People v. Russell

2021 IL App (4th) 190691-U

Opinion

NOTICE FILED This Order was filed under 2021 IL App (4th) 190691-U August 17, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-19-0691 4th District Appellate limited circumstances allowed under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County SHOEN RUSSELL, ) No. 18CF1198 Defendant-Appellant. ) ) Honorable ) Roger B. Webber, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.

ORDER ¶1 Held: (1) By refusing to admit into evidence the prior consistent statement of defendant to his wife, the circuit court did not abuse its discretion. (2) The court did not abuse its discretion by admitting defendant’s prior felony conviction. (3) The circuit court’s findings the decedent’s identifications of defendant were dying declarations were not against the manifest weight of the evidence, and it was not an abuse of discretion to admit the identifications as dying declarations or as excited utterances.

¶2 The State charged, in three variations, that on August 23, 2018, defendant, Shoen

Russell, committed first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2016)), and in doing so,

personally discharged a firearm proximately causing the death of the victim (730 ILCS

5/5-8-1(a)(1)(d)(iii) (West 2016)). A jury found defendant guilty, and the circuit court of

Champaign County sentenced defendant to imprisonment for 65 years. Defendant filed a posttrial

motion and a motion to reconsider his sentence, both denied by the court. Defendant appeals on

three grounds. ¶3 Defendant first contends the circuit court abused its discretion by failing to admit a

recorded conversation with his wife while he was in jail awaiting trial, wherein defendant asserted

he did not mean to kill the victim when he discharged his firearm. Defendant pursued a theory of

self-defense at the trial, and sought to introduce his statement to rebut the State’s alleged

suggestion defendant had fabricated that he acted in self-defense. We find no abuse of discretion.

¶4 Second, defendant argues the circuit court should not have admitted his prior

conviction for aggravated battery to a peace officer, a felony. Though the battery offense occurred

more than 10 years prior to the instant offense, defendant was released from custody within 10

years. Defendant posits the prejudice resulting from the admission of this conviction outweighed

the probative value. Admitting the conviction was not an abuse of discretion.

¶5 Lastly defendant contends the circuit court should not have admitted the statement

of the victim, identifying defendant as the one who shot him, as a dying declaration or an excited

utterance. The circuit court’s determination the victim’s statements were dying declarations was

not against the manifest weight of the evidence, nor was it an abuse of discretion to admit the

statements as dying declarations or excited utterances.

¶6 Therefore, we affirm.

¶7 I. BACKGROUND

¶8 On August 23, 2018, Darin Mitchell (Mitchell) was shot at an American Legion in

Champaign, Illinois. Mitchell died later that evening from the gunshot wound at Carle Foundation

Hospital (Carle). The State charged defendant with several counts of first degree murder on August

24, 2018.

¶9 Both the State and the defendant filed motions to admit and exclude, respectively,

defendant’s 2007 felony aggravated battery conviction. The circuit court, after argument on the

-2- motions, granted the State’s motion to admit the conviction. The court subsequently admitted the

conviction at the jury trial. Defendant concedes his prison term ended within 10 years of the date

of trial, but argued below, and does herein, that the prejudicial effect of the conviction outweighs

its probative value.

¶ 10 The parties also filed motions directed to the two statements made by Mitchell

identifying defendant as the one who shot him. The State asserted, and now contends, the

statements were admissible as either dying declarations or excited utterances. Specifically,

Mitchell made one statement in the ambulance on the way to Carle and the other while at Carle.

¶ 11 The State exhibited to the circuit court body camera recordings of both statements.

In the ambulance, one of the ambulance personnel asked Mitchell if he had any idea who shot him.

Mitchell answered immediately, “Yeah. Shoen Russell.” During the ambulance ride, Mitchell

stated several times that he could not breathe, and the video suggests Mitchell was having trouble

breathing. One of the treaters advised as well during the ride that Mitchell did not have enough

oxygen in his blood. The urgent manner utilized by the personnel treating Mitchell also reflected

the gravity of his injuries, as did that several were attending to him. Finally, Mitchell was losing

copious blood from both the entry and exit wounds, and pulling his mask off in order to breathe.

