People v. Vining , 2023 IL App (1st) 220101-U ( 2023 )

2023 IL App (1st) 220101-USIXTH DIVISION
June 30, 2023
No. 1-22-0101
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. 22 CR 0470401
)
TERRELL VINING, ) The Honorable
) Vincent Gaughan,
Defendant-Appellee. ) Judge, presiding.
JUSTICE TAILOR delivered the judgment of the court.
Presiding Justice Mikva and Justice C.A. Walker concurred in the judgment.
ORDER
¶1 Held:The judgment of the circuit court is affirmed. The circuit court did not abuse its
discretion when it denied the State’s motion in limine seeking to admit a witness-decedent’s
statements under the excited utterance exception to the hearsay rule.
¶2 I. BACKGROUND
¶3 The State charged Terrell Vining with first degree murder for the January 15, 2020,
shooting and death of Sasha Moore. Carl Jackson, Moore’s boyfriend, witnessed the shooting and
No. 1-22-0101
made statements to the responding police officers. Jackson was the only witness to Moore’s
shooting. Before the State could try Vining, however, Jackson was killed in an unrelated shooting.
¶4 A. Motion in Limine Hearing
¶5 On October 28, 2021, the State filed a motion in limine to admit as evidence statements
Jackson made to police officers on the scene under the excited utterance exception to the rule
against hearsay. The motion presented the following background.
¶6 Moore advertised cannabis for sale on Facebook under her own Facebook profile. Vining,
under the Facebook profile “Chris Paul,” contacted Moore to purchase cannabis, and they set up a
location to meet. Moore and Jackson then drove Moore’s Chevrolet Malibu to the Falcon Fuel gas
station at 8255 South Halsted Avenue in Chicago. Jackson rode in the passenger seat.
¶7 While there is a discrepancy about the time due to the accuracy of the time stamp of Falcon
Fuel’s video surveillance footage, the motion describes what is shown on the video. The motion
states that at approximately 12:25 a.m., a black four-door vehicle resembling Moore’s Chevrolet
Malibu pulled into the gas station, parked, and stood stationary for a few minutes. At the same
time, the video captures Vining in a black, puffy fur-trimmed winter coat. The video then shows
the vehicle resembling Moore’s Malibu pulling out of the gas station and driving south on Halsted
Street and then west onto 83rd Street. The video then depicts Vining crossing Halsted Street and
heading west on 83rd Street. Although the State’s motion describes what is on the Falcon Fuel
video surveillance footage, the State did not offer the video itself as evidence at the hearing on the
motion in limine.
¶8 The motion further states that around 12:35 a.m., police officers responded to a
“ShotSpotter” report at 8259 South Peoria Street. Around the same time, Jackson flagged down a
police vehicle on 83rd Street. Moore was lying on the ground next to the driver’s side door of her
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Malibu with a gunshot wound to her head and back. Officers observed Jackson on the ground
sitting near the vehicle. Jackson was upset, crying, and screaming. A body worn camera (BWC)
captured part of the encounter with Jackson. The BWC footage shows that Jackson was on the
phone as officers approached him. The officers heard Jackson talking to his mother and stating
this was his fault, he should have stayed home, and Moore was shot over “some weed.” Officers
then asked Jackson to tell them who shot Moore:
“JACKSON: Oh my fuckin’ God bro. He just shot her in the head over some fuckin’ weed
bro. Over some fuckin’ weed.
OFFICER # 4: Who, who shot her?
OFFICER # 1: Who did?
JACKSON: I don’t fucking know dude bro. If I knew him I’d fucking tell you every
fuckin’ thing.
OFFICER #1: Okay.
JACKSON: His name is Chris Paul on fuckin’ Facebook bro.
OFFICER # 1: Chris Paul, Okay.
JACKSON: He wear glasses on his head bro.”
In a subsequent exchange, the officers prompted Jackson for any additional information:
“OFFICER # 4: How tall is he?
JACKSON: Bro I don’t (inaudible) I knew he was gonna do that bro.
JACKSON: Could I get my ID for I can go with her.
