*1 S. Illinois, Plaintiff-Appellee, State John Parisie, Defendant-Appellant. 11162;
(No. 26, 1972. Fourth District June *6 CRAVEN, concurring. J., specially Holmn, of Roger
E. of Defender Horsky, Project, Elgin, (Thomas *7 for counsel,) appellant. Hollis,
Richard State’s of for the Attorney, A. Springfield, People. the court: Mr. RICHARD MILLS the of delivered opinion JUSTICE “The but he of man is that he can conceive tragedy perfection cannot achieve his it. Man’s reach is always beyond grasp.”
—Reinhold Niebuhr that it trial has to be tried. And we venture to yet suggest The perfect a of himself— merely For of man is reflection will be. creation never as trial. there no such a Consequently, thing imperfection. perfect “cutting and for is a trial —the logically can strive reasonably All we fair criminal justice. our of edge” system to fair. not but it was admittedly this case was perfect, in The trial jury as is afforded the defendant safeguard and was right constitutional Every very 2,706 of the record before A brace us. pages reflected the obviously trial defense counsel labored court-appointed able and ingenious aget win before the trial judge, (2) effort to exhausting (1) in an long satisfy error sufficient favorable from the jury (3) preserve verdict we However, short, a and in court that a reversal must occur. reviewing in his pro- commit error hold reversible that the trial did not judge and proper cedural that trial was fair and its verdict rulings, jury the reversal. to dictate that whatever error in is insufficient exists this record balance, In justice was done. At about follows:
Briefly, the in this murder are prosecution facts see a custo- his 10:45 an a truck driver on April evening, way on tow City the mer road outside lonely found man alongside country to be taken man had and asked The said that he been shot Springfield. base immedi- to a to his station hospital. tow truck driver reported at about radio, his the and the State Police came to scene ately in the sitting 11:15 truck P.M. The State Boone found the tow Trooper recog- middle the road. He alongside road and man lying nized shirt the man as a and his local automobile dealer observed front was covered with who shot blood. Boone asked the man Trooper him he and said he his car was didn’t know. The also asked where Trooper said he he didn’t know. The wounded man taken to the hospital was and at 1:30 Boone approximately Trooper A.M. following morning had another conversation with the In room the emergency man. wounded man him, told him again that he did not know who shot he had met this fellow at 5th in Streets Springfield, Jefferson went for they a ride around the lake and that had parked. Another trooper, Dragoo, was first and testi- present at the conversation fied a conversation with wounded man similar to substantially one related by Boone. Trooper Following surgery, emergency wounded man died at 10:30 approximately morning. A.M. that
A sheriff testified that the deputy defendant was found in asleep car at 5:22 decedent’s A.M. the and that was morning same there blood seat, on the left front left door and he left rear fender of the car. When was had apprehended, defendant the decedent’s driver’s license wallet, credit cards in his own and he had lighter the victim’s cigarette (containing wallet checks and his papers decedent) pocket. jacket decedent’s sport was found folded on back of the car seat and in the pocket gold decedent’s ring. The defendant was wedding placed under arrest and remained in county jail until At the trial. trial, Parisie testified on his own behalf he de- and admitted that shot ceased. He also admitted that he had to kill the stolen the used pistol decedent during burglary days few earlier and that he had fired the pistol hotel room before shooting the decedent. Parisie *8 found guilty and was sentenced the court to a penitentiary term of 40 years. to 70 “homosexual based upon The defense was that insanity insanity — this fabric of throughout constant thread woven
panic.” single at- defendant and theory is the issue of appeal homosexuality this And since to insanity. “homosexual with tempting equate panic” consider it raised, will theory underlies some of the issues we specific at the outset.
The defendant had met the deceased on the stand testified that he sometime automobile before the date incident when he was in the night for a used that on the dealership looking car. He testified sports he decedent’s on 5th when Street walking Springfield car pulled him a He said next him and decedent offered lift. up that the a lake, decedent turned down drove out of Springfield, past gravel road and turning Defendant further that after parked. testified seat, off the and lights back the decedent made a homosexual sliding advance, smiled and said if the defendant refused he would have walk. Parisie re- testified that he went crazy,” vaguely “blew just up, membered struggling with the and a that he as- hearing decedent noise sumed to be gunshots. next being he remembered thing clearly in the deceased’s car in a lot and did not remem- Springfield he parking ber how he got there.
Defense, court, much both at the trial and in this has devoted stage of its that the failed to defendant’s energies impute prosecution prove reads beyond regard, reasonable doubt. In the Illinois law sanity thusly: 6-2. Insanity
Ҥ A (a) if at the time person criminally for conduct responsible conduct, of such as a result of mental defect, disease or mental he lacks substantial either to of his capacity appreciate conduct criminality or to conform his conduct to the requirements of law. The term mental
(b) disease or mental defect’ not include an do manifested abnormality only by criminal or otherwise anti- repeated social conduct.” Statutes,
Illinois Revised Chapter 38. overleaf, With this legislative we now look at and extensive voluminous and evidence both the given by prosecution the defense in this area. court notes at this that the trial (The point judge permitted very liberal extensive testimony by professional witnesses in this Defendant called a expert clinical area.) psy- chologist who testified' that Parisie was a highly delusional paranoid loner, schizophrenic, who was with a basic distrust of people, highly latent homosexual with strong feelings that a severe inferiority, stress situation of result in an any type could acute reaction schizophrenic who then called *9 psychiatrist amnesia. Defendant accompanying with fear reaction that is a severe or testified that “homosexual panic" panic trauma, and this often is extreme by anxiety psychological provoked amnesia, sets aside or takes a state of in which the person the form of mind cannot tolerate. that his conscious forgets unconsciously something a the entire back- covering He then given hypothetical question, and of defendant and the basic facts ground surrounding history defendant’s of the on The answered the case theory psychiatrist trial. by possible that it was that this hypothetical question testifying hypo- thetical individual suffered an state at the excitatory acute homosexual time he shot the then testified that it was psychiatrist possible victim. that a suffering from this of reaction —an acute person type “homosexual be panic” acting purely instinctively conceivably without —would Furthermore, of ability direct, self-control. allowed psychiatrist that “homosexual illness, is not is panic” per se an but a On symptom. examination, cross he stated that “homosexual is not panic” recognized illness, as a nomenclature, mental nor is it included in that it psychiatric a is not mental defect recognized by nomenclature and is psychiatric a merely of a symptom psychiatric disturbance. At culmination of testimony his defendant’s psychiatrist stated that the in the person hypo- thetical, who was a suffering from state of acute “homosexual panic,” at the time of the act in conform, question unable to and unable to control the given but that this impulse, would reason be of the by possibility might he have been undergoing “homosexual and would not panic” be reason by of his suffering from a mental disease. He was unable to render an whether opinion suffered a Parisie mental disease or defect which caused him to lack substantial to capacity appreciate the criminal- of his ity conduct. rebuttal,