¶ 12 As for the hospital, when a detective introduced himself to Mitchell at Carle,

Mitchell blurted “Shoen Russell shot me.” Medical personnel at Carle continued to attend to

Mitchell, and he was still having difficulty breathing. As well Mitchell asked several times for

sedation. One treater noted “there’s bleeding—copious amounts.” From the emergency room,

personnel took Mitchell to surgery which did not end successfully.

¶ 13 Subsequent to argument on the motions, the circuit court determined to admit

Mitchell’s identification statements as dying declarations as follows:

-3- “It’s clear the defendant was struggling to breathe. It was observed in the

presence out loud multiples times that he was bleeding profusely. He repeatedly

asked the medical personnel to let him get to a position where he could breathe. It’s

not unreasonable at all to conclude from the totality of those circumstances that he

believed death was imminent.”

¶ 14 The circuit court also ruled both statements admissible as excited utterances,

commenting:

“What we have is he was shot. Within some relatively short period of time,

he’s being transported to a hospital in an ambulance, and he's asked who did this or

what happened, and he replied, “Shoen Russell shot me” in the ambulance, so I—

and it’s not just the amount of time between the incident and the question, but the

instant response to the question that reflects the lack of time to fabricate a response.

The statement clearly relates to the circumstances of the startling occurrence.”

¶ 15 The jury trial began May 14, 2019, during which the State called nine witnesses.

Among these was Richard Davis (Davis), the manager of the American Legion where the shooting

occurred. Davis testified defendant got in Mitchell’s face, causing Mitchell to take a swing at

defendant. Davis recounted defendant fell backwards, and while doing so, pulled a pistol and shot

Mitchell once.

¶ 16 Mitchell’s landlord testified she saw defendant approach Mitchell, defendant swing

at Mitchell, and Mitchell swing back. The landlord recalled similarly defendant shot Mitchell after

Mitchell tried to hit defendant.

¶ 17 Steve Woodward (Woodward) testified he was at the American Legion, and was

acquainted with both defendant and Mitchell. Woodward heard defendant and decedent yelling at

-4- each other. Defendant pushed Mitchell, who then punched defendant. Defendant fell backwards,

pulled his weapon, and shot Mitchell. Woodward recounted he told one of the detectives that

evening that Mitchell hit defendant in the eye when defendant approached Mitchell. As well, he

testified he did not initially tell law enforcement defendant pushed Mitchell.

¶ 18 Brad Atkinson (Atkinson), a police officer, testified he rode in the ambulance with

Mitchell. He was wearing a body camera, which made the recording played to the jury depicting

the paramedic asking Mitchell if he knew who shot him. As noted, Mitchell identified defendant

as the one who shot him.

¶ 19 Detective Robert DeLong (DeLong) testified he met Mitchell at the ambulance on

arrival at Carle, and followed Mitchell to his room. DeLong’s body camera recorded his

conversation with Mitchell. DeLong testified he asked Mitchell his name, which the latter

provided. While DeLong was introducing himself, Mitchell stated “Shoen Russell shot me.” The

jury then viewed the camera recording. DeLong also noted Mitchell did not mention any

confrontation with defendant prior to the shooting.

¶ 20 DeLong’s testimony concluded the State’s case-in-chief.

¶ 21 Defendant called his sister, Tamika Russell (Russell), to testify. Russell drove

defendant and others to the American Legion. She did not observe defendant consume any alcohol

that evening, or notice any signs of intoxication.

¶ 22 Detective Amy Petrilli (Petrilli) testified she interviewed Davis, the American

Legion manager who testified earlier, after they viewed the facility’s video. Davis did not identify

defendant by name, and told Petrilli the shooting happened so fast that he was confused.

¶ 23 Police officer John Nickell (Nickell) also testified in defendant’s case. Nickell

spoke with Davis on arrival who told Nickell that Mitchell said something to defendant who

-5- immediately shot Mitchell. Nickell reported Davis’s description of the shooter changed after

seeing the facility’s surveillance video.