OFFICER # 4: Hold up man.
***
OFFICER # 4: You said dude’s name is Chris Paul on Facebook.
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JACKSON: Yeah.
OFFICER # 4: How, how old is he about?
JACKSON: I don’t know him at all. I don’t know him.
OFFICER # 4: You said he wears glasses, just give me all of his information man.
OFFICER # 5: Listen any rough estimate, anything that can help.
JACKSON: (inaudible).
JACKSON: 83, I mean 840 South Peoria. That’s the address he gave her to meet her at. I
knew what it was cause when we were coming out the gas station Bro he really was talking to
some dude in a green jacket and they kept looking. I was telling her to fucking move.
***
“OFFICER #5: Stop.
JACKSON: What you talking about man. I don’t know—twenty something.
OFFICER #5: There that’s all we need.
JACKSON: … his height, wore glasses.
OFFICER #5 There you go.
JACKSON: …black shoes…fuckin tan, fucking fur on it.
OFFICER #5: Keep going.
JACKSON: He got glasses, got little ass dreads in his hair. That’s all I fuckin’ know.”
¶9 Vining objected to the State’s motion and exhibits on several bases. First, Jackson did not
appear to have personal contact with the person who went by “Chris Paul” on Facebook and
Jackson did not have any independent knowledge of “Chris Paul.” Second, the transcript of the
BWC footage attached to the motion was inaccurate because there were discrepancies between
when the video starts and when the transcript begins. Third, it is unclear from the motion which of
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Jackson’s statements the State was seeking to admit as excited utterances. Fourth, the State did not
identify the police officers on the scene who spoke to or questioned Jackson. Fifth, the motion and
exhibits were vague and conflicting, and the State had an obligation to ensure the accuracy of the
proffered exhibits. Sixth, the statements could not qualify as excited utterances because Jackson
made them in response to police questioning and Jackson was under duress because the police
officers would not allow Jackson to leave until he answered their questions. Seventh, any statement
about “Chris Paul” was hearsay within hearsay because Jackson had no personal knowledge of
him and relied on information from Moore about “Chris Paul.”
¶ 10 At the hearing, the State called Chicago Police Officer Victor Nieves. Officer Nieves
testified that he was on duty on January 15, 2020, and that at approximately 12:30 a.m. he and his
partner were dispatched to 8259 South Peoria Street. Officer Nieves had a BWC, which he turned
on at 12:42 a.m. when he arrived on the scene. Nieves’s BWC recorded without audio for about a
minute. We note that it appears from the video from Officer Nieves’s BWC that Jackson’s
conversation with his mother occurs while Officer Nieves’s BWC is not recording any audio. The
transcription of the conversation with his mother appears to be from another officer’s BWC.
¶ 11 Officer Nieves characterized Jackson’s demeanor as hysterical when he approached him.
Jackson walked away, screamed, and attempted to check on Moore. Officer Nieves was present
while other police officers questioned Jackson. According to Officer Nieves, Jackson volunteered
at least some information without anyone asking him questions.
¶ 12 After the State laid the foundation, the State published Officer Nieves’s BWC footage. The
State then rested. The trial court then inquired about Jackson providing the incorrect address of the
gas station when he said it was located at 840 South Peoria. The State proffered that there was a
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“green gas station” two blocks away from the shooting and there was a video from the gas station
that the State intended to introduce into evidence later.
¶ 13 In denying the State’s motion in limine, the trial court found several flaws in the State’s
evidence. First, it found it “unusual” that the State only called Officer Nieves to testify when he
was neither the first officer to arrive at the scene nor the officer who questioned Jackson. Second,
the court questioned why the State did not introduce the BWC footage from the other responding
officers. Third, the court noted that Jackson was speaking to his mother at the time Officer Nieves
arrived on the scene.
¶ 14 The trial court concluded that there was “absolutely” a startling event that would cause an
excited utterance but nevertheless found that there was not an absence of time to fabricate the
statement and denied the State’s motion in limine. First, the court noted that Jackson was not
emotionally in control of himself, and that officers restrained him when he attempted to walk away.