In called a who prosecution psychiatrist testified that Parisie was a and not from psychopath suffering or in- schizophrenia He further testified that an schizophrenia. acute homosexual sipient panic disease, a mental defect or mental but is a is not disturbance. personal of the that this was He was not homosexual opinion since de- panic fendant was not a homosexual. He answered the hypothetical question by that the described therein had sufficient saying person to com- capacity his consequences the nature of acts and that he was not in- prehend from form of and not mental or mental suffering sane disease defect. stated that “homosexual also panic” recognized He either defect—it is a disease or personality mental disturbance. burden, course, the State to prove capacity
the defendant to commit offense And charged. presumption is always and mental sanity capacity present favor until the defen dant has presented presumption. sufficient evidence to overcome dis There can be that defendant from personality no suffered orders, and even all and psychiatric from of perhaps the psychological debilities testified to his his But none of it equated witnesses. expert defect,” mental or indi suffering either a “mental or mental disease cated either his conduct “capacity appreciate criminality or to conform his conduct of the law” was requirements impaired such, and the so found. The elongated extensive psychological as the results of psychiatric problems, psy as well chological tests and history all before the personal background, jury, were by virtue of the correct and a jury liberal the court. It was permission by On question. the state of the say evidence above recited we cannot at all that it was sufficient to establish a mental disease or defect within the meaning definition nor doubt as statutory to create reasonable sanity defendant. The defendant here jury’s finding that the was sane cannot be construed as *10 against the manifest of evi weight Gold, dence. 510, 702, 38 Ill.2d 232 N.E.2d 707.
We will now address ourselves to raised issues on specific appeal in the same order as presented. Change First: venue. Defendant that alleges he was denied right of fair when trial
to a trial court refused a of venue erroneously change the county. affidavit, defendant, from There was but one that of which in of his presented support motion. The court actually conducted hearings several this upon motion for change, venue after de- requesting counsel to furnish the fense court with of copies alleged prejudicial At coverage. news the first hearing, the defense introduced 40 separate exhibits, articles as news and at the second filed hearing 79 additional exhibits and news releases. The defense called four witnesses from the media to news as to testify the authentication of the exhibits. vast bulk of the exhibits to appear us to be no more than routine news items and It would coverage. appear from the record and of arguments defense counsel that are also of that mind since almost they rely exclusively one that upon coverage the coroner’s reported jury verdict that decedent died from wounds inflicted by .22 calibre bullets from a gun held by Parisie, and other news that reports Parisie was involved in a jail John break from county jail, the local when in fact such was false. report we would Parenthetically, out that point the content of both of these news items would only to the go question of guilt when Parisie —and later admitted guilt trial, such existed, if prejudice, But meaningless. even assuming that such reports were prejudicial defendant, were him of a they sufficiently degree to prevent from
1021 for motion a trial and should the Sangamon County fair in receiving change have been allowed?
This to day is no and of a half ride horseback longer age day world, and do but county vacuum, seat. not live in a in civilized We there no out hide from the and radio seek place to media. Television that It which bygone age was heretofore in a inaccessible. completely would seem of to call venire nigh day in impossible present coverage that of news prospective jurors would be free from “taint” Indeed, ain murder it is case. we to much suggest would venture more desirable have a who and cognizant venire of are aware people of that which exists in their than it is to have a society jurors panel with little their As was acquaintanceship with environment. noted Dowd, 717, Irvin v. 1639, 751, 6 366 U.S. L.Ed.2d S.Ct. 756: however, “It is not be required, totally jurors ignorant swift, facts and issues involved. In these and di- days widespread communication, verse methods an case important can be expected arouse the in the vicinity, interest public scarcely any qualified of those best will serve formed some jurors have or as to impression opinion the merits of the case. This is particularly true in criminal To hold that mere cases. existence of any precon- notion guilt accused, more, ceived as to the or innocence of an without is sufficient to rebut the aof presumption prospective juror’s imparti- would be to establish an ality impossible standard. It is sufficient if juror lay can aside his impression opinion render verdict based on the evidence presented court.” Illinois that an position accused is entitled ato change it
venue when there are reasonable appears grounds to believe that the actually exists prejudice alleged by reason of the prejudice there is reasonable that the apprehension accused cannot fair receive a Williams, trial. (People Ill.2d impartial 240 N.E.2d *11 of a for a granting The motion of 650.) change venue from the county of the of inhabitants grounds prejudice thereof rests in the dis sound of the trial But this cretion court. discretion may not be exercised arbi Allen, and is subject review in case trarily it is abused. v. 413 (People 69, 826, 107 N.E.2d And it 828.) Ill. has been held in Illinois repeatedly that of voir dire examination is prospective jurors most probably the of valuable means determining bias or the among venire partiality the or usual case typical where prejudicial pretrial is publicity alleged. Kurtz, 103, v. People 820; 37 Ill.2d 817, 224 N.E.2d Black, 130 People v. 996, 458, 266 N.E.2d Ill.App.2d 461. voir
The dire examination here was quite as extensive reflected 1022 were A total of 69 veniremen