¶ 24 Defendant testified in his own defense. He offered initially that he was convicted

of aggravated battery in 2011, which was a felony. Defendant testified that as he approached a

crowd at the American Legion he was suddenly struck by Mitchell. Defendant stated he had no

prior interaction with Mitchell that evening. Defendant thought Mitchell had something in his hand

when he hit defendant, as he was hit hard which caused him to fall backwards. Defendant saw

Mitchell approach him again, was afraid of him given Mitchell’s first punch, so defendant shot

Mitchell. Defendant testified he carried a gun to protect himself as he has gotten older. Defendant

testified he did not intend to kill Mitchell, and thought of Mitchell’s family as his own.

¶ 25 Defendant reiterated on cross-examination he only shot Mitchell because he was

fearful after Mitchell hitting him. Defendant only wanted Mitchell to stop the attack. For this

reason, defendant aimed for Mitchell’s leg. The State asked defendant “So, you just tearfully said

you didn’t want to kill him. But *** you just walked away; didn’t you?” The State also asked

defendant “But now you’re crying and saying you didn’t want to kill him. But at the time you

could have helped him, you walked away; didn’t you?”

¶ 26 At the conclusion of defendant’s testimony, defendant moved to admit a recording

of a phone call defendant had with his wife while he was in pretrial detention. The circuit court

previously found the recording admissible at the request of the State pursuant to a motion in limine.

Therein, defendant states that he did not try to kill Mitchell, that it was not his intention, and that

he did not want Mitchell to die. Defendant argued the statements were consistent with his trial

testimony, and would serve to rebut the State’s suggestion during the cross-examination of

defendant that defendant had fabricated his self-defense theory.

-6- ¶ 27 In pertinent part, defendant argued:

“Under Rule 613(c), I am allowed to rebut an express or implied charge on

cross-examination that the witness is motivated or has been influenced to testify

falsely or that his testimony is a recent fabrication. Evidence is, however,

admissible that he told the same story before the motive or influence came into

existence or before the time of the alleged fabrication.

So, Mr. Larson is insinuating that today is the first time Mr. Russell has

indicated he had no intent to kill Darin Mitchell. That is not true. And I can

rehabilitate my client through the use of his prior consistent statement for

rehabilitation purposes under Rule 613(c).”

¶ 28 In response to the circuit court’s questioning, defendant clarified that the motivation

or influence to testify falsely the court should consider as the cause under the rule to admit the

recording was the use of the word “today” by the State in the cross-examination of defendant.

¶ 29 The circuit court denied defendant’s motion to admit the recording, noting:

“I think the—assuming that Mr. Larson is implying that this is a recent

fabrication, it would seem to me the motive or the influence would be either the

charge—the criminal trial or the fact that he was arrested and charged with the

offense of murder.”

¶ 30 During closing arguments, the State told the jury defendant offered a different

version “today,” twice referenced defendant’s “motivation” to lie, and suggested defendant made

up the story about Mitchell hitting defendant.

¶ 31 The jury returned a guilty verdict for first degree murder.

-7- ¶ 32 Defendant filed a motion to set aside the verdict and a motion for a new trial. The

motion asserted as grounds (1) the admission of the aggravated battery conviction, (2) the

admission of Mitchell’s identification of defendant as dying declarations or exited utterances,

(3) the denial of defendant’s motion during trial to admit body camera footage to impeach two of

the officers who testified they had not formed an opinion as to who the aggressor was, and (4) the

denial of defendant’s request to admit the recording of the jail call with his wife. The circuit court

denied the motion at the sentencing hearing, and sentenced defendant to 40 years in addition to 25

years for the firearm enhancement, for a total of 65 years’ imprisonment.

¶ 33 Defendant filed a motion to reconsider the sentence, which the circuit court denied.

The motion noted that as defendant’s age was then 49 years, the sentence amounted to a life

sentence. As such, defendant argued the sentence was excessive and would cause extreme hardship

for his family.