Second, the court noted that Jackson was speaking to his mother before he made the statements at
issue. Third, the court questioned Jackson’s reliability because he incorrectly identified the address
of the gas station and because of his lack of control over his emotions. Fourth, the court stated that
there was no evidence of what occurred in the minutes before Office Nieves arrived on the scene
and turned on his BWC.
¶ 15 B. Motion to Reconsider Hearing
¶ 16 In what can only be considered an attempt to take a second bite at the apple, the State filed
a motion to reconsider, in which it sought to address the trial court’s factual findings and present
additional evidence, including proffering what Sergeant Cobb and Officer Lupo, who were present
on the scene, would testify to. Prior to summarizing the testimony the State proffered, we note for
clarity that the motion to reconsider sought to introduce new evidence and to have the trial court
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reconsider its previous ruling with the benefit of the newly offered evidence. The motion does not
address the legal standard or cite any case law but merely attempts to challenge the trial court’s
conclusion that there was not an absence of time to fabricate.
¶ 17 In its motion to reconsider, the State proffered that Sergeant Cobb would testify that
Jackson flagged him down at approximately 12:35 a.m. and informed him that someone shot
Moore. Cobb would testify that he observed Jackson was hysterical and on the phone when he ran
out into the street, and that Jackson described the offender as a black male wearing a black jacket
with fur. He would testify that Jackson reported the shooting to 911 around 12:36 a.m.
¶ 18 The State also sought to publish a radio dispatch, the transcript of which was not attached
to the motion to reconsider, made by Sergeant Cobb seeking assistance at the scene. Sergeant Cobb
remained on the scene as other officers, including Officer Nieves, arrived. Prior to Officer Nieves’s
arrival, Officer Dominic Lupo arrived and was wearing a BWC, which he activated about two
minutes before Officer Nieves activated his BWC. The State sought to publish Officer Lupo’s
BWC video footage to show that Jackson was crying and screaming in the background minutes
prior to when Officer Nieves arrived and that no officer was interacting or interviewing him at the
time.
¶ 19 At the hearing on the motion to reconsider, the State indicated that the testimony of these
two additional officers would illustrate the timeline of events and show that there was no time for
Jackson to fabricate. The State proffered that Sergeant Cobb would testify that he did not
immediately turn on his BWC because he was concerned with his and Jackson’s safety and because
he did not realize it was turned off. The State additionally proffered that Officer Lupo would
testify that he arrived at 12:38 a.m., no red crime scene tape was placed yet, and that other officers
put up crime scene tape after he blocked vehicular traffic from encroaching on the scene.
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¶ 20 Vining raised several objections to the State’s motion to reconsider. He argued that the
evidence does not support that Sergeant Cobb was the first officer on the scene because he did not
turn on his BWC until 12:44 a.m., and no police reports were prepared by him or other officers
explaining his actions between the time he arrived and the time he turned on his BWC.
Additionally, Officer Lupo’s BWC video footage shows other officers, who were not identified
and whose BWC video footage was not offered into evidence, on the scene when he arrived,
including an officer standing by Jackson. While the State contends that no officers spoke to
Jackson until Officer Lupo arrived, there is no evidence to support that conclusion. Finally, Vining
argued his due process rights were violated because he believed the State did not provide the exact
statements it sought to admit or the evidence that supported its motion.
¶ 21 The trial court denied the State’s motion to reconsider. Reaching the merits of the State’s
latest proffer, the court reasoned that because Sergeant Cobb failed to turn on his BWC in violation
of the general order requiring him to do so, a critical point in time is missing from Jackson’s
interactions with Sergeant Cobb. Sergeant Cobb arrived around 12:35 a.m. and Officer’s Nieves
did not start recording until he arrived at 12:42 a.m., leaving a seven-minute period of time in
which there is no video footage. The court reasoned that this lack of video footage undermined the
spontaneity of Jackson’s statements captured by Officer Nieves’s BWC. The court also took issue
with Officer Nieves testifying rather than a more experienced officer at the motion in limine
hearing. The trial court additionally noted that officers partially restrained Jackson during the
interactions that produced the statements the State sought to admit, and that Jackson’s hysteria
undermined his reliability.
