Appeal from the Circuit Court of Kane County. No. 01-CF-1755 Honorable Timothy Q. Sheldon, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
Modified Upon Denial of Rehearing April 29, 2005
A jury found defendant, Paul S. Gilmore, guilty of murder (720 ILCS 5/9--1(a)(1) (West 2000)), and the trial court sentenced him to 32 years' imprisonment. On appeal, defendant contends that the trial court erred by (1) admitting, pursuant to the dying declaration exception to the hearsay rule, statements the victim made to police officers while receiving treatment at the hospital and (2) summarily denying his pro se posttrial motion alleging that his trial counsel was ineffective. We affirm the trial court's decision to admit the victim's statements but must remand the cause for a further hearing on defendant's pro se posttrial motion. II. BACKGROUND The State charged defendant with murder and aggravated criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 2000)) and notified defendant that it would seek to introduce statements the victim, Donald Harvey, made shortly before his death. The trial court conducted a hearing to determine the admissibility of Harvey's statements. During the hearing, A.C. Span testified that he was Harvey's roommate. At about 5 a.m. on March 31, 2001, Span was sleeping when the sound of a gunshot awoke him. After first looking out his window, he went downstairs, where he saw Harvey lying supine on the floor just inside the doorway to their apartment. Harvey told Span that he had been shot, he could not move his legs, and his mouth was dry. Harvey's speech was soft and slurred, but Span was able to understand him. Harvey appeared to be in pain and gasped for air a couple of times. Span did not see any blood.
Span asked what had happened. Harvey replied, "I opened the door up. He was standing at the door, the guy we got to fighting with. He shot me, and he ran." Span turned off the lights and instructed the others in the apartment to go upstairs. He got some water for Harvey and asked his neighbors to call 911. At about this time, Harvey said that he was dying. Span testified, however, that he could not remember if he later told the police about this statement. Span estimated that the police and paramedics arrived 15 to 20 minutes after he heard the gunshot. Harvey went in an ambulance to the hospital.
Dr. William Mollohan testified that he treated Harvey, who arrived at the emergency room at 5:45 a.m. Dr. Mollohan spoke with Harvey shortly after Harvey arrived. When Dr. Mollohan first saw Harvey, Harvey was conscious and alert. He had been shot in the chest and was in critical condition. Harvey had a half-inch diameter hole in his chest and a corresponding exit wound of about the same size in his back. Dr. Mollohan asked Harvey how he was doing and if he could breathe, and Harvey responded that he was not doing well. Harvey was able to answer several specific questions about his condition. He stated that he believed that he had been shot at close range with a handgun. He reported that he could not move his legs, felt light-headed, and was experiencing pain that could be classified as "10" on a scale of 1 to 10.
Dr. Mollohan believed that Harvey's prognosis was poor. He said to Harvey, "you are obviously in rough shape. *** We need to attend to you here in the ER and give you emergency treatment and prepare you for emergency surgery." Medical personnel took a blood test and inserted a chest tube to remove blood and to prevent further lung collapse. Shortly before Harvey went into surgery, his blood pressure "bottomed out" and he had no palpable pulse. At 6:24 a.m., Harvey was taken into surgery, where he died.
Detective Christine Johnson of the Carpentersville police department testified that she saw Harvey in the emergency room shortly before 6 a.m. Because medical personnel were attending to Harvey, Johnson was able to spend only about two minutes speaking to him. Harvey was lying on a gurney and had an oxygen mask over his face and intravenous needles in his arm. He appeared to be in pain and had some difficulty speaking. Johnson asked Harvey if he knew the name of the person who shot him. Harvey replied that he did not know the person's name but he had fought with the person earlier that evening. He added that Span also had fought with the person and perhaps knew his name. Harvey said that the person was male, African-American, and taller than Harvey. Later that day, Johnson was present when Span gave a taped statement. The parties stipulated that, during the statement, Span never claimed that Harvey said he was dying.
The trial court found beyond a reasonable doubt that the elements for admitting a dying declaration had been satisfied. In finding that Harvey believed that his death was imminent, the court relied on the direct evidence that Harvey said he was dying and also the evidence about the seriousness of Harvey's wounds.
Three days before the trial, defense counsel informed the court that she was unable to serve a witness, Patricia Holley, with a subpoena. Counsel stated that she did not need to request a continuance because the parties were working on a stipulation regarding Holley's testimony. No such stipulation was offered during the trial, however.