¶ 34 From the order denying the motion to reconsider the sentence, defendant appealed.

¶ 35 II. ANALYSIS

¶ 36 A. The Refusal to Admit the Prior Consistent Statement Was Not Error

¶ 37 Defendant argues the circuit court should have admitted the recorded prior

statement to his wife that he did not mean to kill Mitchell to rebut what defendant characterizes as

the State’s implication self-defense was defendant’s recent fabrication. Defendant also argues the

court utilized the incorrect standard.

¶ 38 We review evidentiary rulings for an abuse of discretion. People v. Appelt, 2013 IL

App (4th) 120394, ¶ 85. A ruling “is an abuse of discretion only if it is illogical, arbitrary, or

contrary to law.” Id. ¶ 86. “In other words, a decision is an abuse of discretion only if no reasonable

person could agree with the decision.” Id.

-8- ¶ 39 Generally a prior consistent statement is inadmissible hearsay pursuant to Illinois

Rule of Evidence 613(c) (eff. Oct. 15, 2015), with certain exceptions, to wit:

“Except for a hearsay statement otherwise admissible under evidence rules, a prior

statement that is consistent with the declarant-witness’s testimony is admissible,

for rehabilitation purposes only and not substantively as a hearsay exception or

exclusion, when the declarant testifies at the trial or hearing and is available to the

opposing party for examination concerning the statement, and the statement is

offered to rebut an express or implied charge that:

(i) the witness acted from an improper influence or motive to testify falsely,

if that influence or motive did not exist when the statement was made; or

(ii) the witness’s testimony was recently fabricated, if the statement was

made before the alleged fabrication occurred.” Ill. R. Evid. 613(c)(eff. Oct. 15,

2015).

¶ 40 Rule 613(c) is consistent with the long-standing common law rule that “statements

made prior to trial for the purpose of corroborating trial testimony are inadmissible.” People v.

Cuadrado, 214 Ill. 2d 79, 90 (2005). As well, the exception for admission has applied “when it is

suggested that the witness had recently fabricated the testimony or had a motive to testify falsely,

and the prior statement was made before the motive to fabricate arose.” Id. See also People v.

Emerson, 97 Ill. 2d 487, 501 (1983).

¶ 41 Defendant pursued a self-defense theory at trial, admitting he shot Mitchell, but

proffering that he did not intend to kill Mitchell. Defendant testified in support of his theory. On

cross-examination the State used the word “today” several times while questioning defendant.

Defendant argues the State in so doing implied that defendant fabricated the self-defense for trial.

-9- Based on this implied fabrication, defendant contended at trial, as he does now, that the circuit

court should have granted defendant’s motion to admit a recorded call with defendant’s wife

wherein defendant admits he shot Mitchell but states he did not intend to kill Mitchell. Defendant

also proffers the court confused the two prongs of the rule, incorrectly applying the first relating

to improper motive.

¶ 42 Notably, the record is not as clear as we would like it to be. During argument before

the circuit court, defendant did not identify which of the subsections of Rule 613(c) he believed

applied, though he referenced Rule 613(c) generally more than once. Both defendant and the court

during the colloquy blended the considerations under the subsections, often referencing them in

one sentence, but without specifying that they spoke of two different standards. At times both the

court and defendant appeared to speak of one or the other subsection, but only by the language

used and not by number.

¶ 43 During argument on defendant’s motion to admit his prior consistent statement, the

circuit court queried defense counsel about what the improper motive defendant alleged was, and

when the purported influence arose. Defendant identified in response the nature of the cross-

examination, and specifically the use of “today.”

¶ 44 Ultimately, the circuit court ruled based on Rule 613(c)(i), noting the statement

occurred after the motive arose. We cannot say the court abused its discretion. The court

determined defendant had the same motive to profess he did not intend to cause Mitchell’s death

at the time of the jail call, given that defendant was detained pending his murder trial, that he did

at the time of trial. Reasonable people could agree with such conclusion, and it is not arbitrary or

illogical. As in Emerson, “the motive for testifying falsely existed prior to the time” when the

statement was made at the jail. Emerson, 97 Ill. 2d at 501.