¶ 22 The trial court again concluded that Moore’s shooting death would qualify as a shocking
event that could produce an excited utterance, but that, under the circumstances, Jackson had time
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to fabricate because of the period of time between Sergeant Cobb’s arrival and Officer Nieves’s
arrival. Additionally, the trial court found Jackson’s conversation with his mother was an
intervening factor. Finally, the trial court concluded that “even if [the statement] *** fulfill[ed] all
the criteria of the excited utterance, it’s undermined by Mr. Carl Jackson’s action at that time, and
how it was recorded, [and] that he was not reliable.”
¶ 23 The State timely filed a notice of appeal pursuant to Illinois Supreme Court Rule 604(a)(1)
(eff. Jan. 1, 2023). “Rule 604 (a)(1) allows an interlocutory appeal by the State of a pretrial
suppression order whenever the prosecutor certifies to the trial court that the suppression
substantially impairs the State’s ability to prosecute the case.” People v. Young, 82 Ill. 2d 234, 247
(1980). The State has so certified here. “For the purposes of *** Rule 604(a)(1), there is no
substantive distinction between evidence that is ‘excluded’ and evidence that is ‘suppressed.’ ”
People v. Drum, 194 Ill. 2d 485, 491 (2000).
¶ 24 II. ANALYSIS
¶ 25 A. Applicable Standard
¶ 26 We review evidentiary rulings on hearsay testimony and any exceptions to hearsay under
an abuse of discretion standard. People v. Caffey, 205 Ill. 2d 52, 89 (2001). We find an abuse of
discretion only where the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no
reasonable person would take the view adopted by the trial court. Id. Although the State urges de
novo review of the trial court’s denial of its motion in limine, we do so only when the “trial court’s
exercise of discretion has been frustrated by an erroneous rule of law.” Id. The State argues that
the trial court’s decision was “frustrated by an erroneous rule of law—application of the time-to-
fabricate factor[,]” but it provides no support for its contention. Examining the record, we find that
the trial court’s ruling was not frustrated by an erroneous rule of law. The trial court examined the
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“absence of time to fabricate” element and made a factual finding that Jackson had time to
fabricate. Therefore, we review the trial court’s ruling for an abuse of discretion.
¶ 27 Hearsay is a “statement, other than one made by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c) (eff. Oct.
15, 2015). Hearsay is not admissible unless an exception exists. Ill. R. Evid. 802 (eff. Jan. 1, 2011).
An excited utterance is an exception to hearsay and related to a startling event or condition made
while the declarant was under the stress or excitement caused by the event. Ill. R. Evid. 803 (eff.
Jan. 25, 2023). Excited utterances have an enhanced reliability “because when people are under
physical or mental shock, the stress of the situation typically causes them to express genuine belief
as to the facts they have just observed.” People v. Mayberry, 2020 IL App (1st) 181806, ¶ 27. To
qualify as an excited utterance, “there must be (1) an event sufficiently startling to produce a
spontaneous and unreflecting statement, (2) an absence of time to fabricate, and (3) a relation
between the statement and the circumstances of the event.” Id. In determining whether a statement
qualifies as an excited utterance, we employ a totality of circumstances analysis, considering time,
the mental and physical condition of the declarant, the nature of the event, and the presence or
absence of self-interest. People v. Sutton, 233 Ill. 2d 89, 107 (2009).
¶ 28 The parties do not dispute that Moore’s shooting death qualifies as a sufficiently startling
event. The dispute and the trial court’s ruling primarily focused on whether there was an absence
of time to fabricate and on the spontaneity of Jackson’s statements. There is no bright-line test to
determine the time to fabricate factor but the critical inquiry is “whether the statement was made
while the excitement of the event predominated.” Id. The determinative inquiry related to
spontaneity is whether the declarant would have made the statements if the questions had not been
asked. People v. Georgakapoulos, 303 Ill. App. 3d 1001, 1014 (1st Dist. 1999).