from the 845 record before pages us. 28, the number, prosecu called and Of the excused examined. that court its of tion used 12 the defense exercised challenges and peremptory either read had total of 20. that selected statutory ultimately Those were court, or the heard of under extensive examination the case. But in the that would prosecution jurors and defense all of answered they trial, dulge in the throughout defendant’s of innocence presumption both give were could not knew of no open-minded, why they reason trial, sides of proof a fair would meet its burden the State to require had beyond doubt, a reasonable fair no opinion would be and impartial, as to of the same or of guilt defendant, innocence were frame their of mind if or children they juror that would want to be they either were on trial. from showing There no whatever in appeal, let record, the briefs or had jurors any impression, that of these no founda certainly of And guilt alone as to Parisie. there opinion, against that the allege pretrial publicity prejudiced jury tion to seven months after A motion for of venue came change defendant. crime, had motion reassigned (upon months after the case been three trial and two months before the case defendant) judge of to the. time tried. has been held that a sufficient between lapse It actually dis may having and the trial itself be considered accounts news or imagined. People of whether real sipated any feeling prejudice, 591, 226 N.E.2d Berry, 37 Ill.2d 593. factors, of these us cannot
Predicated all the record before upon of change utterly error in denial of There is substantiate venue. motive, of no the trial acted out bad showing judge whim try abuse of his discretion. believe that the selected to We finally Parisie a fair trier of the facts. fact represented Mr. impartial did not exhaust his suggest that defendant would challenges peremptory Black, like that defense counsel were of supra, opinion. N.E.2d 461. Parisie next contends the trial court dire. Mr. Voir
Second: voir by refusing defense counsel’s dire examination restricted improperly homosexuality. of About two months before subject on the to inquire of family presented the victim attorney representing trial a private the defendant from seeking enjoin making any motion limine decedent as a homosexual show without first characterization adverse the issue and its counsel con admissibility. Defense ing materiality the materiality show necessary relevancy that it was ceded “would be to do homosexuality, delighted” so but “out course, trial Attorney.” judge, of the State’s refused the presence from defense without the arguments presence one-sided to hear any *12 appear would so, justice since even-handed rightly the prosecution —and adversary practice. by law our substantive to dictate that we still apply ain hearing in camera ex parte an To force trial to conduct judge biased one with but decision a fair criminal and to make prosecution any shoulders upon intolerable yoke before him an position places subject said on be ruled, will “Nothing The court then magistrate. defendant and the decedent matter of involving homosexuality itof mention any to make counsel for both are instructed not parties is shown." or in trial until public admissibility follow itself asked the court of voir dire the first day During homosexuality. in this case some evidence may “There be ing question: during comes up name show whose any should person If the evidence would homosexuality, in acts trial of this case involved (Parenthetically, for person?” fact alone create prejudice sympathy day the first that no were accepted it is from the record jurors noted selection, the day juror of the second beginning of voir At the dire.) “Because of jury: court ruled as follows out presence to the court why or refusal of defense counsel to explain failure not permit the court will should ask questions regarding homosexuality, that the defendant in this area until it is shown questions further any argu further Thereafter, made no will be defense counsel prejudiced.” into the realm of homo ment voir dire excursion justify whatever there made no to offer and the matter sexuality, proposal proof to the On the third of voir dire the defense dropped. day presented court an affidavit of one of defendant’s he stated lawyers wherein that three who were incarcerated in a Tennessee persons presently (one State jail, another in an Illinois and a third at the Illinois penitentiary if had each, called to state that Farm), testify, respectively, would decedent, homosexual relations with knew decedent’s reputation homosexual, the community was that of a and that decedent had been in a observed “known homosexual with another hands hangout” holding alleged male affidavit was defense counsel and person. signed by that it was based interviews conducted an upon investigator. (The arises, course, not the why affidavit natural witnesses rather than defendant’s lawyer?) executed prospective furnished, this third-hand affidavit was time that the defense At the a reconsideration for of the matter of posing questions asked the court said, homosexuality veniremen. To this the court “I concerning * * it is shown be material or admissible yet don’t think *. You admissibility show the of the evidence on the have to about subject ask are Defense going jury.” counsel “We you rejoined, which this is The court requirement.” again feel denied the request the subject of at the re- homosexuality was not mentioned all during mainder of voir It is that the court dire. patently apparent properly placed moving the burden of ma- party showing relevancy, teriality admissibility utterly of such evidence. The defense and/or failed to sustain its burden and our view ruled proper the court to *13 under correctly the circumstances and limited voir dire on the properly this subject. us
For to hold that defendant was entitled to examine pro spective jurors on he felt any subject without the pertinent explaining relevancy the trial court defies logic and unbridled and un permits limited safaris into endeavor, area nearly human of its regardless of utter irrelevancy issues tried. being This is not the law in Illinois. The basic rule is as old as our of and extent system justice: scope of voir dire examination rests within the sound discretion of the trial court, and is subject reasonable limitations the imposed presiding judge. Were this so, an not would be eternity in certain cases required to obtain an impartial Lobb, of jury twelve case peers. People of 287, 17 Ill.2d N.E.2d a very contains excellent discussion of the history of voir purpose dire examination and concludes that “There is in nothing the constitutional guarantee right the to a trial which by jury prevents regulation reasonable of the manner in which jurors shall be selected.” And 333) N.E.2d that reasonable (161 regula tion is manifested in Rule Court to that Supreme pursuant court’s to make rules power governing the in trial Illinois courts. practice Defendant further the of error in voir argues efficacy the restricted dire the on basis that he learned that one of the members of the im- jury had a paneled homosexual relative. This matter was brought court’s attention after the rested immediately their Defense People case. dire, counsel renewed his earlier motion for mistrial presented voir during and said to the court: “Since the time that the has been impaneled, I have learned through sources unimpeachable that one of the jurors, * * * fact has homosexual relative our failure to discover this at the time of we feel has us examining jurors, in the prejudiced trial of this to such case an extent as to require that the court declare asked, mistrial.” The court then further?” To which de- “Anything fense counsel “That’s all.” replied: the court overruled the Whereupon motion.
