Appeal from the Circuit Court of Cook County; the Hon. Earl
Strayhorn, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 17, 1984.
Defendant Gregory Smith was charged by indictment with murder, attempted murder, burglary, aggravated battery, home invasion, and two counts of armed violence predicated on murder and attempted murder, respectively. Following a jury trial, defendant was convicted on all counts, and judgment was entered accordingly. Defendant was sentenced to concurrent terms of 60 years' imprisonment for murder, 10 years for attempted murder, 7 years for burglary, 10 years for home invasion, and 10 years for armed violence. Defendant appeals.
Regina Tatton resided in a two-story home at 7042 South Bell in Chicago. Tatton's niece, Marian Hyllen, and Hyllen's adult son, Edward Boyle, resided with Tatton. On the night of March 26, 1981, Tatton, Hyllen, and Boyle were asleep in their respective upstairs bedrooms; Boyle closest to the stairway, Tatton furthest from the stairs and Hyllen in between. At about 1:20 a.m. on March 27, Tatton was fatally stabbed by an intruder.
Hyllen testified that she woke up and started into Tatton's bedroom when she heard Tatton scream. Before she entered the bedroom, Hyllen saw Boyle run out of Tatton's room and down the stairway and she heard Boyle scream, "Greg, you S.O.B." Hyllen entered Tatton's bedroom and again heard Boyle scream, "Greg, you S.O.B." Boyle then came back upstairs to Tatton's room and said to Hyllen, "That's okay, ma, I know where to get Greg."
Officer Stanley Wonsowicz and his partner arrived at Tatton's home at about 1:25 a.m. on March 27. Boyle met Wonsowicz at the door and Wonsowicz noticed that Boyle was bleeding. Boyle told the officer not to worry about him but rather attend to his aunt, who was upstairs. Officer Wonsowicz proceeded with Boyle up to Tatton's bedroom. The officer observed Tatton lying on her back while bleeding from her chest. Boyle was standing in the bedroom doorway. Over defense counsel's objection, Wonsowicz was permitted to testify that Boyle said, "I can't believe Greg Smith did it." The officer then took Boyle downstairs to question him about the stabbing.
Once downstairs, Boyle told the officer that he was awakened by Tatton's scream and he went to his doorway, where he saw Gregory Smith run out of Tatton's bedroom. Boyle told the officer that he fought with Smith and that Smith cut Boyle's back and finger. Boyle pointed to a pair of shoes lying on the kitchen floor and stated that they belonged to Smith. Wonsowicz also testified that Boyle said to him, "Why don't you get that sonofabitch [sic] Greg." Boyle stated that Smith had been wearing red pants and no shoes.
Edward Boyle died prior to Smith's trial.
The police subsequently went to Smith's home where his mother, Mrs. Henrietta Smith, permitted them to search. No evidence was discovered. Defendant was subsequently arrested and taken to the police station for questioning. Initially, Smith said he did not know anything about Regina Tatton's death. When Officer James Higgins told Smith that Boyle had seen Smith come out of Tatton's home, Smith said that he had been there but only as a lookout. Higgins then told Smith that Boyle said that he had struggled with Smith, and Smith responded that he had not gone upstairs and that Johnny Tuck had planned everything. At this point, the police stopped questioning Smith and sought to locate Tuck.
Johnny Tuck testified that on March 26 at 4:30 p.m., he was smoking marijuana and drinking wine in front of his house with Gregory Smith. Tuck testified that Smith said he had a key to Edward Boyle's house and knew where some old coins were. Smith asked Tuck to go with him to Boyle's house, but Tuck refused.
Tuck admitted having fought with Smith on several earlier occasions. There was also evidence that Tuck had assaulted one of Smith's sisters and that Mrs. Smith had filed a criminal complaint against Tuck.
After talking with Tuck, an assistant State's Attorney spoke with Smith and told him that Tuck was not verifying Smith's story. Smith then confessed to stabbing Tatton. He said he was out of work and needed money and knew that Tatton kept money in a purse next to her bed.
Lawrence Hale and his mother Rosemary testified in Smith's defense. They testified that Smith slept at their home on the night of March 26/27 and that at the time Regina Tatton was stabbed, Smith was watching television with Lawrence.
Henrietta Smith testified in her son's defense. Defense counsel attempted to elicit from her the substance of a conversation she had with Edward Boyle after Regina Tatton's death. The State objected to this line of questioning on hearsay grounds, and a sidebar conference ensued. In the conference, defense counsel stated that if allowed to testify, Mrs. Smith would state that Edward Boyle said that he did not know whom he saw coming out of Tatton's room. Defense counsel also stated that Mrs. Smith had a tape recording of Boyle's statement. The court sustained the State's hearsay objection and prevented defense counsel from questioning Mrs. Smith concerning the tape.
Following the close of the evidence, the jury returned guilty verdicts on all counts. Smith waived a jury for purposes of the death penalty hearing. The trial court, after hearing evidence, denied Smith's motion for a new trial and found that the death penalty was not warranted. The court proceeded to sentence Smith to concurrent prison terms of 60 years for murder, 10 years for attempted murder, 7 years for burglary, 10 years for home invasion, and 10 years for armed violence. The court also found that the aggravated battery count was merged into the attempted murder conviction. Smith then instituted this appeal.
• 1 Defendant first contends that the trial court erred by admitting the hearsay testimony of Officer Wonsowicz. Officers Wonsowicz and Tamberlin were the first to arrive on the scene after the stabbings. Officer Wonsowicz testified that upon arriving at the scene, he met Edward Boyle. Boyle's back was bleeding, and he appeared to be in great pain. Boyle said to Wonsowicz, "Don't worry about me, my aunt is upstairs." Boyle and the officers then ran up the stairs to Regina Tatton's bedroom. The officers entered the room where Tatton lay face up with a large amount of blood coming from her chest. Boyle, who was standing just outside the bedroom door, yelled, "I can't believe that Greg Smith did it." Officer Wonsowicz took Boyle downstairs to the kitchen area, where Boyle explained that he had been lying in bed asleep when he heard a scream, jumped out of bed and went to his bedroom doorway, where he saw Greg Smith running out of Tatton's bedroom. Boyle also told Wonsowicz that he struggled with Smith and that Smith cut Boyle's back and finger. Boyle pointed to some shoes in the kitchen and said they belonged to Smith. Boyle asked Wonsowicz, "Why don't you get that sonofabitch [sic] Greg." Wonsowicz also testified that Boyle told him that Smith was wearing red pants and no shoes.
Defense counsel objected on hearsay grounds each time Wonsowicz testified as to what Boyle told him. At one point, defense counsel insisted that Boyle's statements were not spontaneous declarations, to which the court replied:
"THE COURT: I didn't say it was a spontaneous declaration, I said Boyle's statement to the police about the event was admissible. I didn't say it was admissible on the basis of spontaneous declaration.
MR. DRAPER: Under what theory?
THE COURT: I'm saying it is admissible on the basis that this is a declaration of a witness to the event as to what he saw happen.
MR. DRAPER: Which is hearsay, obviously.
THE COURT: Well, of course.
MR. DRAPER: For those reasons, since it is not without any ...