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¶ 29 B. Jackson’s Statements
¶ 30 As a threshold matter, the parties dispute whether the evidence proffered by the State in its
motion to reconsider may be considered on appeal. “The purpose of a motion to reconsider is to
bring to the court’s attention changes in the law, errors in the court’s previous application of
existing law, and newly discovered evidence that was not available at the time of the hearing.”
People v. Bravo, 2015 IL App (1st) 130145, ¶ 23 (Internal quotations omitted). Vining contends
that the motion is really a motion to reopen evidence, and the State argues that the motion sought
to address “the court’s previous misapplication and misapprehension of the law[.]” The motion to
reconsider plainly sought to introduce evidence that was available to the State at the time the
motion in limine was filed and argued. The State specifically acknowledged that the reason it
sought “to present this new evidence *** [is] not so that it would be admitted for purposes of
excited utterances but solely for the purpose to address *** the Court’s concern concerning the
second factor of absence of time to fabricate.” We find that the sole purpose of the motion to
reconsider was to introduce new—but previously available—evidence, and to re-argue the absence
of time to fabricate factor. Thus, the motion to reconsider was improper and allowing the evidence
would amount to an impermissible do-over on the motion in limine. Moreover, as we explain
further below, even if we were to consider the State’s newly proffered evidence in its motion to
reconsider, we would reach the same result.
¶ 31 We begin first with the evidence offered by the State in connection with its original motion
in limine: the transcript of the BWC video attached to the motion in limine, Officer Nieves’s
testimony, and Officer Nieves’s BWC camera footage, all of which the trial court admitted into
evidence. We have reviewed the footage from Officer Nieves’s BWC as well, and while we note
that the transcript attached to the motion in limine appears to be a compilation of audio from other
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BWC footage, the transcribed statements the State sought to admit are identical or substantially
similar to those heard on the footage of Officer Nieves’s BWC.
¶ 32 On appeal, the parties dispute whether Jackson’s statements were spontaneous and
unreflecting. Our supreme court has recognized that persistent questioning will destroy the
spontaneity of a statement. See People v. Zwart, 151 Ill. 2d 37, 48 (1992) (holding that declarant’s
statements were not excited utterances because the declarant was interviewed by three people at
least three times before she made her first statement regarding the abuse.). Vining argues that
Jackson’s statements were not spontaneous and unreflecting because Jackson made them under
the coercion of police officers and in response to questions asked by police officers. He notes that
Jackson kept leaving or attempting to leave and did not want to answer any of the police officers’
questions. Vining points to the BWC footage, which shows police officers positioning Jackson
near a fence, restraining him with their hands, and pulling him back as he left. Vining also argues
that the statements made by Jackson were not spontaneous because police officers asked more than
one or two questions and Jackson continued to move away from the officers. Cf. Georgakapoulos,
303 Ill. App. 3d at 1014-15 (“[Declarant]’s statements to Ray and Chavez were spontaneous even
though [they were] made in response to questions directed at him. [Declarant]’s statement to
Chavez occurred in response to the single question ‘what happened,’ ” and “to Ray’s questions,
what happened, who shot you, and ‘Who? What Sammy?’ ***.”). Vining asserts that given the
police officers’ questions and the restriction of Jackson’s movement, Jackson’s statements cannot
be a “spontaneous and sincere response” to Moore’s shooting because Jackson’s description of the
shooter was neither willingly nor spontaneously volunteered, and to find a statement made under
these circumstances an excited utterance would greatly expand the exception.
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¶ 33 The State responds that Jackson’s statements were spontaneous because he had just
witnessed Moore’s shooting death and his behavior and disjointed statements are consistent with
the circumstances. The State disputes Vining’s characterization that the police officers
“interrogated” Jackson, pointing out that Jackson walked away from the police officers so he could
check on Moore. The State also argues that Georgakapoulos supports its position, because it holds
that the spontaneity of a declarant’s statement was not destroyed even though multiple individuals
asked him more than two questions.