What strikes immediately us is the peculiar timing renewal motion, being after the immediately have rested their case. Defense counsel apparently knew his so-called “unimpeachable sources” for some period of time without it bringing to the attention He did anyone. not his identify sources” for his in- "unimpeachable formation, request he did he did not subject identify juror, as to substitution of any proof one of the alternate nor offer jurors, truth of the allegation the defendant and no as to how showing prejudiced if relative. even the unidentified a homosexual did have juror It wasn’t until a presented motion for new trial was filed that counsel an affidavit and then brother, concerning juror with a homosexual it was an affidavit information “on signed by attorneys both defense trial and belief”, and not their identifying juror. argument In trial, motion for new defense counsel stated that learned they juror’s after relationship was before panel was 'Whether it picked. the jury was afterwards, completely They I can’t remember.” picked did acknowledge that they knew of the brother and homosexual reputation, but that did not they know the nor the relationship. juror us,
From our examination of the voir dire record before it that the trial apparent judge granted wide in the questions latitude very that defense counsel were to ask. It seems rather obvious permitted if defense counsel had inquired more into the specifically background juror family question, would to ascer have been able tain the But be that as it relationship. defense knew of may, counsel error alleged from the time of voir dire all the way through *14 prosecution’s chief, case in and there was never as to any offer of proof of identity juror, brother, the juror’s the source of information nor any reasonable explanation why the defense days waited full five trial to this bring to the court’s really attention. Had defense been serious about this alleged tainted juror, it had than ample more time and opportunity to bring the matter and to the openly candidly court’s attention and request substitution of an juror. alternate defense, cases cited by Lobb, other than People supra, are not in and do not point concern the issue here have posed. We examined great length at the 713 of voir dire pages examination before us and we can only that conclude its conduct the trial by was in judge full accord with provisions Court Supreme Rule 234 and the case law of this Wide State. extent scope, and latitude of voir dire was granted to defendant and opportunity to examine all reasonable and pertinent areas was afforded. We hold that there was no to defendant prejudice in the conduct of this extensive voir dire examination.
Third: Hearsay. Defendant next that alleges prejudicial hearsay state- ments of the deceased were permitted. improperly Objection was made to the testimony of Trooper Boone who related what the decedent had told him. The court heard Boone’s testimony and evidence in camera and the testimony as substantially follows: the report from the tow truck driver was received by Illinois State Police base station at
1026 P.M.; decedent was P.M., at 11:15
11:08 and Boone arrived Trooper blood; Boone road, with Trooper his shirt covered lying alongside five or six decedent man, he had known for recognized years; whom he had and told Boone that Boone questions Trooper to the responded him, shot, that the man out pulled that he didn’t know who shot been wallet, did not know where his his and that he gun and asked him for and car between Boone Trooper was. Another took place conversation at the where he told again decedent about hours later hospital two him, shot that he had met Boone that he did not know who Trooper this at 5th went for they fellow and Streets Springfield, Jefferson lake, ride around and had not they parked. Trooper Dragoo gave as Boone. Defense objected the same substantially testimony the basis of as to that objection and the trial court allowed the hearsay part of the where decedent said that his attacker pulled conversations wallet; out a his the court all of the rest gun permitted asked for testimony Dragoo. Boone Troopers Parisie contends that the related conversations with decedent were prejudicial defendant’s because were contradicted own testimony in three essential said he did decedent not know who respects: (1) him; shot defendant said he had been into decedent’s business place few decedent; weeks earlier and was known decedent said he (2) Streets; picked attacker at 5th and up defendant said the Jefferson Street, occurred on 5th meeting about two blocks north of North Grand Avenue; car; decedent said he had not (3) parked defendant testified he did the car. defendant park Consequently, argues this was prejudicial was not as that it admissible falling within the res gestae exception to the rule contended prosecution.
Both Poland, sides to cite appeal Ill.2d N.E.2d and we from that decision: quote now “We to be served in dealing see no useful with the purpose problem the term res That has using gestae.’ amorphous been concept situations, to a multitude of applied some of indiscriminately which all, others hearsay contain no element of at while involve true excep- tions As to the here, situation hearsay applied rule. involved we think res fails to gestae’ only that the term contribute an *15 but inhibit actually of the understanding problem may any reasonable therefore, use less analysis. We to confusing prefer, terminology discussing problem. rule, recognized exception as a to the hearsay
There has emerged, conditions, that, certain what have been under principle variously declarations’ or ‘excited as characterized utterances’ are ‘spontaneous to the rule. hearsay an exception as properly Perhaps admissible that of is exception underlying classic statement of the reason ed., 1747): sec. Evidence, 3d Wigmore (6 Wigmore, that, cer- under the experience ‘This is based general principle excite- shock, of nervous a stress tain external circumstances of physical removes and faculties the reflective which stills ment bemay produced is a spontaneous occurs control, then their so that the utterance which already and perceptions and sincere to the actual sensations response under is made this utterance produced the external Since by shock. senses, and during of the immediate and uncontrolled domination not have could the brief when considerations of self-interest period reflection, may the utterance fully been to reasoned brought by bear least, usual be as lacking taken as at particularly trustworthy (or, tenor the real grounds and thus as untrustworthiness), expressing him; may and belief as to facts observed speaker’s just by therefore be received as as to those facts.’
The rule Court of Cali- has been stated by Supreme succinctly fornia: When a influence of declaration is made under the immediate negative occurrence to which it and so near in time to relates Sho- fabrication, probability said declaration is admissible.’ walter v. Western P.2d Co., 460, 106 Railroad 16 Cal.2d Pacific 899. a Three factors are to statement within this necessary bring exception rale: an sufficiently startling occurrence hearsay (1) pro- statement; a duce spontaneous absence of time unreflecting (2) fabricate; (3) statement must relate to the circumstances Evidence, 1950; (6 the occurrence. 3rd Wigmore, Cleary, ed. sec. Evidence, Handbook of Illinois 13.28.)” sec. Damen, 25, 29,
And in People v. 28 Ill.2d 193 N.E.2d we find this well-reasoned for this explanation hearsay pertinent exception rule: exclamation be may defined as statement or ex-
“A spontaneous made after some occasion immediately exciting clamation par- asserting circumstances of that occasion spectator ticipant him. The of such admissibility as it observed exclamation that, on our under certain based external circumstances experience shock, or mental stress of nervous excitement be physical may a which stills the spectator reflective faculties and re- produced control, their so that moves the utterance which then occurs is and sincere to the actual sensations spontaneous response and per- already the external ceptions produced by shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, reflection, than rather reason and during brief period *16 when consideration of self-interest fully brought could not have been bear, to the utterance as real belief of may be taken expressing as speaker to the facts observed him.” just by After citing Poland, that, Damen continues “If statement by holding is a admissible, true spontaneous exclamation, declaration or for it said, testimonial in aU purposes, the truth what was prove types action and not just in or related rape Page cases.” 30. course,
Spontaneity, of under a relative term will vary each set of circumstances, case case. There hard and fast by can be no area, rule in this and no of time can be established. precise yardstick Defendant Jackson, cites case 9 Ill.2d 138 N.E.2d 528, 531, “Here, where the said, court there was a of at least delay hour, an and we have found no case in which statements made after such a lapse of time held have been admissible as a of the res part gestae,” and urge that this alone determines that the conver repeated sations or statements of the decedent were But to our inadmissible. view, it is not as as controls, that. It is time simple not the element that but the or existence lack of in the spontaneity light surrounding circumstances that is determinative. We from Criminal quote Wharton’s Evidence, Edition, 12th Sections (Hearsay Evidence) 281: Spontaneous 280. utterances.
