APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
542 N.E.2d 737, 186 Ill. App. 3d 541, 134 Ill. Dec. 391 1989.IL.845
Appeal from the Circuit Court of Cook County; the Hon. Fred G. Suria, Jr., Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Defendant appeals his conviction for murder and his sentence of 50 years' imprisonment, raising the following issues: (1) whether the trial court erred in admitting into evidence the victim's statement identifying defendant as his assailant; (2) whether the trial court abused its discretion in denying defendant's motions for a mistrial; (3) whether defendant was denied a fair trial by the prosecutor's statements during opening and closing arguments; (4) whether it was plain error for the trial court not to instruct the jury on voluntary manslaughter; and (5) whether the trial court abused its discretion in sentencing defendant to an extended term.
Defendant was charged with three counts of murder and one count of home invasion. At a pretrial hearing held after defendant objected to the State's use of a police officer's testimony that the victim had identified him, Chicago police officer Michael Fuith testified that on September 7, 1985, at 3:50 a.m., he and his partner responded to a call that a man had been stabbed at 1426 West Leland in Chicago. When they arrived at the scene, a group of people was supporting the victim, Donald Curry, who was bleeding profusely from the upper part of his body. Fuith stated that the victim was "angry and excited," and that he identified defendant as his attacker. The other people present also indicated that defendant was the assailant. The police then transported the victim to the hospital, and on the way there the victim again stated that defendant had stabbed him "over a woman." In the emergency room the victim continued to implicate defendant. On cross-examination, Fuith admitted that his reports do not make reference to having any conversations with defendant at the scene, in the police car or at the hospital. He claimed to have related these conversations to a detective, but there is no reference to the victim's statements in the detective's report. The trial Judge ruled that he would not allow the victim's statements in as dying declarations, but would admit them as excited utterances. He made a finding that there was an occurrence sufficiently startling to produce a spontaneous declaration, an absence of time to fabricate, and that the officer's question of what had happened did not destroy the spontaneity of the declaration. The following day, prior to trial, the Judge sua sponte modified his ruling to allow the State to present testimony as to only one of the victim's statements identifying defendant, stating that "if one repeats the statement numerous times, it at some point becomes no longer a spontaneous declaration." He allowed the State to choose which of the victim's statements it would use, either that made when the police first arrived at the scene or his statement while being transported in the police car to the hospital.
At trial, Debra Carroll testified that she lived in a second-floor apartment at 1426 West Leland with her common law husband, Fred Hakanson, and their children. Fred's brother Eric also resided in the apartment at the time of the stabbing. Carroll knew everyone involved in the occurrence. Elizabeth Bradley, a friend of Carroll's, had been dating the victim for about two weeks, and defendant was "Bradley's live-in boyfriend." At approximately 3:30 a.m., on September 7, 1985, Bradley and the victim arrived at Carroll's apartment. Carroll was asleep, but she heard Eric Hakanson, who was sleeping on a couch in the living room, answer the doorbell and she also heard the victim say "It is me, Don," as he entered the apartment. Carroll remained in bed, and although she heard Eric lay on the couch, she did not know what the victim did or where he went in the apartment. Approximately 10 minutes later, Carroll heard "a shuffling noise" and she walked into the living room. There, she saw defendant bent over Bradley and the victim, who were lying on the floor, pulling a knife out of the victim's chest. Carroll exclaimed "Oh, my God," and defendant turned around, looked at her, then ran towards the back door. Carroll followed him to the back porch and watched him run through a gangway and into an alley. Carroll returned inside to alert the others that defendant was in the alley, then she grabbed a baseball bat and ran down the back stairs to the second-floor landing, where she encountered defendant. They struggled, and then defendant ran back into the gangway and into the alley. By the time she returned to her apartment, Fred and Eric had already helped the victim down to the front of the building. Approximately an hour later, she telephoned Fred at the hospital to tell him that defendant was standing across the street from their building. Upon Fred's return a short time later, Carroll saw defendant motion "come on, come on" to Fred, who started to chase him. She later learned that defendant had been arrested. The victim died three days later.
On cross-examination, Carroll testified that when she heard the "shuffling" she did not hear yelling or things getting knocked over, and, although her two Labrador dogs were in the living room, they did not bark.