¶ 34 Like the declarant in Georgakapoulos, Jackson made statements in response to multiple
questions. However, this case is distinguishable from Georgakapoulos because the declarant there
made statements as he was lying on the ground, moments after someone shot him, when he was
seriously wounded and under the shock of the event. Georgakapoulos, 303 Ill. App. 3d at 1015.
Jackson, however, was not physically injured in Moore’s shooting death. Although it is clear from
the video that the shooting affected Jackson’s emotional state—he can be seen screaming and
pacing around at the crime scene—and his reaction was an expected one given his proximity to
Moore’s body and the amount of blood that is seen, Jackson was not under the stress of just having
been shot like the declarant in Georgakapoulos. Georgakapoulos is also distinguishable because,
there, the court found that the declarant would have made the statements identifying the shooter
even if he had not been prompted to do so because he had already volunteered that information to
another individual. Id. Here, by contrast, although Jackson told his mother on the phone that Moore
was shot over “some weed,” there is no evidence that he previously volunteered the subject
identification statements to anyone else at the scene before making the statements in response to
questions put to him by the police officers.
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¶ 35 We turn now to Jackson’s conversation with his mother prior to making the statements at
issue, and whether this intervening event provided him with sufficient time to reflect. According
to the transcript attached to the motion in limine, Jackson told his mother: “No, no, no. No, I don’t
got time to be hearing that mom. Mom I do not wanna fucking hear that. I don’t wanna hear that.”
Additionally, Jackson acknowledged that he “should have stayed in the house.” While Officer
Nieves’s BWC footage does not capture the conversation, it does confirm that Jackson was on the
phone when Officer Nieves arrived. In the video footage from Nieves’s BWC, Jackson can be seen
holding his phone next to his mouth and away from his ear and, at times, it appears he is speaking
into the phone as officers question him.
¶ 36 Vining relies on four cases to support his contention that Jackson’s intervening phone call
to his mother provided him with sufficient time to reflect, undermining the spontaneity of his
statements. In People v. Victors, the declarant spoke to two police officers, and made the subject
statements to the second officer five minutes after speaking to the first officer. People v. Victors,
353 Ill. App. 3d 801, 810 (2nd Dist. 2004). The Victors court found the statements to the second
officer were not excited utterances because the record did not reflect what questions were asked
by the first officer and the declarant had the opportunity to reflect before she spoke to the second
officer. Id. In People v. Sommerville, the court found that statements to a police officer were not
excited utterances because the declarant first had a lengthy conversation with her fiancé. People v.
Sommerville, 193 Ill. App. 3d 161, 175 (2nd Dist. 1990). In People v. Robinson, the declarant made
the subject statement to a police officer 3.5 hours after the startling event and after he had spoken
about the crime with her sister and brother-in-law. People v. Robinson, 73 Ill. 2d 192, 199 (1978).
The Robinson court reasoned that under these circumstances, to conclude that the “statements were
spontaneous *** would do utter violence to the rule.” Id. In People v. Jones, the court found that
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the excited utterance exception did not apply because eight hours had lapsed between the crime
and the statements, and the declarant had spoken to two deputies before making the statement.
People v. Jones, 106 Ill. 2d 342, 354 (1985).
¶ 37 In response, the State argues that Vining advocates for a per se rule that if a declarant first
speaks to another person, any statement that follows cannot qualify as an excited utterance, and
that our supreme court already rejected such a rule in People v. House, 141 Ill. 2d. 323 (1990). In
that regard, the State contends that Victors and Sommerville conflict with House. We do not agree.
While we acknowledge that there is no per se rule, the House court found “[t]he fact that the
declarant may have previously spoken to another is *** a factor to consider in determining
admissibility.” Id. at 386. Therefore, speaking with another person prior to making a statement,
although not dispositive, is a factor that may be considered when determining whether the
statement qualifies as an excited utterance.