Ҥ When the res gestae utterances, rule is it is applied spontaneous essential that the declaration be with the event. contemporaneous This is not a requirement of literal but contemporaneity, merely the declaration be so with the contemporaneous event that the declara- tion can be regarded as inspired event conscious by deliberation of the courts, declarant. As stated by some of the there must be such a spontaneity that the declaration can be as regarded the event through the declarant speaking rather than the declarant for himself. If speaking the court concludes that the declarant was occurred, what merely narrating had the declaration is inadmissible. The fact that the narration the witness is cannot, prohibited how- ever, be as the regarded exclusive test. A narration is as admissible long as the circumstances are such that the declarant was still under Thus, influence of the shock of the statements event. made by the victim of a crime to the first the victim meets after person crime, commission of the in which the victim what explains hap- pened gestae are admissible as res although narration. obviously Statements made response questions are admissible as res gestae if person answering under the influence of the shock of the the time. at crime are res rule gestae under which qualify utterances
Spontaneous statements are admissible to whether they without regard defendant, victim, third persons. or
[*] * * either be gestae may as res admitted spontaneous utterance fact, such sound, shout, statement such an actual as a or or cry shot me/ ‘John event; 281. Relation to time and distance. § may gestae of the res The acts and declarations claimed to be part relate. to which follow the transaction precede, accompany, *17 it is the transaction But or follow when only they precede, accompany, be it, so as to that can be in it and emanate from wrought up hearsay. rightfully rule which excludes regarded as from the excepted The time and the distance which event, which has since the elapsed making the declarant has the crime before traveled from the scene of declaration, is in whether his declaration material determining nor possesses mere necessary but neither distance spontaneity, time are in must themselves The court determine whether controlling. under all the surrounding cicumstances reasonable to believe it is the declarant acted without there existed thought, whether possibility that the has declarant deliberated made a false state- ment. If the court is convinced that the from the springs declaration event and calculation, not from statement admissible under res gestae exception.” Jackson, hard core and rather stratified in People v. approach
supra, considerably by the Court’s qualified tempered Supreme Poland, in v. opinion supra. Yet it is still difficult to explain dogmatic rather statement in had case that the court “found no Jackson which statements after in made such of time have (one lapse hour) held been admissible as a of res gestae.” the court referred part Perhaps cases, to Illinois since at the time of purely in 1956 opinion Jackson there existed several Federal and other cases res State the permitted hours, statements made gestae horns, two three hours eleven and fourteen after the subject hours occurrences. v. Accident Ins. Co. (Standard 648; 141 Heatfield, Co., Fed.2d v. Wetherhee Safety Casualty 219 Fed.2d 274; States, 19; Guthrie United 207 Fed.2d v. Stafford, State la. 237 780, 23 N.W.2d Each of 832.) these cases adhered to the expression that, voiced in Wetherhee “The modern is to tendency the cases extend, limit, not of the res rule.” application gestae (219 Fed.2d And the 278.) Iowa of State v. Stafford, supra, case which permitted statement, fourteen hour lapse this matter in fairly places perspective * ® “* it when out points time element of being importance 1030 888 as on the elements to
merely bearing spontaneity 888 be taken into consideration has time which elapsed; time; stated; length whether the time is or is not the place definitely statement; declarant; of the act or the condition of the influence of occurrences; and intervening the nature and circumstances of the state ment but the real test not whether the declarations are of fact point but exclude contemporaneous, whether the circumstances 8 8 premeditation and design 8. The facts and of no circumstances two alike, cases can be and the precisely exact of time is length mathematically 23 N.W.2d controlling.” 835-836.
But of strildng to the case on similarity Lampe review is United States (D.C. Cir. 1956), There, Fed.2d suffered 43. the victim a vicious attack two men in which he insensibility. was beaten into “Shortly after regained consciousness,” he he was found two police officers in dazed condition, breathing difficulty, with beaten badly although incoherent, speech it was understandable. partly officers police asked him what had me he said “Get happened 8 8 8 to a hospital I men,” have been beaten two up by naming them. That was the first statement. About minutes later at the forty police station the victim made a second statement wherein he said that both of the men had taken part the beating. six Approximately hours later in the hospital the gave victim third statement ato police officer relative to the beating. Were Quaere: these statements erroneously evidence, received in and, so, if were they prejudicial?
The first statement was held there, here, admissible. The evidence *18 did not demonstrate or reflect the of time period between the alleged act and the police finding victim, the victim and talking to him. died, who later was from suffering numerous and severe external and wounds, internal and was blocks several from the away site of the beating. His statements to the police officer were also conducted the question and answer method. second statement was made some minutes after the forty first “8 8 8 that
and the court stated we should be inclined to hold that it also was received as a properly spontaneous declaration were it neces its to There had been sary pass upon admissibility. no for opportunity had had no medical reflection. LaMar attention and must have been his wounds suffering grievous from even more than he first when talked But, if the to the even second statement was police. not spontaneous, ad of it was concerning mission not testimony error prejudicial since it added to the admissible earlier nothing statement.” (Pages 45-46.)
Now for the third statement some five and a half—six hours after the second: Unquestionably hearsay, lacking any to spontaneity it qualify sev- for in the hospital medical care for He had been under admission. later statement this “say eral court that it could not hours and the found “whether then was But the was uninfluenced reflection.” statement was third inadmissible undoubtedly admission of added statement that the last The court concluded prejudicial Lampe.” to had con- Lampe the first or the second. either nothing significance fessed “The appellant to his in the and the said that beating court part can he was of bit say admission hardly prejudiced by Page admitted.” freely which tended to confirm he himself merely what 46.
