APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
515 N.E.2d 1252, 162 Ill. App. 3d 257, 113 Ill. Dec. 945 1987.IL.1359
Date Filed: September 17, 1987; Modified on Denial of Rehearing November 30, 1987.
Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.
JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
After a jury trial, defendant was convicted of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(a)) and subsequently sentenced to five years' imprisonment. He appeals arguing: the erroneous admission of hearsay testimony violated his constitutional right to confront his accusers, the testimony was not a spontaneous declaration, and the prosecutor's closing argument deprived defendant of a fair trial.
James Turner testified that at approximately 2:30 a.m. on the morning of June 21, 1986, he was driving his sister's vehicle to her home. The car stalled on the east side of Springfield, and three to seven men approached the car. He recognized defendant and two of defendant's brothers. One of the men tried to open the passenger door, and as Turner started to open the driver's side door, he was pulled from the vehicle.
Turner stated that a scuffle ensued after he left the vehicle. Defendant was on top of him and hit him with a club or a stick. He suffered severe injuries to his head, back, and knees. Turner was asked how the fight ended. Defense counsel objected to the question as it called for hearsay evidence. The court allowed the testimony over defendant's objection, finding it was a spontaneous declaration. Turner stated that as defendant was standing over him he heard someone say, "You're going to kill him, Larry. You're gonna kill him, Larry. You're gonna kill him, Larry." Turner passed out and remembered walking around until an ambulance came. He admitted telling the police officer that a friend of his was driving the vehicle but explained that he was afraid the police were going to arrest him for driving with a suspended license. Turner stated that 2 1/2 weeks after the incident he picked defendant's photo out of a photo array.
On cross-examination, Turner admitted that he had consumed four beers that day. He also admitted that his story had changed twice when he was talking to the police. He recalled giving the other accounts but admitted that those accounts were not truthful. Turner further admitted that he swung at defendant. On redirect examination, Turner stated that he was in bad shape at the hospital and had been questioned the first time in the emergency room.
John Workman, a Springfield police officer, testified that he found Turner wandering around the east side of Springfield severely beaten on June 21, 1986. Turner had told him that a friend of his was driving the car. After Turner's release from the hospital, he told Workman he had been driving but lied because of a license violation.
Tom Murphy, a detective with the Springfield police department, testified that Turner identified defendant's photograph. On cross-examination, Murphy stated that he did not remember Turner saying his car had stalled but recalled Turner stating he had been approached by a black female. Defendant then elicited the same statement from the officer that he had objected to from Turner. Murphy further stated that the police had been ...