During the trial, Dionna Ross testified that, in 2000, she was convicted of aggravated battery, for which she was sentenced to probation and fined. A judge issued a warrant for Ross's arrest when she failed to appear in court to pay the fine. The State informed the judge that Ross was a witness in the present cause, and the judge recalled the warrant. Ross had a pending court date to pay the fine, and her testimony in the present cause would have no bearing on the outcome of the other matter.
On March 30, 2001, Ross was staying in the apartment of Harvey and her boyfriend, Span. The apartment was at 11 Oxford in the Foxview Apartments. Also staying in the apartment were April Herd; April's son, Darrell; and Patricia Holley. At about 10 p.m., Harvey asked Ross to get a friend who lived in the same complex, at 20 Oxford. When Ross knocked on the door of the friend's apartment, defendant answered and told Ross that the friend was not home. Ross did not know defendant at the time. She described defendant as having no hair on his head and unkempt facial hair.
Ross went into the apartment to wait. She had with her two beers that she had brought from Span and Harvey's apartment. Ross and defendant sat down, smoked some marijuana, and talked. Ross stayed in the apartment for three to four hours. When she started to leave, defendant prevented her from doing so. Defendant then forced Ross to perform oral sex on him. Afterwards, he allowed Ross to leave.
Ross returned to Span and Harvey's apartment and told them what had happened. She explained that she did not know the person who attacked her. Ross, Span, and Harvey went to the other apartment, but nobody answered the door. On their way back to their apartment, the three saw a group of people in the parking lot. Ross spotted defendant and stood next to him. Span accused defendant of raping his girlfriend. Defendant replied, "your bitch sucked my dick." Span then began punching defendant. Span gave defendant "a good beating" that was "enough to break his jaw," while defendant was unable to "get any licks in." While the fight was in progress, Span and Harvey directed Ross to return to the apartment.
Span and Harvey returned about 30 minutes later, and Ross spoke to them about the events of the evening. Eventually, Ross went to bed. The sound of a gunshot awoke Ross. Holley knocked on the bedroom door and said that Harvey had been shot. Ross went downstairs and saw Harvey lying on the floor. Span went over to Harvey, and Harvey said, "The [bald-headed] dude who we got into it with just came and shot me."
Because there was no telephone in the apartment, Span yelled to a group of people outside and asked them to call the police. Eventually, Span went across the hall and asked the neighbors to call the police.
Span testified that, in 1991, he was convicted of felony and misdemeanor thefts. At the time of the trial, Span faced charges of residential burglary, possession of a stolen motor vehicle, misdemeanor theft, and aggravated theft on a public way. The incident giving rise to the charges occurred before Harvey's death. Span was in the midst of plea negotiations that would result in the dismissal of the residential burglary charge and a sentence of probation and time served for possession of a stolen motor vehicle. Span asserted that the possession charge was the only one for which the State had evidence sufficient to convict him. He explained that the outcome of the charges pending against him was not contingent in any way on his testimony during defendant's trial.
Span testified that Ross left his apartment at about 10 p.m. to find a friend. When Ross returned at about 12 a.m., she was very upset and said that she had been raped. Ross led Span and Harvey to the apartment where the incident took place. Nobody answered the door, and the three headed back to their apartment. The group spotted defendant in the parking lot, and Ross identified him as the person who had attacked her. Span and defendant began fighting. Span testified that he was "winning" the fight. Defendant asked the people in the crowd to help him, but no one did. When Span grew tired of fighting, Harvey took over. Harvey and defendant fought for about 10 minutes, and Harvey was winning the fight. Span broke up the fight, and Span and Harvey went home. Span spoke with Ross for a while and then went to sleep at about 1 a.m.
At about 5 a.m., a gunshot awoke Span. He then heard the outer door to his building slam shut. Span ran to his bedroom window, which overlooked the parking lot. He saw defendant exit the building, run across the parking lot, and enter 20 Oxford. Span heard someone in a group outside ask, "Did you get him?" Defendant was holding something in his right hand. Span went downstairs, where he saw Harvey lying on the floor. Span checked for blood but did not see any. Harvey said "that the guy we got in the fight with shot him." Span asked a neighbor to call 911. The police arrived first, about 20 minutes later. Span picked defendant's photograph out of a lineup and later identified defendant during an in-person lineup.
Detective Timothy Bosshart testified that, in response to a dispatch, he arrived at Harvey's apartment at about 5:10 a.m. While at the scene, he recovered a .45-caliber shell casing. Bosshart explained that, when someone fires a semiautomatic gun, the shell is ejected, and the next round moves into place. In contrast, when ...