- 10 - ¶ 45 The circuit court therefore did not commit an abuse of discretion when it denied

defendant’s motion to admit the recording of the jail call with his wife.

¶ 46 B. The Circuit Court Properly Admitted Defendant’s Prior Conviction

¶ 47 The defendant contends the circuit court should not have admitted his prior felony

conviction for aggravated battery. Defendant admits his release from incarceration was within 10

years from the date of the offense herein. Defendant asserts the admission into evidence of this

conviction was highly prejudicial and had no probative value.

¶ 48 We review the admission of a prior felony conviction for an abuse of discretion.

People v. Burlington, 2018 IL App (4th) 150642, ¶ 36. The definition we provide above of what

constitutes such an abuse applies equally here.

¶ 49 As discussed in Burlington, our supreme court has provided a three-prong analysis

to weigh the admission of a prior conviction to impeach the credibility of a witness. Id. As

defendant does not contest the first two requirements for admission, that the prior offense carried

a potential penalty in excess of one year and that less than 10 years have elapsed since the release

from confinement, only the last factor merits discussion herein. This third factor directs the circuit

court to weigh the probative value of the prior conviction against the potential prejudice flowing

from the admission of the prior conviction. Id.

¶ 50 The circuit court is to consider while performing the balancing test required by the

third prong “the nature of the prior conviction, the nearness or remoteness of that crime to the

present charge, the subsequent career of the person, the length of the witness’[s] criminal record,

and whether the crime was similar to the one charged. [Citation.]” (Internal quotation marks

omitted.) Id.

- 11 - ¶ 51 Our supreme court has directly addressed the admissibility for impeachment

purposes, of a testifying defendant asserting self-defense, of a prior aggravated battery conviction

in a prosecution for murder. See, e.g., People v. Williams, 173 Ill. 2d 48 (1996). In Williams, as

herein, the defendant argued his aggravated battery conviction had no bearing on defendant’s

credibility, but was rather prejudicial since it suggested a propensity for violence. Williams, 173

Ill. 2d at 80-81. After reviewing the well-established precedent, the supreme court noted it had

previously “emphasized the importance of conducting the balancing test of probative value versus

unfair prejudice before admitting prior convictions for impeachment purposes. [Citation.]” Id. at

81-82. Of particular concern to the supreme court was the “indiscriminate admission” of prior

felonies for impeachment without regard to the balancing test, as well as admission for

impeachment to demonstrate a tendency to act in a violent manner. Id. at 82. The supreme court

therein explicitly reaffirmed that the balancing test should be employed. Id. at 83.

¶ 52 As is the case here, the Williams supreme court noted the transcript demonstrated

the circuit court was aware of the factors the court should consider. Id. Unlike Williams, the circuit

court articulated the balancing test considerations. Given that, like Williams, “there is no reason to

suppose that he disregarded the familiar, well-established Montgomery standard in determining

that the impeachment was proper.” Id.

¶ 53 In Burlington, we addressed the propensity issue in matters where a defendant’s

testimony constitutes the core of his defense. When a defendant testifies, prior convictions are

“crucial in measuring the defendant’s credibility. [Citation.]” Burlington, 2018 IL App (4th)

150642, ¶ 38. We compared the facts there to those in People v. Atkinson, 186 Ill. 2d 450 (1999).

In both cases, the circuit courts properly admitted prior burglary convictions for impeachment

purposes in burglary prosecutions. Burlington, 2018 IL App (4th) 150642, ¶¶ 38-40. Like these,

- 12 - the circuit court herein recognized defendant’s testimony would be integral to his defense, and

therefore defendant’s credibility a central issue. As well like Atkinson and Burlington, the court

instructed the jury that the prior conviction should only be considered for credibility and not as

evidence of defendant’s guilt as to murder.

¶ 54 For the foregoing reasons, we do not find the circuit court abused its discretion by

admitting defendant’s prior aggravated battery conviction.