Indeed, has recognized since the turn of the Illinois century, mandatory res it not to be considered of the part gestae that in order occur must be concurrent with the primary that precisely declarations time, so near as as are made at a time it they rence long in point fabrication. thought of deliberate or calculated preclude design no 192 Ill. In the case us one knows People, 189.) before (Davids the lake and the time elapsed how much time between the at shooting had his Boone first conversation with decedent. But Trooper reflect record does circumstances incident: surrounding blood; lying alongside victim the road with his with he was shirt covered aid; been shot knew he had and asked for he was suffering medical death; bullet wounds which his was eventually from three led to he a state of dazed and in Although shock. the time between lapse and the confrontation with shooting Trooper may Boone indeed have less, one been more than hour for (or all we we believe know), here circumstances surrounding demonstate that neither oppor nor the tunity fabrication, probability design calculation or deliberate were available decedent in We conclude that physical state. were sufficiently part of res as to within gestae come the exception rule. hearsay conversation, for the second which in the
Now hospital room, after some hours the first conversation two with emergency Here, we are such Troopers Dragoo. persuaded Boone a lapse nearly determinative that this second so very time conversation is occurrence, i.e., far from the that it removed cannot be shooting, of the gestae. considered as res it does not part Consequently, fall within and the hearsay rule exclusionary required that it exception inadmissible, be admitted in But it although evidence. hearsay was the content inadmissible evidence and mag such hearsay *19 nitude require as to reversal? We think not.
Defendant claims that the decedent’s statements that didn’t (1) he him, know shot he who assailant at 5th and (2) picked up Jefferson 1032 car,
Streets, “directly contrary he did the were all (3) not park correct, the it was defendant’s This is since testimony.” specifically not the in defendant who the of decedent adduced contradicted statements the in prosecution’s case chief. Defendant points primarily Jackson, supra, we find from the one distinguishable but that case easily case, before us. of it quick reading Without into the facts that going in will demonstrate that: the their prejudicial statements were hearsay face; the statements revealed about defendant information the damaging trial; that was uncorroborated evidence in the completely other highly inflammatory victim after were dis- photographs autopsy played to at a when fixed jury; case was tried time the jury case, determined penalty well as In this question guilt. statements face, were not on their defendant admitted that prejudicial he victim, shot the there was corroboration of the issues in the primary proof, there were no inflammatory in this involved photographs prosecu- tion and the no jury faced longer was with duty fixing penalty punishment.
The case of People Wright, 212 N.E.2d is also Ill.App.2d relied defendant. But this case is from the upon by again, distinguished There, one before us. “The sole involving evidence defendant crime was witness. The effect such complaining additional give statements was to that impression against evidence defendant was corroborated.” That case (Page 128.) appears to us to be in view of the totally inapplicable fact de fendant admitted shooting the decedent.
As to decedent’s statement who (1) he didn’t know shot him, of a exactly this similar statement at repeat the first conver Therefore, sation which we have held is admissible. it merely cumulative proof and therefore As to his statement that he (2) harmless. picked 5th Streets, the defendant at up whereas the defendant says Jefferson Street, two blocks north North Grand Avenue on 5th this on the same street but at a different intersection. We cannot this is say that at such on a variance visceral issue that reversible This prejudice occurred. too was And although harmless. decedent said had (3) he did, parked, and defendant said he it seems rather mundane that a person who removes himself from behind the wheel of a car that is he driving, shot, after having road, been and wanders on cannot accomplish without the car having or been “stopped” “parked”. Whether it merely a semantical or a difference definition, interpretation it had no bearing upon touchstone issue the trial.
It error for the trial admit court to into evidence the second conversation between the State and the Troopers decedent at *20 state- None of the not, view, error. But it to our hospital. was reversible shooting ments were directed on their nor were prejudicial face best, one question the At decedent—this was admitted the defendant. by cumulative, circumstances under the they were all harmless this case. Defendant
One additional we leave this issue. minor before point also manner made. That of the the statements were complains in which is, the answer State would and the decedent would ask a Trooper Defendant question- it. claims that the destroyed spontaneity and-answer which However, authority method. that line of we hold with has ruled “The Damen, held that otherwise. In the court supra, believe, fact is, that the officer asked we what complainant happened’ insufficient to its the facts before destroy And spontaneity.” (Page 30.) us Wharton, would indicate in certainly statement following supra, is also applicable: made to are questions “Statements in response admissible as res gestae if the the influence was under person answering of the shock of the crime at the time.” 633. Page
Fourth: Homosexuality. the trial Specifically, defendant charges court refused to improperly admit defendant’s evidence that proffered the victim had a known, homo- reputation community overt short, sexual. In two must questions be asked: were the form substance of the tendered short, evidence the answer to proper? Equally both is no.
Defendant offered three de witnesses to relative to testify cedent’s homosexual All three witnesses called to the reputation. were stand, addresses, their names and their gave and then objection by prosecution their further offer The only sustained. made defense counsel as proof to what would to came they testify from defense counsel In witness, themselves. the case of the first defense counsel stated merely in chambers that the testify first witness would to three acts of specific with the homosexuality deceased decedent’s reputation was that community of homosexual. There witnesses, was not even that much offer of on the other proof two since counsel stated that simply as offer of adopted the affidavit proof previously filed. When we turn to that affidavit we find that it is one executed by counsel, one of defense containing mere recitation that the two witnesses had seen decedent in known homosexual locations. “offer of all proof’ regarding three of these witnesses is inade patently quate. They amount more than nothing conclusionary, broad-sweeping statements of defense counsel and offer no acceptable foundation for court, admission as reputation evidence. “This occasions, numerous has held that witnesses reputation must be shown to have adequate 1034 of the
knowledge about person queried and that reputation, evidence admissible, to be must be based neighbors contact upon subject’s with and associates rather than of the witness.” personal opinion Moretti, (People Ill.2d Obviously, 129 N.E.2d 725.) form in which this offer of comes us is insufficient to accommo proof date the well settled state of the law in this area.
