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People v. Durham

March 23, 2000


Appeal from the Circuit Court of Kane County. No. 96--CF--880 Honorable Philip L. DiMarzio, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN


This court affirmed, as modified, defendant's conviction in People v. Durham, 303 Ill. App. 3d 763 (1999). Our supreme court, in denying defendant's leave to appeal, exercised its supervisory authority and vacated this court's judgment, ordering this court to reconsider the case in light of People v. Whitney, 188 Ill. 2d 91 (1999).

Defendant, Byron M. Durham, appeals from his convictions of first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 1996)) and aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1)(West 1996)) and his consecutive sentences of 27 years' imprisonment for murder and 9 years for aggravated battery with a firearm. We affirm as modified.

At approximately 3:30 a.m. on May 7, 1996, Joe Nunnally was shot several times and taken to Mercy Center Hospital, where he died from his gunshot wounds on May 9. Casey Stewart was also shot at that time, although his wound did not require medical attention. Defendant was arrested on May 9 and subsequently charged with two counts of murder in the death of Joe Nunnally and one count of aggravated battery with a firearm in the wounding of Casey Stewart. Following a jury trial, defendant was found guilty of all three counts and was sentenced to consecutive terms of 27 years (one count of murder) and 9 years (aggravated battery with a firearm) in the Department of Corrections. Defendant's posttrial motion was denied. This appeal followed.

Defendant first contends that the trial court erred in allowing testimony regarding Joe Nunnally's identification of defendant from a photo lineup. The trial court allowed the jury to hear testimony of Investigator Marshall Gauer of the Aurora police department, who testified that on May 8 he and another investigator visited Joe Nunnally at Mercy Center Hospital. Nunnally was unable to speak at that time because he was hooked up to a ventilator and had a large tube in his mouth. However, Gauer explained that he wished to show Nunnally a photo lineup in an attempt to identify the shooter. Nunnally was to nod his head up and down if he saw the picture of his assailant. Gauer pointed to each picture on the display and asked Nunnally if that was the person who shot him. Nunnally shook his head no at the first three photos. However, at the fourth picture, which was a photo of defendant, Nunnally nodded his head when asked if that was the person who shot him. When asked if he was positive, he nodded again. In addition, tears began to fall from his eyes when he saw defendant's photo. The trial court denied defendant's motion in limine regarding this testimony, finding that Nunnally's reaction to viewing defendant's photo was an excited utterance and a spontaneous declaration, thus fitting into an exception to the hearsay rule.

The requirements for admissibility under the excited utterance exception to the hearsay rule are (1) the occurrence of an event sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time for fabrication; and (3) a statement relating to the circumstances of the occurrence. People v. House, 141 Ill. 2d 323, 381 (1990). The factors to be considered in determining whether a statement is spontaneous, excited, and unreflecting are time, the nature of the event, the mental and physical condition of the declarant, and the presence or absence of self-interest. House, 141 Ill. 2d at 381-82.

Looking to these factors and requirements, we conclude that the court erred in finding Nunnally's statement to be an excited utterance or a spontaneous declaration. Foremost in our conclusion is the fact that there was no occurrence sufficiently startling to produce a spontaneous and unreflecting statement. The occurrence that made Nunnally nod and begin to cry was a police officer pointing to a picture of the defendant. While viewing a photograph of a person who shot him may have caused Nunnally anguish or anger, this is not the type of startling event that causes an excited utterance under the hearsay rule. Were it otherwise, any statement made in response to viewing an alleged offender or his photograph would be admissible. Taking this to its logical conclusion, even the mention of an alleged offender's name could then cause an excited utterance. Any questioning of a victim that involved an alleged offender's name could then be used as substantive evidence because of this rule. This is not the intention of this exception to the hearsay rule. The other factors to be considered are in this case inconclusive. Although 34 hours passed between the shooting of Nunnally and his viewing of the photo, he was in intensive care, under sedation, receiving blood, and hooked up to a respirator. He had time to fabricate, but his physical and mental conditions were not conducive to fabrication. That being said, Nunnally was lucid enough at the time he met with Gauer to respond to questions and instructions from Gauer and pick out defendant's photograph. We can see no self-interest on Nunnally's part to pick defendant out as his assailant other than to identify the person who shot him. However, Nunnally's statement fails the first requirement for admissibility under House. Therefore, we conclude that the court erred in finding that Nunnally's identification was admissible as an excited utterance or spontaneous declaration.

However, not all errors in the introduction of evidence require the reversal of a conviction; where other substantial competent evidence of a defendant's guilt is properly before the trier of fact, an error may be found to be harmless beyond a reasonable doubt. See People v. Crayton, 175 Ill. App. 3d 932, 955 (1988). Our review of the evidence in this case leads us to conclude that the court's erroneous admission of Nunnally's identification was, indeed, harmless beyond a reasonable doubt. Mickey Stewart testified that he knew both defendant and Nunnally and saw defendant, from only a few feet away, shoot Nunnally. His description of defendant's clothing matched that given by Casey Stewart. Stewart also testified to an argument between Nunnally and defendant two to three hours before the shooting in which defendant stated "all right, mother f---er, it's on now, I'm going to get you, you pussy." Dr. William Mollohan, who treated Nunnally in the emergency room immediately after the shooting, testified that, in response to questioning, Nunnally twice stated that "Byron" shot him. Byron is the first name of defendant and Byron Savage, the man who brought Nunnally to the hospital and was in the emergency room when Nunnally said "Byron." However, there was no evidence that Byron Savage shot defendant. Defendant presented testimony of four family members in order to establish an alibi. However, none of the witnesses saw defendant at 3:30 a.m. on May 7, the time of the shooting; they all stated that defendant went to bed shortly after 11:30 p.m. on May 6 and that they saw him the following morning. Given this evidence, we conclude that the jury had more than enough evidence, excluding the erroneously admitted identification, to find defendant guilty beyond a reasonable doubt. Therefore, the court's error is harmless and does not require the reversal of defendant's convictions.

Defendant next contends that he was not proved guilty beyond a reasonable doubt of aggravated battery with a firearm. We disagree.

A reviewing court will not reverse a conviction unless the evidence is so improbable that a reasonable doubt of the defendant's guilt is justified. People v. Moore, 171 Ill. 2d 74, 94 (1996). The relevant question on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Moore, 171 Ill. 2d at 95.

Defendant was charged with shooting Casey Stewart under section 12--4.2(a)(1) of the Criminal Code of 1961, which states in relevant part:

"A person commits aggravated battery with a firearm when he, in committing a battery, knowingly or intentionally by means of the discharging of a firearm (1) causes any injury to another person[.]" 720 ILCS 5/12--4.2(a)(1) (West 1996).

A person commits a battery when he knowingly or intentionally without legal justification and by any means causes bodily harm to an individual or makes physical contact of an insulting or provoking nature with an individual. 720 ILCS 5/12--3(a) (West 1996). Defendant argues that, as there is no claim of insulting or provoking contact, the State was required to ...

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