People v. Jenkins

2013 IL App (4th) 120628

986 N.E.2d 227

369 Ill.Dec. 278

The PEOPLE of the State of Illinois, Plaintiff–Appellant,

v.Dearion J. JENKINS, Defendant–Appellee.

No. 4–12–0628.

Appellate Court of Illinois, Fourth District.

March 15, 2013.

Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, Robert J. Biderman, and David E. Mannchen, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Michael J. Pelletier, Karen Munoz, and Colleen Morgan, all of State Appellate Defender's Office, of Springfield, for appellee.

OPINION

Justice APPLETON delivered the judgment of the court, with opinion.

[369 Ill.Dec. 279]¶ 1 Defendant, Dearion J. Jenkins, was to be tried by a jury for allegedly murdering Cedric Mallett (720 ILCS 5/9–1(a)(3) (West 2010)). Immediately before jury selection was to begin, the trial court heard a motion in limine by defendant to exclude, as hearsay, three statements that Mallett had made to police officers after he was shot. The court denied the motion in part and granted it in part, holding the first two statements to be admissible and the third statement to be inadmissible. Instead of proceeding to trial, the State filed a certificate of impairment and a notice of appeal, seeking review of the trial court's exclusionof Mallet's third hearsay statement. See Ill. S.Ct. R. 604(a)(1) (eff. July 1, 2006); People v. Drum, 194 Ill.2d 485, 490, 252 Ill.Dec. 470, 743 N.E.2d 44 (2000); People v. Young, 82 Ill.2d 234, 247, 45 Ill.Dec. 150, 412 N.E.2d 501 (1980).

¶ 2 In ruling that the third statement was inadmissible, the trial court concluded it would be unreasonable to draw the factual inferences necessary to bring the statement within the hearsay exceptions the State had invoked, namely, the exception for dying declarations and the exception for forfeiture by wrongdoing. We do not find the trial court's factual determinations to be against the manifest weight of the evidence. Therefore, we affirm the decision to exclude Mallett's third hearsay statement.

¶ 3 I. BACKGROUND

¶ 4 The trial court heard defendant's motion in limine on June 26, 2012. According to the motion, a Champaign detective named Mark Strzesak went to Carle Hospital on July 5, 2011, immediately after Mallett was transported there to be treated for a gunshot wound. Strzesak questioned Mallett two times that day: at 3 a.m., as Mallett was being prepared for surgery, and at 11:45 a.m., after Mallett underwent surgery. The motion sought to exclude, as inadmissible hearsay, any statements or gestures Mallett made to Strzesak on those occasions. Defense counsel, Daniel C. Jackson, argued that the only possibly relevant exception to the hearsay rule was that for dying declarations, and he argued that the statements did not come within the exception for dying declarations because there was no evidence that Mallett believed his death to be imminent. Jackson reasoned:

“Judge, there is clearly no indication the death was imminent in this. The victim was in recovery when he made the statements. It was a full day and a half before he passed away.

The officer, in fact, when he spoke to the defendant [ sic ] the second time in the recovery room, he told him that he was having a little trouble understanding him because the defendant's [ sic ] mouth was so dry and that he would come back in a day or so to talk to him later. So there is clearly no impression that the officer or the victim knew the death was imminent.

* * *

It is the burden of proof on the server, on the State, Judge, to prove beyond a reasonable doubt that that situation existed with this defendant. We would suggest to the court that the evidence will show or shows that it clearly wasn't, that the victim made statements well before he passed away, that neither he nor anyone talking to him told him that he was going to die or thought that that was even an imminent situation.”

¶ 5 In response, the prosecutor, Dan Clifton, identified three occasions when Mallett made a hearsay statement to a police officer, and he argued that all three statements were admissible in evidence. Because the exact content of Clifton's offer of proof is important, we will quote him extensively:

“Your Honor, I would argue that the statements made by the victim were made at three different times under different circumstances and that each statement should be given individual consideration.

With regard to the now deceased victim's first statement, the evidence will be at 2:41 a.m., on July 5, 2011, Champaign Police Department Officer David Butler was dispatched to a shooting at 1110 Dorsey in Champaign. He arrived at that address three minutes later and found the now deceased victim Cedric Mallett slumped in a chair outside the front door of his apartment.

Mallett appeared to be going in and out of consciousness, was having difficulty breathing, and was bleeding from a gunshot wound to his back.