¶ 38 The State does not address Robinson or Jones, but instead relies on two cases where
conversations with others did not prevent subsequently made statements from qualifying as excited
utterances. In People v. Perkins, this court found that a declarant’s statement was an excited
utterance even though the declarant had spoken to her son, mother, and brother before making the
statements to the officers. People v. Perkins, 2018 IL App (1st) 133981, ¶¶ 69-71. In that case, the
declarant had sustained a gunshot wound and the court reasoned that it was unlikely she fabricated
details of the crime while in pain and receiving medical treatment. Id. at ¶ 72. The State also relies
on Sutton, where the court found that a declarant’s statements to an officer while being transported
to a hospital after a gunshot wound qualified as an excited utterance even though the declarant had
previously spoken to other officers. Sutton, 233 Ill. 2d at 109. Again, the court reasoned that
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because the declarant had sustained injuries, he would not have spent the time between the crime
and his utterances fabricating a statement about the event. Id.¶ 39 While the caselaw is clear that speaking to another person before making a critical
statement does not preclude the statement from qualifying as an excited utterance, it is a
compelling factor that weighs against finding that the statement constitutes an excited utterance in
this case. Jackson spoke to his mother prior to making the statements at issue and while we do not
have evidence of their entire conversation, we do know that Jackson said he did not want to hear
what his mother was saying, knew that he should have stayed home, and Moore was shot over
“some weed.” Unlike the circumstances present in other cases where the declarant’s injury was a
compelling factor that supported a declarant’s lack of time to reflect despite an intervening
conversation with another, there is no indication here that Jackson was physically injured or that
he received any treatment. We cannot say, under these circumstances, that the trial court’s
conclusion–that Jackson’s intervening conversation with his mother weighed against a finding that
his later statements to the police officers were excited utterances–was an abuse of discretion.
¶ 40 The State and Vining also disagree about the significance of Jackson’s understandable
concern for Moore, and whether this weighs in favor of or against a finding of an excited utterance
here. Nieves’s BWC footage shows Jackson expressing his frustration that officers were not
assisting Moore, stating, “she got shot point blank in the fucking face and ya’ll moving like she
got shot in the fucking leg.” Additionally, at the outset, the footage shows Jackson asking to see
Moore at the hospital but stating he does not need to be examined at the hospital. However, after
police officers told him he could not go to the hospital, Jackson asks to go to the hospital again,
this time stating that he wants to be examined because he does not “feel good” and feels hurt. The
State contends that Jackson’s concern for Moore shows that he was still affected by the excitement
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of the shooting, thus weighing in favor of finding an excited utterance here. Vining, by contrast,
argues that Jackson’s words and behavior tend to show self-interest in that he had time to fabricate
pretext about needing a medical examination so he could see Moore after the officers refused his
request, weighing against a finding of an excited utterance.
¶ 41 Vining relies on People v. Lawler, in which the declarant was abducted and persuaded her
abductor to allow her to make a phone call. People v. Lawler, 142 Ill. 2d 548, 552-53 (1991). The
declarant called her father and, through a false story and a series of answers to yes or no questions,
relayed to her father that she had been abducted and needed assistance. Id. Our supreme court
found that while the abduction qualified as a sufficiently startling event, the conversation showed
that the declarant had time to reflect on the abduction and to conceive and execute the fabrication.
Id. at 560. Thus, the statements made to the father were inadmissible as excited utterances. Id. The
State contends Lawler is inapplicable because the declarant there admitted to the fabrication and
here, “Jackson never stated he had fabricated his statements identifying the shooter, and his
statements were not in response to leading questions.”