Yet, that the assuming manner in which were the issue presented satisfactory, substance, what i.e., of the decedent’s as homo- reputation sexual? How is it germane to the defense in this In his opening case? statement, defense counsel stated:
“Ladies client, Parisie, gentlemen our Jury, John old year boy table, that sits here at you has authorized us to tell that his hand of the pulled trigger that killed gun (decedent) * * * * * * when Parisie pulled gun the trigger John * * * *21 that killed (decedent) did a homo he so while repulsing * **." sexual attack tried,
The case was on the sole appeal grounded, Yet, of insanity. although, defense there was that ample expert testimony homosexual, Parisie was a latent as our Court Supreme has opined * * “* in that condition has no been with way equated in the law Jones, 113, or v. insanity incompetency.” (People Ill.2d 251 N.E.2d Jones, 195, People 739, see also 6 Ill.2d 128 N.E.2d 740-741.) Nor does the homosexual alleged advance in and of itself have bear any Herron, a claim of ing whatever self-defense. (People v. 125 Ill. 18, 260 N.E.2d The cases App.2d 428.) cited defendant to by support his evidence position reputation should have been are admitted not in involved murder Two cases in which point. the defense was self- defense evidence of reputation decedent’s violent disposition excluded. Another was a improperly case rape where the defense was consent and the court excluded reputation evidence as to the chastity witness. We no prosecuting have quarrel whatever with of these any cases cited by defendant because state most the law. correctly A murder quarrelsome victim’s reputation indeed material when the self-defense, defense is and the chastity reputation prosecuting in a witness case is indeed rape material the defense is when consent. But we are aware of no authority whatever which even hints that a for of a reputation homosexuality murder victim is a material issue when the sole is that Allen, defense In insanity. 280, 284, 50 Ill.2d 762, 765, that, 278 N.E.2d the court said “Before defendant may introduce concerning evidence the violent character of victim, some founda tion must be first laid by introduction of evidence of self-defense.” It to us that the appears identical holds reasoning true as to any type materiality The prosecution. in criminal evidence reputation it before shown must be raised the defense evidence to reputation rele either here is evidence reputation is admissible. How the proffered us. escapes issue of insanity to the defense germane vant erred court that the alleges Fifth: Defendant impeachment. Collateral by defendant collaterally impeach in permitting prosecutor application. an employment had showing filling Parisie lied out a had a with examination, job that he defendant testified On direct a for he there week. studio in and that worked photographic Springfield of em- of his termination When asked counsel what the cause about was, “They my application Parisie found out ployment replied, examination, the prose- wife On cross my divorce—between and I.” at cutor asked an for employment defendant if he made out application studio, affirmative. to which Parisie answered in the photographic a identify then Parisie document prosecutor proceeded have of that as to certain copy inquired for application employment information contained therein. cross examination revealed that Pari- had sie on the of the Amvets put he was member application (which he admitted he and that he had worked for certain not), for employer eleven months he worked for three only maybe (whereas months). find no merit in here
We defendant’s contention. The subject was broached defendant himself his own direct examina testimony tion and cross examination was more than prosecution’s nothing fair and honest elaboration of the details for the purpose impeach ment. cross examination did not violate the limits of the direct People’s it was patently relevant of the defendant’s —and is, indeed, believability veracity. Cross examination time proper a defendant when be asked about details which would throw may light *22 to on the facts which he testified in his examination in the chief. Once case, accused takes the stand in his own a behalf in criminal he tenders both his and character as a direct issue and his reputation credi subjects to a bility legitimate and by examination the same tests as pertinent Miller, 84, to other applied any (People witness. v. 13 Ill.2d 148 N.E.2d 455, 468; Provo, 63, 802, v. People 409 Ill. 97 N.E.2d Somewhat 805.) Bernette, People 227, similar on the before us 45 Ill.2d point 258 800-801, 793, N.E.2d where the cross examined a prosecution defendant in a murder trial false that he regarding statements had made in his to inconsistent application employment for relative statements that he had never been convicted of a The court crime. held that the prosecu * * * tion’s the defendant’s right to question veracity by this means cannot be disputed.”
Furthermore, this to refer to the had every right prosecutor liar”, having matter in final as “a argument where he Parisie characterized “lied belonged as his he to and as “the employment”, organizations to.” Such unques was interpretation by the evidence the prosecutor the within his from tionably under state of the prerogative testimony the defendant himself. a state’s rebuttal
Sixth: that when Polygraph test. Defendant contends test, witness, had he, polygraph the taken witness testified testified, the state called error was committed. After Parisie prejudicial his, resided Watson, a friend of Bill defendant had while with whom the in the com- Watson that defendant’s Springfield. reputation testified not for truth and and that he would believe munity veracity was bad defense, the it defendant under oath. On cross examination by established that Watson in connection himself had been investigated with case and that had with of the state’s he members spoken Thereafter, ex- attorney’s staff a number of on redirect occasions. amination took prosecutor, following place: colloquy Watson, “Q. Mr. during you talking time that were State’s Attorney’s case, Office with take any reference to this did tests? you
A. One—for the State’s Office? Attorney’s Q. Yes.
A. I took test. polygraph
Q. Do know you what the test results of were?” polygraph answer, Defense counsel immediately moved to strike the question and also moved for a but strike, mistrial. The court granted motion to refused to declare a mistrial.
There no but that of a both giving polygraph examination, test, results well as the of such are inadmissible defendant, evidence as either the guilt or innocence proof except by stipulation. case law is in accord. unquestionably (People Nicholls, 533, 822; 818, Zazzetta, 44 Ill.2d 256 N.E.2d Ill.2d People v. 189 N.E.2d But the facts in us 263.) issue here do not bring within the gamut general taking rule. The regarding test was with not polygraph purely reference to the witness and It did material go issue as to defendant’s defendant. guilt innocence of the offense murder. The net argue that the effect of defense counsel’s cross examination of insinuate Watson that he was testifying since against friend he had been implicated himself in the crime and that in he testifying avoiding case was further involvement with On authorities. posture direct and cross Watson, examination of we this as accept arguable an position. ® 39,40 Be that as it no may, us, has been cited to nor are authority
1037 he has sub a that witness we aware any, that holding testimony by that reversible the defendant a mitted to test so to prejudicial is polygraph has held Court Indeed, error Supreme has committed. the Illinois been test, taken having polygraph concerning evidence defendant’s not re inadmissible, certainly minor, even harmless was though 801; 793, Bernette, 227, 258 N.E.2d versible v. 45 Ill.2d (People error. Flowers, 406, 838, 843; Melquist, v. People People 152 v. 14 Ill.2d N.E.2d the 22, 825, Here, objection 26 court sustained Ill.2d N.E.2d 829.) 185 test, to was he had taken polygraph (there witness’s answer that no answer and the court instructed as to what the the test were) results that the error to We of the disregard testimony. opinion are here, to prejudice is harmless and not of sufficient any, certainly most if to defendant be reversible.
