People v. Harris

603 N.E.2d 65, 236 Ill. App. 3d 574, 177 Ill. Dec. 284, 1992 Ill. App. LEXIS 1693
Appellate Court of Illinois·Decided October 20, 1992·No. 2-90-1392·Published·Cited by 10 cases

Opinion

JUSTICE GEIGER

delivered the opinion of the court:

After a bench trial the defendant, Samuel Harris, was found guilty of first degree murder and unlawful possession of a weapon by a felon. The cause then proceeded to a sentencing hearing at which the death penalty was found to be inappropriate, and the defendant was sentenced to a 100-year term of imprisonment. The defendant argues on appeal that: (1) the victim’s statement while in the hospital following her shooting constituted a dying declaration and should have been admissible; (2) the court erred in refusing to allow cross-examination of a witness regarding the content of a statement, a portion of which was introduced during direct examination; and (3) the sentence of 100 years’ imprisonment was excessive.

Evidence at trial revealed the following relevant events. On the evening of January 10, 1990, a male assailant, wearing a hooded sweatshirt, entered the apartment of Gail Long. His hood was tied around his face, and he was carrying a 12-gauge sawed-off shotgun. Present in the apartment were Gail Long, her two children, Jamall and Jasmine, ages 10 and 1, and her nephew Frederick Crawford. The assailant grabbed Jamall around the neck and announced, “Gail, I want weed, money or cocaine.” Jamall handed his mother her purse and she dumped the contents on the floor. The assailant then said, “Gail, if you don’t give me weed *** or money or cocaine, I’m going to shoot your son.” The assailant was then pointing the weapon at JamaU’s head. Gail Long pleaded with the assailant not to shoot her son, and repeatedly stated, “Please Sam don’t.”

A curl of hair fell out of the assailant’s hood, and he pulled the drawstring tighter and told Gail Long to “shut up.” The assailant then indicated that he would count to five and then shoot her if she did not produce the items he requested. The assailant counted to four, shot Gail Long in the stomach and exited the apartment. Gail Long died at 2 a.m. on January 11, 1990, at St. Therese Hospital, from hemorrhagic shock caused by the shotgun wound to her abdomen.

A week after the occurrence, Frederick Crawford viewed four lineups where the candidates were wearing hoods tied tight around their faces. In two of the four lineups, Crawford identified a person who was not the defendant, but noted that the assailant appeared to have a larger upper body or had something stuffed in his sweatshirt to make him look larger. In the last two lineups Crawford identified the defendant as the assailant.

Roger Eastman testified that he had known the defendant for eight years. He stated that on January 10, 1990, the defendant asked him to obtain a gun for him. Eastman further testified that on that same day he gave the defendant a sawed-off shotgun and a single shell, walked to the apartment building of Gail Long with the defendant, and the defendant told him to wait outside of the building. Eastman testified that after waiting about two minutes he heard a “boom” which sounded like a shotgun discharging, and the defendant ran out of the building. Eastman testified that shortly thereafter the defendant told him that he had needed to shoot somebody in the apartment since the person had been “messing” with him. He also testified that the defendant then returned the shotgun.

Joe Lee White, who was incarcerated in the Lake County jail with the defendant, testified for the State, pursuant to an agreement that he would only be sentenced to three years’ imprisonment on a burglary charge that was pending against him. He testified that the defendant related to him the events that occurred on the night of Gail Long’s death. White’s testimony substantially comported with the testimony of Roger Eastman. White’s testimony added, however, that the defendant told him that he had to shoot Long after she recognized him and that he should have “killed all the people,” including Eastman.

Officer Richard McKissick testified that he went to the emergency room on January 10 to speak with Gail Long. He testified that he noticed a large wound, approximately three to four inches in diameter, on the right side of her abdomen. She had lost a lot of blood and she was being prepared for a blood transfusion. He also thought that she appeared to be experiencing “a lot of pain.” When the defense asked Officer McKissick what Gail Long said to him, the State objected, arguing that her statement was hearsay. The defendant argued that the conversation would have revealed Long’s belief as to who shot her and that it constituted a dying declaration, an exception to the rule against the admission of hearsay. The court sustained the State’s objection and did not allow Gail Long’s statement into evidence.

The defendant was found guilty on all counts, and on September 26, 1990, a sentencing hearing was held to determine his eligibility for the death penalty. The jury returned a finding of eligibility. The cause was continued to September 27, 1990, following the defendant’s waiver of a jury, for a hearing on mitigation and aggravation.

In aggravation, Dr. Larry Blum testified that the victim would have experienced pain with the type of injury she had sustained. Also, Joe Lee White testified that the defendant said that he should have “killed all the people” in the apartment.

In mitigation, numerous witnesses testified. They included relatives, friends, a pastor and a former teacher. Recurrent in the testimony was the defendant’s respect for his family and his fondness for children. The court was informed of the defendant’s relationship with a cousin, whom he had helped cope with cerebral palsy, and his relationship with a youth afflicted with dwarfism.

Following testimony and arguments, the court found the death penalty to be inappropriate and sentenced the defendant to the maximum extended term of 100 years. The court stated that it took into consideration the fact that there were children present during the crime, the defendant’s lack of remorse and the background of the defendant, which included the fact that he was on parole and had a previous armed violence conviction. On November 27, 1990, the defendant filed a motion to reduce the sentence, which was denied after a hearing.

On appeal, the defendant first argues that the court erred in denying admission of Gail Long’s statement as a dying declaration and therefore an exception to the hearsay rule. The defendant asserts that although Gail Long was not told that she was dying, and although she failed to express fear of her impending death, she “must have known she was near death.” The defendant also requests this court to review testimony adduced at the second phase of the defendant’s sentencing hearing and draw the inference that Long was aware of her impending death. The State argues initially the defendant’s argument on appeal should be rejected to the extent that it is based on evidence adduced at the sentencing hearing. It also argues that Gail Long’s statement does not satisfy the requirements of a dying declaration.

A dying declaration is a statement of fact made by the victim, relating to the cause and circumstances of the homicide. (People v. Cobb (1989), 186 Ill. App.

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People v. Harris, 603 N.E.2d 65, 236 Ill. App. 3d 574, 177 Ill. Dec. 284, 1992 Ill. App. LEXIS 1693 (Ill. Ct. App. 1992).

603 N.E.2d 65 (People v. Harris) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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