¶ 55 C. The Admission of Mitchell’s Identifications of Defendant Was Proper

¶ 56 The circuit court admitted two police officer body camera recordings in which

Mitchell identified defendant as the one who shot him. One recording was made in an ambulance

on the way to the hospital, and the other while Mitchell was undergoing treatment in the emergency

room. The court admitted these as dying declarations and excited utterances. As noted, we review

evidentiary rulings for an abuse of discretion. Appelt, 2013 IL App (4th) 120394, ¶ 85.

¶ 57 Relevant to the discussions of the identifications by the victim is that three

witnesses testified at trial that defendant shot Mitchell, which was corroborated by testimony

relating to review of the surveillance video. Further, given defendant’s theory was self-defense,

and consistent with that, defendant admitted he shot Mitchell. In short, the evidence against

defendant is strong, particularly the evidence that identifies defendant as the shooter.

¶ 58 1. Dying Declarations

¶ 59 The question of what to infer from someone’s conduct or statements is a question

of fact, on which we defer to the circuit court unless the inferences are against the manifest weight

of the evidence. People v. Jenkins, 2013 IL App (4th) 120628, ¶ 19. Such determinations are

“against the manifest weight of the evidence only if the evidence clearly and indisputably calls for

the opposite factual determination. [Citation.]” Id. at 20.

- 13 - ¶ 60 Illinois Rule of Evidence 802 (eff. Jan. 1, 2011) provides that hearsay is generally

not admissible absent exceptions provided for by rule or statute. Hearsay is a statement made

outside of the hearing in question, offered to prove the truth of the matter asserted. Ill. R. Evid.

801(c) (eff. Oct. 15, 2015). Thus, Mitchell’s statements offered to prove the identity of defendant

as the one who shot Mitchell are hearsay, given he did not make the statements at trial. The

statements would not be admissible absent an exception.

¶ 61 One of the exceptions to the hearsay rule invoked by the State and circuit court

supporting the admission of Mitchell’s out of court statements is the dying declaration exception

as follows:

“(2) Statement Under Belief of Impending Death. In a prosecution for

homicide, a statement made by a declarant while believing that the declarant’s death

was imminent, concerning the cause or circumstances of what the declarant

believed to be impending death.” Ill. R. Evid. 804 (b)(2) (eff. Jan 1, 2011).

¶ 62 The only issue defendant raises concerning the admission of the statements as dying

declarations is whether Mitchell believed his death was imminent.

¶ 63 In Jenkins we discussed several circumstances where both the circuit and appellate

courts determined statements were admissible dying declarations. In one of those, the decedent

identified the shooter at the crime scene, minutes after having been shot. Jenkins, 2013 IL App

(4th) 120628, ¶ 26. In another, the decedent had just arrived in the emergency room and, while

being treated, repeatedly asked a nurse to tell his mother he had really tried and loved her. Id.

(citing People v. Graham, 392 Ill. App. 3d 1001, 1006-07 (2009)).

¶ 64 Circumstantial evidence, as well as a victim’s statements, can also demonstrate the

decedent’s belief death is imminent. Graham, 392 Ill. App. 3d at 1006. Therein, the victim

- 14 - complained he was cold to medical personnel, was losing consciousness and copious amounts of

blood, and his blood pressure was dangerously low. Id. Additionally, approximately six treaters

were working on the victim, he knew he had been shot, and he made the statements noted above.

Id. at 1006-07. The victim’s statement was thus properly admitted as a dying declaration. Id. at

1007.

¶ 65 In another decision we explored in Jenkins, the victim complained he could not

breathe, knew he had been shot, was bleeding, and was experiencing such pain he wanted no one

to touch him. People v. Walker, 262 Ill. App. 3d 796, 801 (1994). The finding this victim’s

statements was a dying declaration was proper and not against the manifest weight of the evidence.

Id.

¶ 66 As to the ambulance statement, Mitchell repeatedly said he could not breath, and

was pulling off his mask presumably so he could. Mitchell knew he had been shot, as he identified

defendant as the one who shot him. Mitchell was losing enormous amounts of blood through his

wounds, and was being treated frantically by several people. The video supports Mitchell was

having trouble breathing, and that one of the providers advised Mitchell did not have sufficient

oxygen in his blood.