Seventh: Widow’s claims he denied a fair testimony. Defendant was trial when the victim’s was to that the decedent testify widow permitted left three children. witness by The widow was the last called the State its chief, case in very last was asked before question she cross was, this, examination “How she you children do have?” To many answered answer, “Three.” no There was to the or objection question there was no cross examination by defense counsel on this We subject. have read in toto the final and defense arguments both prosecution and find at no point therein reference any whatever to the re- garding the children.
That and the were error unquestioned. answer Bernette, The defendant by (People 359, cases cited v. 30 Ill.2d 197 436; Dukes, 334, 14; N.E.2d v. 12 People Il1.2d N.E.2d u. Filippo 146 224 state People, 212) correctly the Illinois rule: that a mur Ill. evidence widow, der left children family victim or since inadmissible such has no evidence either the relationship guilt innocence of the de fendant, usually serves only create him prejudice against in the rule, This is eyes jury. and with it we do not But quarrel. there is more to it than that. The mere mention family victim’s (and that is utterly all was said is not here) automatically reversible since under the facts in a situation the given statement can be completely Golson, v. 398, harmless. 32 Ill.2d People 68, 74-75; 207 N.E.2d v. People Brown, 297, 664, 667; Holland, 30 Ill.2d 196 N.E.2d 75 Ill.App. 460, 639, 640; 2d 220 N.E.2d People Vasquez, 254 Ill.App.2d N.E.2d 621. single question and answer single before us were not ex
panded beyond record here quoted. There was no cross examination and there was absolutely no reference whatever of counsel to was, subject view, again. It to our isolated, inadvertent, unplanned and It was not a careless It never referred to. tongue. again slip was ma that it as to believe presented any manner cause the jury terial, ages it references accompanied sympathetic children, argument final playing there was no inflammatory *24 abandoned for the was and the sympathy orphaned subject offspring, Jordan, Error, 38 Ill.2d immediately. People to be harmless. sure—but 161,166. 230 N.E.2d the Parisie contends Finally, clothes. bloody Victims Eighth: the of the clothes of decedent before bloody sudden prosecutor’s display again and in examination of the defendant during both his cross jury, denial trial to Parisie. and a of fair final was argument, prejudicial he had is that Parisie admitted that Defense counsel’s since position decedent, evidence of clothes bloody killed the admission into the the the of Defense counsel passions jury.” “would serve to inflame only so that the exhibited the allege prosecution on far as to appeal goes in “to emotions of un- clothes front of the in order evoke bloody the cynical from the and that “its thinking revenge jury” only purpose of emotions We one the basic of retribution.” playing jury’s upon argument find both the and the to be baseless and characterizations merit. without case, shorts, the State’s the clothes of victim the
During bloody (shirts, socks, trousers, in a box and identified and shoes) were contained were an room nurse who cut emergency state most trooper, testified victim, an of off of the the who clothing physician autopsy the performed decedent, state laboratory the and two crime technicians who ex- all The articles were left in the box while of these clothing. amined the testified and none of the articles were witnesses removed prosecution However, in defendant from the box the when took presence jury. examined, stand and was cross the removed being some prosecutor box and them to of the articles from the exhibited the defendant and to Earlier, without the defense. the time objection at jury, was prosecutor presenting clothes for identification in case in chief, defense to the line objected of and the clothes. questioning then, now, and argued argues that the prosecution clothing was very crime, evidence of part had properly value re- probative the circumstances garding shooting and the issue surrounding was, is, of the defendant. It that the believability arguable clothing, holes, with the blood and the bullet showed of bullet holes in lineup body, deal, tire revealed that the victim bled a great reflected he clothed, fully is relevant to evidence of other the amount lo- of blood in cation the automobile and has a certainly bearing de- fendant’s version how occurred. shooting Janko, 783, 785, a murder 102 N.E.2d involved Ill. capacity a defendant whose mental confession and prosecution, evidence into in In that case the trial court placed permitted issue. showing taken of the deceased at photographs girl’s body hospital wounds, Illinois Supreme them to be shown to the jury. permitted affirmed, Court saying: wounds, death,
“The fact and cause of the number and location of the inflicted, the manner in which and the were willfulness they * * acts in are all material to °. Evi- charged the offense dence a natural having tendency controversy to establish the facts should be A party admitted. cannot have evidence excluded competent merely it because arose horror and might feelings of indignation the jury. Any the details of murder or other concerning violent tendencies, crime may have such but this could manifestly not suffice course, to render it Of incompetent. where ex- spectacular hibits having little probative value are offered for the principal pur- arousing emotions should be pose prejudicial ex- promptly offered, cluded. But to the character of questions relating the evidence and the manner and extent its are within presentation, largely *25 discretion of the trial judge, the exercise of that discretion will not be interfered with unless there has been an abuse to the preju- dice of defendant. Such is not the case here.” 785. p. in opinion clearly view, reflects the and ac majority Jenko
cord therewith was again Ciucci, 619, asserted in 8 Ill.2d 137 40, 44, N.E.2d where the court held that it was no abuse of discretion for the trial judge to admit as exhibits certain bloodstained bedclothing. “The rule is whatever tends to is general any material fact prove * * There relevant *. was no error in competent admitting in nor did the court in question, evidence err to take permitting jury exhibits to the room. jury Whether exhibits bear particular directly room, and hence taken charge, may be is a matter in the sound largely discretion of the trial resting judge.” (Page 44) all the final Furthermore, have read and are arguments we of the comments prosecutor’s regarding distinct opinion clothing, that he the evidence placed upon and the ad interpretation properly mitted, within No was well bounds. error. proper circle,
Hence, full It beginning. we come back to was not a perfect trial —but was a And that all that man’s can bestow. it law one. fair Judgment affirmed.
SMITH, P. concurs. J., concurring:
Mr. CRAVEN specially JUSTICE forth set reasoning I concur in the result reached this case and four in that the case in that of the designated portion opinion part insanity predicated tried and on the defense of grounded the appeal defendant, homosexual, criminally the fact a latent upon homosexual for conduct an asserted repulsing his while responsible of criminal in this case does not establish lack attack. evidence “Homo nor on the responsibility part defendant. incompetency or incom sexual has no been with way equated insanity panic” Jones, 43 Ill.2d N.E.2d 195. petency. People Franey, Franey, minor, Steven mother and next by Mardell friend, In- v. State Farm Mutual Automobile Plaintiff-Appellant, Company al., surance et Defendants-Appellees. 70-204;
(No.
Fifth 1972. May District 29, 1972. denial rehearing June Modified