While waiting the arrival of an ambulance and paramedics, Officer Butler asked Mallett if he knew who shot him, and Mallett replied, ‘Dearion. He took $20 from me.’

Officer Butler tried to ask Mallett additional questions, but he appeared to be physically unable to answer those questions.

With regard to the victim's second statement, the evidence will be that Mallett was transported by ambulance from 1110 Dorsey to the Emergency Department of Carle Hospital in Urbana.

Shortly thereafter Champaign Police Department Mark Strzesak, spoke to Mallett as medical personnel were rushing him from the emergency department to the operating room.

Mallett's apparent physical condition and the demeanor of the medical personnel treating him caused Strzesak to be concerned that Mallett would not survive. He felt this might be his last opportunity to speak with Mallett. Strzesak observed that Mallett appeared to be in great pain.

Mallett agreed to look at photo lineup. The defendant's photo was not included in that lineup. Mallett told Strzesak that the person who shot him was not depicted in that lineup.

Strzesak asked Mallett if he knew who shot him, and Mallett replied that it was Dearion. He told Strzesak he didn't know Dearion's last name, but that Dearion's girlfriend lived on North Wood, three houses from McKinley on the left.

Strzesak was prevented from speaking further with Mallett by Mallett being taken into the operating room.

With regard to the victim's third statement, the evidence will be that at about noon on July 5, 2011, Detective Strzesak spoke with Mallett again at Carle Hospital. Mallett appeared to still be in great pain, was receiving medication, was attached by tubes to various medical devices, and his abdomen bore at [ sic ] diamond-shaped surgical dressing which measured approximately 18 inches by 12 inches, which Strzesak learned was covering a gaping incision remaining from treatment from Mallett's gunshot wound.”

¶ 6 At that point, Clifton proffered to the trial court two photographs of Mallett in his hospital bed. These photographs are in the record, sealed by order of the trial court. We have unsealed them and then resealed them. In People's exhibit A, Mallett is lying on his back, naked. His eyes are closed. Intravenous tubes are attached to him. An oxygen tube is taped to his nose. A large oval-shaped dressing is taped to his abdomen, and a tube extends out of the dressing.

¶ 7 In the other photograph, People's exhibit B, all the tubes and dressings have been removed, and it is just Mallett, naked and lying on his back, with his eyes closed. He presumably is dead in this photograph. With the big oval-shaped dressing gone, the incision in his abdomen is now exposed to view. It is a large gaping incision that appears to be of the dimensions that Clifton described. Entrails bulge out of the incision.

¶ 8 Clifton continued:

“MR. CLIFTON: Your Honor, those photographs show the nature of the large incision that was made to the victim's abdomen exposing his viscera that was covered by the surgical dressing.

Again, on this occasion Detective Strzesak was concerned that Mallet might not survive, so he pressed on in his interview with Mallett despite his apparent pain and poor medical condition.

Mallett indicated that he remembered Strzesak from the earlier conversation. Mallett then picked the defendant out of a six-photo array and recounted that the defendant had approached him near his apartment wanting to buy a pack of cigarettes. After Mallett provided him with the cigarettes, the defendant began to walk away.

As Mallett began to turn around he was struck in the head with a fist. The defendant then tried to take his wallet and then pulled what appeared to be a black, 9–millimeter, semiautomatic pistol from his waistband and shot [M]allet in the back.

After Mallet gave his statement, Strzesak was concerned enough about Mallett's condition that he believed he needed to end the interview so Mallett could rest. Despite his concerns about Mallett's prognosis, Strzesak told Mallett he would return and speak to him again when he was feeling better.

Strzesak never spoke with Mallett again. Mallett died at Carle Hospital approximately 48 hours after making this third statement.”

¶ 9 Clifton argued that Mallet's first and second statements, namely, the statement he made to Butler at the crime scene and the statement he made to Strzesak as he was being wheeled into the operating room, were admissible as excited utterances and also as dying declarations. He argued that Mallet's third statement, namely, the statement he made to Strzesak after surgery, was admissible as a dying declaration. In addition, Clifton argued that all three statements were admissible under the exception for forfeiture by wrongdoing (the defendant's forfeiture of his or her right of confrontation, owing to wrongdoing by which the defendant intended to, and did, make the victim unavailable as a witness).

¶ 10 After taking a recess to review the authorities the State had submitted, the trial court ruled that...