¶ 42 Lawler is an example of a fabrication that the declarant freely admitted, which is not present
in this case. However, the record does indicate that Jackson may have been motivated to fabricate
a pretext to ride in the ambulance with Moore to the hospital or to later be transported to the
hospital to be with her. We count at least four instances where Jackson asks to go with Moore but
officers told him that he cannot because they needed more information. In one instance, Jackson
specifically states: “I want to check on her bro, I don’t care about me bro.” After officers continue
to ask questions, Jackson again indicates he wants to go to the hospital. Concurrently, officers ask
Jackson to show them which gas station he is referring to by taking a ride. Jackson then states that
he needs to get “checked out” and asks if he can go to the same hospital as Moore. The statements
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the State sought to admit as excited utterances, including the statement confirming the Facebook
identity and physical description of the shooter and his clothes, were made between the first time
officers told Jackson that he could not go with Moore to the hospital to the time Jackson indicates
he is not feeling well. In other words, at the very same time Jackson made the statement the State
sought to admit as an excited utterance he had expressed a continued desire to leave the scene and
go to the hospital on the pretext that he needed medical assistance. We note that this is only one
part of the totality of circumstances that supports the trial court’s ultimate ruling to deny the motion
in limine.
¶ 43 Next, the State takes issue with the trial court’s finding that Jackson was less reliable
because of his emotional state. It argues that courts have found that excited utterances have
enhanced reliability, not less, in part because of the declarant’s reaction to the startling event. In
response, Vining argues that the State’s assertion assumes reliability of the statement prior to an
actual finding that the declarant made an excited utterance, and that the State improperly urges a
presumption of reliability when a declarant is an emotional state. Hearsay is generally unreliable
unless an exception, like an excited utterance, applies. See People v. Tenney, 205 Ill. 2d 411, 432-
433 (2002). As we have discussed previously, to determine whether the excited utterance exception
applies, we consider the totality of the circumstances. Here, the trial court’s discussion of reliability
and Jackson’s mental state was primarily made during the court’s evaluation of whether his
statements qualified as excited utterances. The trial court’s comments about Jackson’s lack of
reliability due to his “hysteria” are but one part of its totality of circumstances analysis, and we
find no abuse of discretion here. While the declarant’s mental condition is a well-established factor
to consider when evaluating whether a statement is an excited utterance, our caselaw does not
indicate that simply because a person is emotional—in this case hysterical—their statement is
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presumed to be an excited utterance. After all, the mental condition of the declarant is only one
part of the analysis and not a dispositive factor in and of itself.
¶ 44 The State next contends that the trial court expressed concerns during the hearings on the
motion in limine and the motion to reconsider that were not relevant in determining whether
Jackson’s statements qualified as excited utterances. These concerns included the fact that Officer
Nieves testified as opposed to another more experienced officer who had questioned Jackson; that
Sergeant Cobb did not turn on his BWC immediately after encountering Jackson, which potentially
violated a Chicago Police Department general order; and that Jackson did not correctly identify
the address of the gas station. In response, Vining contends that the court was, in part, concerned
that there was no evidence of what occurred prior to the arrival of Officer Nieves, including from
BWC video footage from the officers who questioned or otherwise spoke to Jackson. Moreover,
Vining argues that the court’s issue with proffered evidence concerning Sergeant Cobb, which was
first offered on the State’s motion to reconsider, was based, in part, on questions about the
completeness and sufficiency of the evidence. We find that these remarks relate in large part to the
inquiry into whether there was an absence of time to fabricate and are only one part of the totality
of circumstances the court considered. We cannot say—nor has the State shown—that any of these
remarks ultimately amount to an erroneous application of the law when all the other facts are
considered under the totality of the circumstances.
¶ 45 We note that the State’s newly proffered evidence related to Sergeant Cobb and Officer
Lupo does little to support its position. In fact, the testimony lends support to a finding that critical
periods of time prior to the start of Officer Nieves’s BWC video footage are unaccounted for,
which in turn supports both a finding of lack of spontaneity and a lack of absence of time to
fabricate. In other words, if we were to fully consider the proffered evidence not only does the
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proffered testimony support Vining’s arguments but also supports the trial court’s denial of the
motion in limine.
¶ 46 Considering the totality of the circumstances, we cannot say that the trial court abused its
discretion when it denied the State’s motion in limine. Because we have concluded that the trial
court did not abuse its discretion, we need not address Vining’s alternative argument that Jackson’s
statements would be barred under the confrontation clause of the sixth amendment.
¶ 47 III. CONCLUSION
¶ 48 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 49 Affirmed.
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