shot was fired. Because the victim could not speak, the assistant State's Attorney asked him whether the distance was five feet. The victim shook his head and motioned with his hand that the distance was further than five feet. When asked if he was shot from a distance of 10 feet, the victim nodded affirmatively. The victim was next asked what caused the dispute. He motioned with his hand toward his head. When asked if this gesture meant that the dispute was over a comb or hair pick, the victim nodded affirmatively. The victim was next asked whether he could identify a photograph of the person who shot him and the victim nodded affirmatively. After the police officer and the assistant State's Attorney placed six photographs on the bed next to the victim, the victim pointed to the defendant's photograph.
• 1, 2 On appeal, the defendant argues that the testimony of the police officer and the assistant State's Attorney was insufficient to create the necessary foundation for introducing the victim's statements as dying declarations. Specifically, the defendant contends that there was insufficient evidence to indicate that the victim was aware that he was in imminent danger of dying; that because the victim could not speak, there was no way to judge his state of mind; that the victim did not possess his mental faculties when he was questioned; and that the victim could not reasonably believe that he was in danger of dying because he was not questioned until 14 days after he was shot. The defendant further urges this court to require an additional and unprecedented factor to be present in order for a statement to be recognized as a dying declaration: "That the decedent was of such a moral conviction that he would not have likely lied just prior to death."
In order for a statement to qualify as a dying declaration, the statement must be made under the fixed belief and moral conviction of the person making it that his death is impending and certain to follow almost immediately. (People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328.) The belief of the dying person that death is impending furnishes the guarantee of truthfulness which makes his declaration admissible in evidence. (People v. Beier (1963), 29 Ill.2d 511, 194 N.E.2d 280.) The declarant's belief may be determined by anything said by him and also by the facts and circumstances surrounding the making of the statement. (People v. Davis (1981), 93 Ill. App.3d 217, 416 N.E.2d 1197.) 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. (People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328.) Finally, following a preliminary hearing outside the presence of the jury, the trial court must first be convinced beyond all reasonable doubt that all of the elements of a dying declaration are present before such statements may be heard and considered by the jury. People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328.
• 3 In the instant case, we believe that the victim's statements were properly allowed into evidence by the trial court as dying declarations. First, we believe that there was sufficient evidence that the victim was operating under the fixed belief that his death was impending and certain to follow almost immediately. The victim had been shot in the chest at close range with a shotgun. His liver had been removed and he had lost one and one-half of his lungs. His heart was being monitored, he had a tube down his throat as a result of a tracheotomy, he had three separate intravenous lines attached to his arm and he was in the intensive care room of the hospital. Further, he indicated to both the police officer and the assistant State's Attorney that he realized that he was in imminent danger of dying and had little or no chance of recovery. We believe that all of these circumstances, taken together, demonstrate that the victim was well aware of the fact of his imminent death.
• 4 Second, we believe that the victim was in possession of his mental faculties, was able to understand what he was doing and was able to give a true and correct account of the facts to which his statements related. The victim was not on any medication at the time he was questioned. Further, the victim was able to capably answer questions that were posed to him which required more than a simple yes or no answer. For example, the victim motioned with his hands in response to the assistant State's Attorney question concerning the distance from which he was shot. The victim also motioned with his hands toward his head when asked what had caused the dispute. In addition, the assistant State's Attorney and the police officer both testified that the victim appeared to understand the questions asked to him. We believe that these circumstances indicate the victim's ability to have perceived, recollected and communicated the circumstances surrounding the incident about which he was questioned.
The defendant nonetheless argues that the victim could not reasonably believe that he was in danger of dying because he was not questioned until 14 days after he was shot and that because the victim could not speak, there was no way for the trial court to judge his state of mind. The defendant cites no support for either contention and we fail to find them relevant to the circumstances presented to the court in the instant case. As we have indicated above, the victim was well aware that he was in imminent danger of dying and was possessed of his mental faculties when he was questioned. "The circumstances of each case will show whether the requisite consciousness [of approaching death] existed; and it is poor policy to disturb the [ruling of] the trial judge upon the meaning of these circumstances." (People v. Smith (1974), 21 Ill. App.3d 366, 372, 316 N.E.2d 170, 175.) In the case at bar, we will not disturb the ruling of the trial court where we believe that a sufficient foundation was laid to admit the victim's statements as dying declarations.
• 5 As a final matter, the defendant urges that an additional factor must be present in order for a statement to qualify as a dying declaration, namely, "[t]hat the decedent was of such a moral conviction that he would not have likely lied just prior to death." The defendant cites no case law or statutory authority for this novel proposition. The Illinois Supreme Court has clearly set out the elements that comprise a dying declaration (see People v. Tilley (1950), 406 Ill. 398, 94 N.E.2d 328), and we see no reason why those factors should be increased upon or modified.
The second issue we shall address is whether the defendant was found guilty of murder and armed violence beyond a reasonable doubt. The evidence established that on August 14, 1980, the defendant was approached on a street corner by the victim and three of the victim's friends. After the victim asked the defendant for a hair pick, the defendant refused to supply him with one and walked away. When the defendant looked back at the group from a half of a block away, the defendant stated that he could see the victim and his friends pointing at him. In a statement read at trial, the defendant said that he never saw any weapons but assumed that the group possessed weapons and that they were planning to harm him at a later time. The defendant further stated that he then borrowed a shotgun from a friend and returned to the street corner within five to seven minutes after the initial altercation. The victim and one of his friends were still present on the street corner. The defendant admitted that he walked up to the victim and shot him with a single shotgun blast from nine feet away. The defendant then fled, dismantled the gun and threw it in Lake Michigan.
• 6, 7 On appeal, the defendant maintains that he voluntarily returned to the scene of the initial altercation and shot the victim because he was in fear for his life. Further, the defendant argues that the victim's hearsay statement was the only evidence offered by the State which contradicted the defendant's evidence of self-defense. We disagree.
We have already established that the victim's statements were properly allowed into evidence as dying declarations. The victim stated that the defendant shot him and that no one else at the scene of the altercation had a weapon. The defendant himself did not testify at trial but a previous statement made by him was read into evidence. The defendant admitted that he walked away from the initial altercation and that he did not see any of the other men ...