Officer Fuith testified that he and his partner transported the victim to the hospital, and on the way the victim kept repeating, "fucking Alvarez, he stabbed me, he fucking stabbed me over a woman," and that "I was going out with his girl friend and he couldn't handle it and the jealous little prick, he couldn't handle it." Additionally, Fuith stated that the victim indicated that defendant had stabbed him "in the apartment where he had been staying." Fuith also testified that he had conversations with Fred, Eric and Bradley, both at the scene and at the hospital, and that after these conversations he sent a radio broadcast into his district to look for defendant. Defendant was apprehended later in the morning of September 7, 1985, after being chased by police.
Dr. Edmund Donoghue testified that he performed an autopsy on the victim, which revealed that he had suffered a deep stab wound to the upper left lobe of the lung, between the second and third ribs, a stab to the left lower lobe of the lung, a stab wound to the upper abdomen which perforated the left lobe of the liver, and superficial stab wounds to the chest, armpit and left arm, as well as various bruises and abrasions. He gave his opinion that the victim died of multiple stab wounds, and he disagreed with defense counsel's suggestion that he died from liver failure and renal failure.
Dr. Michael Friedberg, the victim's treating physician, testified that, but for his cirrhosis of the liver and portal hypertension, the victim would not have died from his stab wounds; on cross-examination, he stated that without the stab wounds, the victim would not have died when he did.
The jury found defendant guilty of murder, and the trial court directed a verdict in favor of defendant on the home invasion charge. After hearing factors in aggravation and mitigation, the trial Judge sentenced defendant to an extended term of 50 years' imprisonment, finding that the crime was "accompanied by exceptionally brutal and heinous behavior." He now appeals his conviction and sentence.
Defendant first argues that the trial court erred in allowing Officer Fuith to testify regarding the victim's statements identifying him as his assailant. He contends that Fuith's testimony is "devoid of all credibility," because there was nothing in his reports concerning the victim's statements, and thus he was relying on his memory alone to relate statements made a year previously. The State correctly responds that the trial Judge had an opportunity to view the witness and weigh his credibility, and it is not unreasonable to believe that Fuith remembered what a severely wounded and bleeding man had said as he was transported to the hospital. Moreover, at trial the jury was told that there was nothing in Fuith's reports regarding the victim's statements, and thus they knew he was relying on his memory when they weighed his credibility.
The victim's statements were admitted under the spontaneous declaration exception to the hearsay rule. In order to bring a statement within that exception, the following elements must be present: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) the statement must relate to the circumstances of the case. (People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.) The spontaneity of a statement is to be Judged from the totality of the circumstances surrounding the event (People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 634), the evidence must indicate that the declarant personally observed the matters which are the subject of the spontaneous declaration (People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804), and the declarant must be deemed reliable. People v. Miller (1978), 58 Ill. App. 3d 156, 373 N.E.2d 1077.
Defendant contends that there was an absence of evidence to support the inference that the victim had an opportunity to perceive and identify his assailant and thus his statements should not have been admitted. He asserts that there is no indication that the victim was awake when he was attacked, and, in fact, it was more than likely that he was asleep. He emphasizes that the victim was lying on the floor, everything was quiet, no one yelled or screamed, nothing was knocked over, and the dogs did not bark. He maintains that the evidence indicates that it is probable that the victim did not see his attacker and that he identified defendant based on the statements of other people.
The State responds that the claim that the victim slept through his own stabbing is "without merit," yet it argues that the murder was exceptionally brutal and heinous because defendant attacked a sleeping man. The State may be seen to resolve this apparent contradiction by arguing that the victim awoke during the attack; however, it fails to make its position clear in its brief. The State notes that the victim positively identified defendant and that he understood that defendant attacked him because of his relationship with Bradley. It argues that his identification is reliable and satisfies the spontaneous declaration exception, hence it was properly admitted.
The jury took into consideration the testimony that no one screamed or knocked over anything and that the dogs did not bark, and it accepted the victim's statements as truthful. The statements were admissible as spontaneous declarations, and the circumstances surrounding them go to the weight given them by the jury. We find no error in the trial court's rulings on the issues raised by defendant on this aspect of his case.
Defendant next argues that the trial court abused its discretion in denying his motions for a mistrial. Although defendant made several such motions, he raises the denial of only three of them in this appeal. He contends that testimony from witnesses not present at trial was admitted, thereby denying him his right to a fair trial and to confront his accusers.
Fred Hakanson testified that he and his brother looked for defendant after returning from the hospital on September 7, 1985. The prosecutor then asked the following questions:
"Q. Mr. Hakanson, Eric was with you the entire time you were looking for the defendant, is that correct?
Q. And he was also with you when you talked to the police, ...