¶ 67 As for Mitchell’s identification of defendant in the hospital, Mitchell was

continuing to experience trouble breathing, and asked several times to be sedated. One treater

noted Mitchell was losing copious amounts of blood. From the emergency room, Mitchell was

taken to surgery which concluded with Mitchell’s death.

¶ 68 The circumstances surrounding Mitchell’s statements demonstrate Mitchell

thought his death was imminent. The evidence does not clearly or indisputably call for another

conclusion. The circuit court’s finding Mitchell’s statements were dying declarations is not against

- 15 - the manifest weight of the evidence. The court’s admission of the statements therefore was not an

abuse of discretion.

¶ 69 2. Mitchell’s Statements as Excited Utterances

¶ 70 We review rulings on admissibility relative to the hearsay rule and its exceptions

for an abuse of discretion. People v. Kinnerson, 2020 IL App (4th) 170650, ¶ 33.

¶ 71 Illinois Rule of Evidence 803 (eff. Sept. 18, 2018) provides for certain exceptions

to the general hearsay rule. One addresses excited utterances:

“(2) Excited Utterance. A statement relating to a startling event or condition

made while the declarant was under the stress of excitement caused by the event or

condition.” Ill. R. Evid. 803(2) (eff. Sept. 18, 2018).

The excited utterance exception is also referred to as the spontaneous declaration exception.

Kinnerson, 2020 IL App (4th) 170650, ¶ 30.

¶ 72 To admit a statement pursuant to such exception, “there must be an occurrence

sufficiently startling to produce a spontaneous and unreflecting statement, there must be an

absence of time for the declarant to fabricate the statement, and the statement must relate to the

circumstances of the occurrence. [Citation.]” People v. Sutton, 233 Ill. 2d 89, 107 (2009). The

court is to analyze the totality of the circumstances, “including time, the mental and physical

condition of the declarant, the nature of the event, and the presence or absence of self-interest.” Id.

¶ 73 Of note herein, the period of acceptable time between the triggering event and the

statement varies widely. Id. The consideration that is critical as to timing is whether the excitement

of the generating event predominated at the time of the statement. Id. at 107-08.

- 16 - ¶ 74 Also relevant to our discussion herein is that both statements volunteered and those

made in response to questions can be admissible pursuant to this exception. People v. Williams,

193 Ill. 2d 306, 353 (2000).

¶ 75 In Sutton, the victim’s statements made in the ambulance, more than 20 minutes

after he had been shot, were excited utterances. Sutton, 233 Ill. 2d at 109. Medical personnel were

cleaning the blood off of the victim, giving him oxygen, and otherwise attending to him. Id. The

victim was highly emotional and had to take off his oxygen mask to talk, to answer questions posed

by a police officer. Id. The totality of the circumstances supported admission by the trial court

pursuant to the spontaneous declaration exception. Id.

¶ 76 The circuit court properly admitted statements made during a 911 call as excited

utterances in Kinnerson. The defendant therein argued the victim was safe by the time of the 911

call, after having been beaten and injured in her home. Kinnerson, 2020 IL App (4th) 170650,

¶ 34-35.

¶ 77 Defendant claims the circuit court should not have admitted Mitchell’s

identification of defendant because the first was in response to a question, Mitchell was safe from

further harm in the ambulance and hospital, and the event was over. That the first was in response

to a question does not destroy the spontaneity. Mitchell had been shot, was bleeding profusely,

and was experiencing difficulty breathing. He was being attended to by multiple providers, and

seeking to be sedated. The totality of the circumstances evidence Mitchell made the statements

admitted by the court while the trauma of the shooting predominated. We cannot say the court

abused its discretion by admitting Mitchell’s statements as excited utterances.

¶ 78 III. CONCLUSION

¶ 79 For the foregoing reasons, we affirm the circuit court’s judgment.

- 17 - ¶ 80 Affirmed.

- 18 -